Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable. (ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained. (iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (International Coal Group, Inc.)
Investment Property. (i) ARTICLE IV As of the date hereof, it hereof (1) it has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to Section II.B. of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by ControlInformation Certificate, (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained Interests with respect to which the Agent has a perfected first priority security interest in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed such Pledged Interests, subject only to the Perfection Certificate Permitted Encumbrances, and (3) it has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed Section II.B. of the Information Certificate pursuant to which the Perfection Certificate, as applicableAgent has a perfected first priority security interest in such Securities Accounts by Control.
(iii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit AgreementSecurities, such Pledgor Grantor shall promptly (Ain any event within 30 days of its acquisition or such longer period as the Agent may reasonably agree)
(a) notify the Agent thereof and endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities Securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Collateral Agent. If any securities Securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit AgreementGrantor, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereofuncertificated, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xa) grant Control to the Agent and cause the issuer to agree to comply with instructions from the Collateral Agent as to such securitiesSecurities, without further consent of any Pledgor Grantor or such nominee, (yb) cause a Security Entitlement security entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securitiesSecurities. Except as expressly permitted under the Credit Agreement, no Pledgor Grantor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 ten (10) Business Days' ’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that which are proceeds of the pledged Investment Property Pledged Interests in trust for the benefit of the Collateral Agent and within 5 Business Days of actual promptly upon receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral an account with respect to which the Agent agrees has Control, or with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions respect to any issuer of uncertificated securitiesInvestment Property or additional Securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent take such actions as required above with respect to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occurSecurities. No Pledgor Grantor shall grant Control over any Investment Property Pledged Interests to any person Person other than the Collateral Agent.
(ii) As between the Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesInterests, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged SecuritiesInterests, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(cSECTION 3.4(b) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors Grantors or any other person Person under any Control Agreement or under applicable lawLaw. Each Pledgor Except to the extent being contested in compliance with Section 6.04 of the Credit Agreement, each Grantor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit AgreementInterests. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors Grantors shall promptly reimburse and indemnify the Collateral Agent from for all costs and expenses incurred by the Collateral Agent under this Section 3.4(cSECTION 3.4(b) in accordance with Section 11.03 of the Credit Agreementand under SECTION 9.3 hereof.
Appears in 1 contract
Samples: Security Agreement (Tilly's, Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 3.4(b) annexed to the Perfection Certificate hereto and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, other than those designated therein as "Not Subject to a Control Agreement as of the Closing Date"; provided that the aggregate amount on deposit in or credited to such Securities Accounts and Commodity Accounts that are not subject to a Control Agreement shall not exceed (A) prior to February 28, 2004, an amount equal to $500,000 in the aggregate for all such Deposit Accounts at any time outstanding or (B) from and after February 28, 2004, an amount equal to $100,000 in the aggregate for all such Securities Accounts and Commodity Accounts at any time outstanding, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities or securities that are expressly permitted to be excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement Agreement, except as contemplated by clause (1) above, with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, Property other than any certificated securities of a Foreign Subsidiary not required that are expressly permitted to be pledged hereunder or under excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, Property other than any securities of a Foreign Subsidiary not required that that are expressly permitted to be pledged hereunder or under excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement, Agreement are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property other than any that are proceeds expressly permitted to be excluded from the Pledged Collateral pursuant to Section 5.11(b) of the pledged Investment Property Credit Agreement in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or such Investment Property and any new securities, instruments, documents or other property by reason of ownership of the such Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Col- lateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Ionics Inc)
Investment Property. (i) As of the date hereof, Each Grantor hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 17 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control (other than such Securities Accounts or Commodity Accounts (x) in which the average monthly balance on deposit in such account is less than $50,000 or (y) in which the granting of a security interest and entering into a Control Agreement with respect to such Securities Accounts or Commodity Accounts is prohibited by Requirements of Law) and (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Stock under the Pledge Agreements and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other such Grantor shall promptly, but in no event later than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementthree (3) Business Days, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly promptly, but in no event later than three (3) Business Days, notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and Agent. Notwithstanding anything to the securities intermediary at which such account is maintainedcontrary in this clause (ii), in no event shall the foregoing include any “Collateral” as defined in the Pledge Agreements.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.05(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors Grantors or any other person Person under any Control Agreement or under applicable law. Each Pledgor Grantor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors Grantors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.05(c).
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 17 annexed to the Perfection Certificate and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 17 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 17 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) use reasonable efforts to cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve the Administrative Agent, any Securities Intermediary or Commodity Intermediary Intermediary, if any, of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all reasonable costs and out-of-pocket expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 11.5 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case . The provisions of withholding consent to investment or withdrawal rights after giving effect this Section 3.4(c) shall not apply to any such investment and withdrawal rights would occurFinancial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, such Pledgor shall promptly (1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent and or (2) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the securities intermediary at which such account is maintainedCollateral Agent.
(iii) Subject If any Pledgor shall at any time own or acquire, directly or through a nominee, any uncertificated securities constituting Investment Property, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to Section 11.1(ii)an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (3) upon the occurrence and during the continuance of an Event of Default, arrange for the Collateral Agent to become the registered owner of such securities. The Collateral Agent agrees with each Pledgor that Collateral Agent shall not give any instructions as to such uncertificated securities pursuant to clause (1) above, unless an Event of Default has occurred and is continuing.
(iv) As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement Security Entitlement or deposit by, or subject to the control Control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Southern Graphic Systems, Inc.)
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly promptly, and in any event within ten Business Days of acquiring such security (Aor such later date as may be agreed to in writing by the Collateral Agent in its sole discretion), (i) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bii) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly promptly, and in any event within ten Business Days of acquiring such security (or such later date as may be agreed to in writing by the Collateral Agent in its sole discretion), notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xi) cause the issuer to agree to comply with Entitlement Orders or other instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yii) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (ziii) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor The Pledgors shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' at least 30 days’ (or such shorter period as may be agreed to in writing by the Collateral Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights or dealing rights, would occur. The provisions of this Section 3.4(d) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person Person other than the Collateral Agent, and each Pledgor shall promptly (and in any event within ten Business Days) notify the Collateral Agent if any issuer of Pledged Interests takes any action to have any Pledged Interests issued by it treated as Securities under Article 8 of the UCC and such Pledgor shall take all steps deemed necessary, advisable or prudent by the securities intermediary at which Collateral Agent in order to grant Control of such account is maintained.
(iii) Subject to Section 11.1(ii), as Pledged Interests in favor of the Collateral Agent. As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.4(d) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person Person under any Control Agreement or under applicable lawLegal Requirements. Each Pledgor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent in accordance with Section 10.03 of Credit Agreement from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.4(d).
Appears in 1 contract
Samples: Security Agreement (Internap Network Services Corp)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xA) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yB) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zC) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Administrative Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Administrative Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Administrative Agent's Control. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all costs and expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 12.03 of the Credit Second Lien Term Loan Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Futures Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority Second Priority security interest in each such Securities Accounts Account and Commodity Accounts Futures Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Futures Account with any Securities Intermediary or Commodity Futures Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Futures Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractFutures Intermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Futures Intermediary shall be reasonably acceptable to the Collateral Agent (it being understood that any Securities Intermediary or Commodity Intermediary deemed reasonably acceptable by the First Lien Collateral Agent shall be deemed reasonably acceptable to the Collateral Agent) and (3) such Securities Intermediary or Commodity Futures Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Futures Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds Property, in the aggregate for all Pledgors in excess of the pledged Investment Property $25,000, in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Futures Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. Each Pledgor agrees that once the Collateral Agent sends an instruction or notice to a Securities Intermediary or Futures Intermediary exercising its Control over any Securities Account and Futures Account such Pledgor shall not give any instructions or orders with respect to such Securities Account or Futures Account including, without limitation, instructions for investment, distribution or transfer of any Investment Property or financial asset maintained in such Securities Account or Futures Account. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and Agent, the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the First Lien Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary holder of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementa Permitted Lien.
Appears in 1 contract
Samples: Canadian Second Lien Security Agreement (Norcraft Holdings, L.P.)
Investment Property. (i) As of the date hereof, it Each Grantor hereby represents and warrants that (1) it has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 16 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control and (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Collateral under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 16 of the Perfection Certificate, as applicable.
(ii) . If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities Property valued in excess of a Foreign Subsidiary $500,000 that are not required to be pledged hereunder or Pledged Securities under the Credit Pledge Agreement, such Pledgor Grantor shall promptly (A) immediately endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver Agent; provided that in no event shall such securities into a Securities Account with respect Grantor be required to which a Control Agreement is in effect in favor pledge more than 65% of the Collateral Agentvoting stock of any non-U.S. Subsidiary. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary Property that are not required to be pledged hereunder or under the Credit Agreement, Pledged Securities are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereofuncertificated, such Pledgor Grantor shall promptly notify the each Collateral Agent thereof and use its commercially reasonable efforts to, within five (5) Business Days and in any event no later than 30 days (except where legally prohibited therefrom), pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xat such Grantor’s option)
(a) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nomineeGrantor, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 Business Days' 10 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, and (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered to the Collateral Agent a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of (not subject to the pledged Investment Property Pledge Agreement or Non-U.S. Pledge Agreements) in trust for the benefit of the Collateral Agent and within 5 five (5) Business Days of actual receipt thereof, deposit any cash or such Investment Property and any new securities, instruments, documents or other property Investment Property by reason of ownership of the such Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case . Upon cure or waiver of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk all Events of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentenceDefault, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify notify the Collateral Agent relevant Securities Intermediary or Commodities Intermediary that the applicable Grantor may withdraw funds from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.relevant Securities
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and Certificate. Within 45 days after the Closing Date (or such longer period as the Collateral Agent has may agree in its sole discretion), the Collateral Agent shall have a perfected first priority security interest in each such Securities Account and Commodity Account, which security interest is perfected by Control, except for those Securities Accounts and Commodity Accounts by ControlAccounts, (2) does not holdwhich, own in the aggregate, contain or have any interest carry or to which are credited no more than 15% of total investments in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate commodities of Borrower and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall its Subsidiaries at any time hold or acquire any certificated securities constituting Investment Property, other (the “Excluded Securities/Commodity Accounts”). Other than any securities in the case of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit AgreementExcluded Securities/Commodity Account, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or . Other than in the case of a an Excluded Securities/Commodity ContractAccount, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the all Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged or to be pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountSecurities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor shall grant Control over any Investment Property owned by such Pledgor to any person other than the Collateral Agent.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, such Pledgor shall by the applicable date specified in Section 6.12 of the Credit Agreement (1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent and or (2) deliver such securities into (i) a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the securities intermediary at which such account is maintainedCollateral Agent or (ii) an Excluded Securities/Commodity Account.
(iii) Subject If any Pledgor shall at any time own or acquire, directly or through a nominee, any uncertificated securities constituting Investment Property, such Pledgor shall by the applicable date specified in Section 6.12 of the Credit Agreement notify the Collateral Agent thereof and pursuant to Section 11.1(ii)an agreement in form and substance satisfactory to the Collateral Agent, either (1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (2) cause a Security Entitlement with respect to such uncertificated security to be held in (i) a Securities Account with respect to which the Collateral Agent has Control or (ii) an Excluded Securities/Commodity Account or (3) arrange for the Collateral Agent to become the registered owner of such securities.
(iv) As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement Security Entitlement or deposit by, or subject to the control Control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Investment Property. With respect to Investment Property (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate Excluded Stock) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.Equity:
(iia) If any Pledgor Debtor shall at any time hold or acquire any Pledged Equity which consists of certificated securities constituting Investment Propertysecurities, whether as a stock split, stock dividend, or other than any securities of a Foreign Subsidiary not required distribution with respect to be pledged hereunder Pledged Equity, or under the Credit Agreementotherwise, such Pledgor Debtor shall promptly promptly, and in any event within thirty (A30) endorsedays after receipt thereof, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Administrative Agent may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities Pledged Equity now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any Debtor consists of uncertificated securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are is issued to such Pledgor Debtor or its nominee directly by the issuer thereof, such Pledgor Debtor shall promptly immediately notify the Collateral Administrative Agent thereof, and shall take any actions reasonably requested by the Administrative Agent to enable the Administrative Agent to obtain “control” (within the meaning of Section 8-106 of the UCC) with respect thereto. If any Pledged Equity, whether certificated securities or uncertificated securities, or other Investment Property (including Securities Accounts and commodities accounts) now or hereafter acquired by any Debtor is held or acquired by such Debtor or its nominee through a securities intermediary or commodity intermediary, such Debtor shall immediately notify the Administrative Agent thereof and pursuant shall take any actions reasonably requested by the Administrative Agent to an agreement in form and substance satisfactory enable the Administrative Agent to obtain “control” (within the Collateral Agentmeaning of Section 8-106 and/or Section 9-106 of the UCC, either (xas applicable) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which thereto, including the Collateral Agent has execution of Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be Agreements reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as Administrative Agent. To the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor extent that the Collateral Administrative Agent shall not has the right pursuant to the foregoing to give any Entitlement Orders entitlement orders or instructions or directions to any issuer issuer, securities intermediary or commodity intermediary or to withhold its consent to the exercise of uncertificated securitiesany withdrawal or dealing rights by any Debtor, Securities Intermediary the Administrative Agent agrees with each Debtor that the Administrative Agent shall not give any such entitlement orders or Commodity Intermediaryinstructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Debtor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iiib) Subject So long as no Event of Default has occurred and is continuing, each Debtor shall be entitled:
(i) to Section 11.1(ii)exercise, as between in a manner not inconsistent with the Collateral Agent and the Pledgorsterms hereof, the Pledgors shall bear the investment risk voting power with respect to the Investment Property and Pledged SecuritiesEquity of such Debtor, and for that purpose the risk of loss of, damage to, or Administrative Agent shall (if any Pledged Equity shall be registered in the destruction name of the Investment Property Administrative Agent or its nominee) execute or cause to be executed from time to time, at the expense of the Borrower, such proxies or other instruments in favor of such Debtor or its nominee, in such form and Pledged Securitiesfor such purposes as shall be reasonably requested by such Debtor, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations enable it to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature exercise such voting power with respect to the Investment Property and Pledged Securities pledged by it under this Agreement Equity; and
(ii) except as otherwise expressly permitted under provided herein or in the Credit Agreement. In , to receive and retain for its own account any and all payments, proceeds, dividends, distributions, property, assets, or rights to the event any Pledgor shall fail extent such are permitted pursuant to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 terms of the Credit Agreement, other than (x) stock or liquidating dividends or (y) other dividends or other amounts payable under or in connection with any recapitalization, restructuring, or other non-ordinary course event (the dividends and amounts in this clause (y) being “Extraordinary Payments”), paid, issued or distributed from time to time in respect of the Pledged Equity. During the continuation of an Event of Default, if any Extraordinary Payment is paid or payable, then such sum shall be paid by each such Debtor to the Administrative Agent promptly, and in any event within ten (10) Business Days after receipt thereof, to be held by the Administrative Agent as additional collateral hereunder.
(c) Upon the occurrence and during the continuance of any Event of Default, all rights of each Debtor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 4.6(b) and to receive the payments, proceeds, dividends, distributions, property, assets, or rights that the Debtor would otherwise be authorized to receive and retain pursuant to Section 4.6(b) shall cease, and thereupon the Administrative Agent shall be entitled to exercise all voting power with respect to the Pledged Equity and to receive and retain, as additional collateral hereunder, any and all payments, proceeds, dividends, distributions, property, assets, or rights at any time declared or paid upon any of the Pledged Equity during such an Event of Default and otherwise to act with respect to the Pledged Equity as outright owner thereof.
(d) All payments, proceeds, dividends, distributions, property, assets, instruments or rights that are received by each Debtor contrary to the provisions of this Section 4.6 shall be received and held in trust for the benefit of the Administrative Agent, shall be segregated by each Debtor from other funds of such Debtor and shall be forthwith paid over to the Administrative Agent as Pledged Equity in the same form as so received (with any necessary endorsement).
(e) If such Debtor is an issuer of Pledged Equity, such Debtor agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Equity issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) it will comply with instructions received by it pursuant to the terms of Section 4.6(f) with respect to the Pledged Equity issued by it. In addition, if any such Debtor is a partnership or a limited liability company, such Debtor (i) confirms that none of the terms of any equity interest issued by it provides that such equity interest is a “security” within the meaning of the UCC, (ii) agrees that it will take no action to cause or permit any such equity interest to become a security, (iii) agrees that it will not issue any certificate representing any such equity interest and (iv) agrees that if, notwithstanding the foregoing, any such equity interest shall be or become a security, such Debtor will (and the Debtor that holds such equity interest hereby instructs such issuing Debtor to) comply with reasonable instructions originated by the Administrative Agent without further consent by such Debtor.
(f) Each Debtor hereby authorizes and instructs each issuer of any Pledged Equity pledged by such Debtor hereunder to (i) comply with any instruction received by it from the Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that each such issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Equity directly to the Administrative Agent.
Appears in 1 contract
Investment Property. (i) As of the date hereof, Each Grantor hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 17 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control (other than such Securities Accounts or Commodity Accounts (x) in which the average monthly balance on deposit in such account is less than $25,000 individually or $250,000 in the aggregate for all such Securities Accounts or Commodity Accounts or (y) in which the granting of a security interest and entering into a Control Agreement with respect to such Securities Accounts or Commodity Accounts is prohibited by Requirements of Law) and (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Stock under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(ii) If Subject to the limitation on the pledge of Equity Interests of any Pledgor Non-U.S. Subsidiary to 65% of the issued and outstanding shares of voting stock of such Non-U.S. Subsidiary in accordance with Section 1 of the Pledge Agreement, if any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other such Grantor shall promptly, but in no event later than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementthree (3) Business Days, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly promptly, but in no event later than three (3) Business Days, notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.Section
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 SCHEDULE 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts Accounts, if any, by ControlControl unless the Collateral Agent agrees in writing that it is not required, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 SCHEDULE 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) unless the Collateral Agent agrees in writing that it is not necessary, as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 SCHEDULE 16 annexed to the Perfection CertificateCertificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made), if any, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, and (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to unless the Collateral Agent and (3) in agrees in writing that it is not required, such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section in, and which such Pledgor is entitled to retain pursuant to the provision of, Sections 5.2 and 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and investment, withdrawal or dealing rights would occur. The provisions of this SECTION 3.4(C) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 3.4(cSECTION 3.4(C) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreementfor claims subject to Contested Liens. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may (following notice to the Pledgor, to the extent practicable taking into account the value of its interest in such Pledged Securities, of its intention to pay any such Claim) do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(cSECTION 3.4(C) in accordance with Section SECTION 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Priority Collateral Agent for the benefit of the Priority Secured Parties that:
(i) As Schedule 3 attached hereto contains a true and complete description of (x) the name and address of each securities intermediary and each commodity intermediary with which such Grantor maintains a securities account or commodity account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Priority Collateral Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Priority Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Priority Collateral Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the General Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the General Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of (A) certificated securities, which certificates shall have been delivered to the Priority Collateral Agent and within 5 Business Days together with duly executed undated stock powers endorsed in blank pertaining thereto, or (B) security entitlements credited to one or more securities accounts as to each of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership which the Priority Collateral Agent has received (x) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (y) a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) received by it into a Controlled Account. The full force and effect and as to which the Priority Collateral Agent agrees with has not received any notice of termination or (C) commodity contracts credited to one or more commodity accounts as to each Pledgor that of which the Priority Collateral Agent has received (x) copies of the account agreement between the applicable commodity intermediary and the Grantor and the most recent statement of account pertaining to such commodity account (each certified to be true and correct by an officer of the Grantor) and (y) a Qualifying Control Agreement from the applicable commodity intermediary which remains in full force and effect and as to which the Priority Collateral Agent has not received any notice of termination. Without limiting the generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 3 attached hereto except in each case upon giving not less than thirty (30) days' prior written notice to the Priority Collateral Agent and taking or causing to be taken at such Grantor's expense all such Perfection Action, including the securities intermediary at which delivery of such account is maintainedPerfection Documents, as may be reasonably requested by the Priority Collateral Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Priority Collateral Agent for the benefit of the Priority Secured Parties in Collateral contemplated hereunder.
(iii) Subject All dividends and other distributions with respect to Section 11.1(iiany of the Investment Property shall be subject to the security interest conferred hereunder
(iv) So long as no Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Event of Default, at the option of the Priority Collateral Agent or written direction of the Required Priority Secured Parties, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Priority Collateral Agent may thereupon (but shall not be obligated to), as between at its request, cause such Collateral to be registered in the name of the Priority Collateral Agent or its nominee or agent for the benefit of the Priority Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the PledgorsPriority Collateral Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a holder of such Investment Property upon the Pledgors occurrence and during the continuance of any Event of Default, which proxy is coupled with an interest and is irrevocable until the Security Termination Date, and each Grantor hereby agrees to provide such further proxies as the Priority Collateral Agent may request; provided, however, that the Priority Collateral Agent in its discretion may from time to time refrain from exercising, and shall bear not be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the investment risk occurrence and during the continuance of any Event of Default, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) above shall cease and shall thereupon be vested in the Priority Collateral Agent for the benefit of the Priority Secured Parties, and each Grantor shall, or shall cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Priority Collateral Agent (together, and if the risk Priority Collateral Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction written direction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject Required Priority Secured Parties to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) Secured Obligations in accordance with Section 11.03 of the Credit Intercreditor Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereofEach Grantor hereby represents and warrants, as to itself, that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 16 of the Perfection Certificate and the Collateral Agent has will have within the time periods specified in and to the extent required by the Credit Agreement, a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control and (2) does not hold, own or have any interest in any certificated securities securi- ties or uncertificated securities other than those constituting Pledged Securities Collateral under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 16 of the Perfection Certificate, as applicable.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary Property that are not required to be pledged hereunder or Securities Collateral under the Credit Pledge Agreement, such Pledgor Grantor shall promptly (A) immediately endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect Agent; provided, that in no event shall the Grantors be required to which a Control Agreement is in effect in favor pledge more than 65% of the Collateral Agentvoting stock of any non-U.S. Subsidiary. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary Property that are not required to be pledged hereunder or Securities Collateral under the Credit Agreement, Pledge Agreement are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereofuncertificated, such Pledgor Grantor shall promptly immediately notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor such Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor such Grantor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of (not subject to the pledged Investment Property Pledge Agreement) in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any the excercise of such investment and withdrawal rights or dealing rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors each Grantor shall bear the investment risk with respect to the its Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the its Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor such Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.05(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors any Grantor or any other person Person under any Control Agreement or under applicable law. .
(iv) Each Pledgor Grantor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors such Grantor shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.05(c).
Appears in 1 contract
Samples: Security Agreement (Consolidated Communications Illinois Holdings, Inc.)
Investment Property. (i) As of the the, date hereof, hereof it (1) has no Securities Accounts or Commodity Accounts neither opened nor maintains any Investment Property other than those that listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to Section 8 of the Perfection Certificate. Except to the extent otherwise provided in Article III, as applicable.
(ii) If if any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Propertywith a value greater than (i) individually, other than any securities of a Foreign Subsidiary not required to be pledged hereunder $250,000 or under (ii) in the Credit Agreementaggregate, $500,000, such Pledgor Grantor shall promptly (A) forthwith endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blankblank as the Collateral Agent may from time to time specify. If any securities now or hereafter acquired by any Grantor are uncertificated and are issued to such Grantor or its nominee directly by the issuer thereof, all such Grantor shall promptly notify the Collateral Agent thereof and, at the Collateral Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral AgentRequired Lenders, either (xi) cause the issuer to agree to that it will comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zii) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit AgreementIf any securities, no Pledgor shall whether certificated or uncertificated, or other Investment Property now or hereafter establish and maintain acquired by any Securities Account Grantor are held by such Grantor or Commodity Account with any its nominee through a Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Intermediary, such Grantor shall have given promptly notify the Collateral Agent 5 Business Days' prior written notice of its intention to establish thereof and, at the Collateral Agent’s request and option such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of Grantor shall obtain a Securities Account Control Agreement or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Account Control Agreement from each Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Accountapplicable. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securitiessuch issuer, Securities Intermediary or Commodity IntermediaryIntermediary pursuant to such Securities Account Control Agreement or Commodities Account Control Agreement, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Grantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and any withdrawal rights would occur. No Pledgor The provisions of this paragraph shall grant Control over any Investment Property not apply to any person other than Financial Assets credited to a Securities Account for which the Collateral Agent and is the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Sportsman's Warehouse Holdings, Inc.)
Investment Property. (i) As of the date hereof, it (1) no Grantor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate Accounts, and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not holdno Grantor holds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts Securities. No Grantor shall hereafter establish or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each maintain any Securities Account or Commodity Account listed with any Securities Intermediary or Commodity Intermediary unless (A) the applicable Grantor shall have given the Collateral Agent 30 days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, and (B) unless the Collateral Agent agrees in Schedule writing that it is not required, such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall within 15 annexed days of opening such Commodity Account with such Securities Intermediary or Commodity Intermediary deliver to Collateral Agent a duly executed control agreement in form and substance reasonably acceptable with respect to such Securities Account or Commodity Account, as the case may be. Each Grantor shall accept any cash and Investment Property in trust for the benefit of the Collateral Agent and within ten (10) Business Days of actual receipt thereof, deposit any and all cash and Investment Property received by it into a Deposit Account or Securities Account subject to the Perfection Certificate, as applicableCollateral Agent’s Control. No Grantor shall grant Control over any Investment Property to any Person other than the Collateral Agent.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor Grantor shall promptly (A1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B2) deliver such securities into a Securities Account with respect to which a Control Agreement control agreement in form and substance acceptable to the Collateral Agent is in effect in favor of the Collateral Agent. .
(iii) If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (x1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z3) arrange for the Collateral Agent to become the registered owner of the such securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Medicine Man Technologies, Inc.)
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Except to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest extent otherwise provided in such Securities Accounts and Commodity Accounts by ControlArticle III, (2) does not hold, own or have if any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementhereunder, such Pledgor Grantor shall promptly (A) forthwith endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank, all blank in form accordance with the terms and substance reasonably satisfactory timing set forth in Section 3.02. Subject to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor authority of the Administrative Agent under the last paragraph of the term “Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities and Guarantee Requirement” in the Credit Agreement and Section 5.21 of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated each Grantor shall within 90 days (as such period may be extended in Administrative Agent’s sole discretion) after the Effective Date execute and are issued deliver, and cause each relevant securities intermediary, commodity intermediary or financial institution to such Pledgor or its nominee directly by the issuer thereofexecute and deliver, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Control Agreement for each Securities Account with respect or Commodity Account of such Grantor maintained on the Effective Date that is not an Excluded Account. Subject to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner authority of the securities. Except as expressly permitted Administrative Agent under the last paragraph of the definition of the term “Collateral and Guarantee Requirement” in the Credit Agreement and Section 5.21 of the Credit Agreement, no Pledgor shall hereafter establish and maintain before opening or replacing any Securities Account or Commodity Account with (other than an Excluded Account), each Grantor shall cause each securities intermediary, commodity intermediary or financial institution in which it seeks to open any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it enter into a Controlled Control Agreement with the Administrative Agent in order to give the Administrative Agent Control of such Securities Account or Commodity Account. The Collateral Administrative Agent agrees with each Pledgor of the Grantors that the Collateral Administrative Agent shall not give any Entitlement Orders such entitlement orders or instructions or directions to any issuer of uncertificated securitiessuch issuer, Securities Intermediary securities intermediary or Commodity Intermediarycommodity intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Grantor, unless an Event of Default has occurred and is continuing, or, in the case . The provisions of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor this paragraph shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect not apply to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementExcluded Accounts.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Accounts. No Pledgor shall at hereafter establish any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral AgentCommodity Account. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract other than Securities Accounts in which less than $20,000 individually and $75,000 in the aggregate is held (the “Excluded Securities Accounts” and, together with the Excluded Deposit Accounts, collectively, the “Excluded Accounts”), unless (1x) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3y) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 five (5) Business Days Day of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled Deposit Account or Securities Account subject to Collateral Agent’s Control or an Excluded Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, securities or Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. Subject to Permitted Liens, no Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Ambassadors International Inc)
Investment Property. (i) As of the date hereof, hereof each Pledgor hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts Account or Commodity Accounts Account other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and that the Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 15 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, and (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Pledgor, shall within 30 days after establishing such Securities Account or Commodity Account, have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any and all cash or and Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to the Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment exercise of dealing and withdrawal rights rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control Control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person Person under any Control Agreement or under applicable law. Each Pledgor Requirements of Law; and, provided further, Collateral Agent shall promptly pay all Claims and fees of whatever kind or nature exercise such care with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except in its possession as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail exercised with respect to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 its own property of the Credit Agreementsame type.
Appears in 1 contract
Investment Property. With respect to Investment Property (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate Excluded Stock) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.Securities:
(iia) If any Pledgor Debtor shall at any time hold or acquire any Pledged Securities which are certificated securities constituting Investment Propertysecurities, whether as a stock split, stock dividend, or other than any securities of a Foreign Subsidiary not required distribution with respect to be pledged hereunder Pledged Securities, or under the Credit Agreementotherwise, such Pledgor Debtor shall promptly promptly, and in any event within ten (A10) endorseBusiness Days after receipt thereof (or such longer period as the Administrative Agent may consent to in its sole discretion), assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Administrative Agent may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities Pledged Securities now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Debtor are uncertificated securities and are issued to such Pledgor Debtor or its nominee directly by the issuer thereof, such Pledgor Debtor shall promptly notify the Collateral Administrative Agent thereof, and shall take any actions requested by the Administrative Agent to enable the Administrative Agent to obtain “control” (within the meaning of Section 8-106 of the UCC) with respect thereto. If any Pledged Securities, whether certificated securities or uncertificated securities, or other Investment Property now or hereafter acquired by any Debtor are held or acquired by such Debtor or its nominee through a securities intermediary or commodity intermediary, such Debtor shall promptly notify the Administrative Agent thereof and and, shall take any actions reasonably requested by the Administrative Agent to enable the Administrative Agent to obtain “control” (within the meaning of Section 8-106 and/or Section 9-106 of the UCC, as applicable) with respect thereto. To the extent that the Administrative Agent has the right pursuant to an agreement in form and substance satisfactory the foregoing to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders entitlement orders or instructions or directions to any issuer issuer, securities intermediary or commodity intermediary or to withhold its consent to the exercise of uncertificated securitiesany withdrawal or dealing rights by any Debtor, Securities Intermediary the Administrative Agent agrees with each Debtor that the Administrative Agent shall not give any such entitlement orders or Commodity Intermediaryinstructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Debtor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iiib) Subject So long as no Event of Default has occurred and is continuing, each Debtor shall be entitled:
(i) to Section 11.1(ii)exercise, as between in a manner not inconsistent with the Collateral Agent and the Pledgorsterms hereof, the Pledgors shall bear the investment risk voting power with respect to the Investment Property and Pledged SecuritiesSecurities of such Debtor, and for that purpose the risk of loss of, damage to, or Administrative Agent shall (if any Pledged Securities shall be registered in the destruction name of the Investment Property Administrative Agent or its nominee) execute or cause to be executed from time to time, at the expense of the Borrower, such proxies or other instruments in favor of such Debtor or its nominee, in such form and Pledged Securitiesfor such purposes as shall be reasonably requested by such Debtor, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations enable it to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature exercise such voting power with respect to the Investment Property Pledged Securities; and
(ii) except as otherwise provided herein or in the Credit Agreement, to receive and retain for its own account any and all payments, proceeds, dividends, distributions, property, assets, or rights to the extent such are permitted pursuant to the terms of the Credit Agreement, other than (x) stock or liquidating dividends or (y) other dividends or other amounts payable under or in connection with any recapitalization, restructuring, or other non-ordinary course event (the dividends and amounts in this clause (y) being “Extraordinary Payments”), paid, issued or distributed from time to time in respect of the Pledged Securities. If any Extraordinary Payment is paid or payable, then such sum shall be paid by each such Debtor to the Administrative Agent promptly, and in any event within ten (10) Business Days after receipt thereof (or such longer period as the Administrative Agent may consent to in its sole discretion), to be held by the Administrative Agent as additional collateral hereunder.
(c) Upon the occurrence and during the continuance of any Event of Default, all rights of each Debtor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 4.6(b) and to receive the payments, proceeds, dividends, distributions, property, assets, or rights that the Debtor would otherwise be authorized to receive and retain pursuant to Section 4.6(b) shall cease, and thereupon the Administrative Agent shall be entitled to exercise all voting power with respect to the Pledged Securities and to receive and retain, as additional collateral hereunder, any and all payments, proceeds, dividends, distributions, property, assets, or rights at any time declared or paid upon any of the Pledged Securities during such an Event of Default and otherwise to act with respect to the Pledged Securities as outright owner thereof.
(d) All payments, proceeds, dividends, distributions, property, assets, instruments or rights that are received by each Debtor contrary to the provisions of this Section 4.6 shall be received and held in trust for the benefit of the Administrative Agent, shall be segregated by each Debtor from other funds of such Debtor and shall be forthwith paid over to the Administrative Agent as Pledged Securities in the same form as so received (with any necessary endorsement).
(e) If such Debtor is an issuer of Pledged Securities, such Debtor agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) it will comply with instructions received by it pursuant to the terms of Section 4.6(f) with respect to the Pledged Securities issued by it. In addition, if any such Debtor is a partnership or a limited liability company, such Debtor (i) confirms that none of the terms of any equity interest issued by it provides that such equity interest is a “security” within the meaning of the UCC, (ii) agrees that it will take no action to cause or permit any such equity interest to become a security, (iii) agrees that it will not issue any certificate representing any such equity interest and (iv) agrees that if, notwithstanding the foregoing, any such equity interest shall be or become a security, such Debtor will (and the Debtor that holds such equity interest hereby instructs such issuing Debtor to) comply with instructions originated by the Administrative Agent without further consent by such Debtor.
(f) Each Debtor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Debtor hereunder to (i) comply with any instruction received by it under from the Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement except as Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that each such issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted under hereby including as permitted in Section 4.6(b)(ii) herein, pay any dividends or other payments with respect to the Credit Agreement. In Pledged Securities directly to the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementAdministrative Agent.
Appears in 1 contract
Samples: Security Agreement (Global Geophysical Services Inc)
Investment Property. (i) As of the date hereof, it other than the Notes Collateral Accounts, no Grantor (1) has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate 3.04(c) hereof and the Collateral Agent has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts which security interest is perfected by ControlControl unless the Collateral Agent agrees in writing that it is not required, (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities or Excluded Assets and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to 3.04(c) hereof. Unless the Perfection Certificate and (3) Collateral Agent agrees in writing that it is not required, as of the date hereof, each Grantor has entered into a duly authorized, executed and delivered a Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate3.04(c) hereof, if any, as applicable. No Grantor shall hereafter establish or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary, other than a Notes Collateral Account, unless (A) the applicable Grantor shall have given the Collateral Agent ten (10) Business Days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, (B) such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (C) unless the Collateral Agent agrees in writing that it is not required, such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be. Subject to the Noteholder Intercreditor Agreement, each Grantor shall accept any cash and Investment Property constituting Collateral in trust for the benefit of the Collateral Agent and within five (5) Business Days of actual receipt thereof, deposit any and all such cash and Investment Property (other than any Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Deposit Account or Securities Account subject to the Collateral Agent’s Control. The provisions of this Section 3.04(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Grantor shall grant control over any Investment Property to any person other than the Collateral Agent.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment PropertyProperty included in the Collateral, other than any securities of a Foreign Subsidiary not required such Grantor shall, subject to be pledged hereunder or under the Credit Noteholder Intercreditor Agreement, such Pledgor shall promptly (A1) endorseindorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B2) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Collateral Agent. .
(iii) If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under Property included in the Credit Agreement, Collateral are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (x1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z3) arrange for the Collateral Agent to become the registered owner of the such securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (New Enterprise Stone & Lime Co., Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities Property having a fair market value (as determined by the Board of a Foreign Subsidiary not required to be pledged hereunder or under Directors of the Credit AgreementIssuer) in excess of $100,000, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property Property, other than Special Property, in trust for the benefit of the Collateral Agent and within 5 two (2) Business Days of actual receipt thereof, deposit any cash or Investment Property Property, other than Special Property, and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing (or, in the case of withholding consent to investment cash or withdrawal rights Cash Equivalents, until the maturity of the Notes has been accelerated by the holders thereof in accordance with the Indenture) or, after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property other than Special Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementother than Contested Claims.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of actual receipt thereof, deposit any cash or Investment Property and any new (a) certificated securities, instrumentswhich certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, documents or other property by reason (b) security entitlements credited to one or more securities accounts as to each of ownership which the Administrative Agent has received (1) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (2) a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) full force and effect and as to which the Administrative Agent has not received by it into a Controlled Accountany notice of termination. The Collateral Agent agrees with each Pledgor that Without limiting the Collateral Agent generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days' prior written notice to the Collateral Administrative Agent and taking or causing to be taken at such Grantor's expense all such Perfection Action, including the securities intermediary at which delivery of such account is maintainedPerfection Documents, as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent All dividends and the Pledgors, the Pledgors shall bear the investment risk other distributions with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction any of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or shall be subject to the control ofsecurity interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(iv) So long as no Default or Event of Default shall have occurred and be continuing, the Collateral registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Default or Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a Securities Intermediaryshareholder with respect to such Investment Property upon the occurrence and during the continuance of any Default or Event of Default, Commodity Intermediarywhich proxy is coupled with an interest and is irrevocable until the Facility Termination Date, any Pledgor or any other personand each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that nothing contained the Administrative Agent in its discretion may from time to time refrain from exercising, and shall not be obligated to exercise, any such voting or consensual rights or such proxy. For purposes of this Section 3.4(cSecurity Agreement, "Facility Termination Date" means the date as of which all of the following shall have occurred: (a) the Borrower shall release or relieve any Securities Intermediary or Commodity Intermediary have permanently terminated the credit facilities under the Loan Documents by final payment in full of its duties all Outstanding Amounts, together with all accrued and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims unpaid interest and fees thereon, other than (i) the undrawn portion of whatever kind or nature with respect to the Investment Property Letters of Credit and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor (ii) all letter of credit fees relating thereto accruing after such date (which fees shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so be payable solely for the account of such Pledgor the L/C Issuer and shall be computed (based on interest rates and the Pledgors Applicable Rate then in effect) on such undrawn amounts to the respective expiry dates of the Letters of Credit), in each case as have been fully Cash Collateralized or as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall promptly reimburse have been made; (b) all Commitments shall have terminated or expired; (c) the obligations and indemnify liabilities of the Collateral Borrower and each other Loan Party under all Related Credit Arrangements shall have been fully, finally and irrevocably paid and satisfied in full and the Related Credit Arrangements shall have expired or been terminated, or other arrangements satisfactory to the counterparties shall have been made with respect thereto; and (d) the Borrower and each other Loan Party shall have fully, finally and irrevocably paid and satisfied in full all other Obligations (except for obligations consisting of continuing indemnities and other contingent Obligations of the Borrower or any Loan Party that may be owing to the Administrative Agent from all costs and expenses incurred by each of its Related Parties or any Lender pursuant to the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 Loan Documents and expressly survive termination of the Credit AgreementAgreement or any other Loan Document).
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xA) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yB) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zC) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The applicable Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed except to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account extent that obtaining such Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed may be completed after the Closing Date pursuant to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities terms of a Foreign Subsidiary not required Schedule 5.14 to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the applicable Collateral Agent 5 Business Daysthirty (30) days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the applicable Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be; provided, that the Collateral Agents shall have the right to waive (or in extend) the case requirement of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c)Control Agreement for any account in their reasonable discretion. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the applicable Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to the applicable Collateral Agent's Control. The applicable Collateral Agent agrees with each Pledgor that the such Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which either of the Collateral Agents is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the applicable Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereofEach Grantor hereby represents and warrants, as to itself, that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 16 of the Perfection Certificate and the Collateral Agent has will have within the time periods specified in and to the extent required by the Credit Agreement, a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control and (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Collateral under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 16 of the Perfection Certificate, as applicable.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary Property that are not required to be pledged hereunder or Securities Collateral under the Credit Pledge Agreement, such Pledgor Grantor shall promptly (A) immediately endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect Agent; provided, that in no event shall the Grantors be required to which a Control Agreement is in effect in favor pledge more than 65% of the Collateral Agentvoting stock of any non-U.S. Subsidiary. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary Property that are not required to be pledged hereunder or Securities Collateral under the Credit Agreement, Pledge Agreement are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereofuncertificated, such Pledgor Grantor shall promptly immediately notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor such Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor such Grantor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of (not subject to the pledged Investment Property Pledge Agreement) in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any the excercise of such investment and withdrawal rights or dealing rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors each Grantor shall bear the investment risk with respect to the its Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the its Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor such Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.05(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors any Grantor or any other person Person under any Control Agreement or under applicable law. .
(iv) Each Pledgor Grantor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors such Grantor shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.05(c).
Appears in 1 contract
Samples: Security Agreement (Consolidated Communications Texas Holdings, Inc.)
Investment Property. (i) As of the date hereof, it each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 14 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities Property and having a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement$500,000, such Pledgor shall promptly promptly, and in any event within 30 days of acquiring such security, (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities Property and having a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, $500,000 are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly promptly, and in any event within 30 days of acquiring such security, notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property received by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law, unless such Claim is currently being contested in good faith by appropriate proceedings and with respect to which reserves (or other sufficient provisions) in conformity with GAAP have been provided on the books of the Pledgor. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated required to be paid in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all costs and reasonable out-of-pocket expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 subsection 11.5 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Futures Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Futures Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Futures Account with any Securities Intermediary or Commodity Futures Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Futures Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractFutures Intermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Futures Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Futures Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Futures Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds Property, in the aggregate for all Pledgors in excess of the pledged Investment Property $25,000, in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Futures Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. Each Pledgor agrees that once the Collateral Agent sends an instruction or notice to a Securities Intermediary or Futures Intermediary exercising its Control over any Securities Account and Futures Account such Pledgor shall not give any instructions or orders with respect to such Securities Account or Futures Account including, without limitation, instructions for investment, distribution or transfer of any Investment Property or financial asset maintained in such Securities Account or Futures Account. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Canadian Security Agreement (Norcraft Holdings, L.P.)
Investment Property. (i) As of the date hereof, it (1) hereof each Pledgor has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 14 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 five (5) Business Days of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent's Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Emergency Medical Services CORP)
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority Second Priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent (it being understood that any Securities Intermediary or Commodity Intermediary deemed reasonably acceptable by the First Lien Collateral Agent shall be deemed reasonably acceptable to the Collateral Agent) and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds Property, in the aggregate for all Pledgors in excess of the pledged Investment Property $25,000, in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. Each Pledgor agrees that once the Collateral Agent sends an instruction or notice to a Securities Intermediary or Commodity Intermediary exercising its Control over any Securities Account and Commodity Account such Pledgor shall not give any instructions or orders with respect to such Securities Account or Commodity Account including, without limitation, instructions for investment, distribution or transfer of any Investment Property or financial asset maintained in such Securities Account or Commodity Account. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and Agent, the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the First Lien Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary holder of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementa Permitted Lien.
Appears in 1 contract
Samples: u.s. Second Lien Security Agreement (Norcraft Holdings, L.P.)
Investment Property. (i) As of the date hereof, it and both before and after the completion of all the Transaction Steps, each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 13(a) annexed to the Perfection Certificate Certificate, and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Controlsubject in each case to Permitted Priority Liens (other than those which are expressly waived pursuant to a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable), (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 13 annexed to the Perfection Certificate Certificate, and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement Agreement, substantially in the form of Exhibit 4 annexed hereto, or a Commodity Account Control Agreement Agreement, in a form reasonably satisfactory to the Administrative Agent, with respect to each Securities Account or Commodity Account listed in Schedule 15 13 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of has been executed and delivered to the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property and shall promptly upon, and in trust for the benefit of the Collateral Agent and any event within 5 one (1) Business Days of Day of, actual receipt thereof, (a) deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Control Account, or (b) in the case of uncertificated securities, transfer registered ownership of such securities to the Administrative Agent. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor The provisions of this Section 3.4(c) shall grant Control over any Investment Property not apply to any person other than Financial Assets credited to a Securities Account for which the Collateral Administrative Agent and is the securities intermediary at which such account is maintainedSecurities Intermediary.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, or registered in the Collateral name of, the Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personperson or otherwise; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary Intermediary, if any, or the Administrative Agent, of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all reasonable costs and out-of-pocket expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 11.5 of the Credit Agreement.
Appears in 1 contract
Samples: Canadian Security Agreement (BRP (Luxembourg) 4 S.a.r.l.)
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds Property, in the aggregate for all Pledgors in excess of the pledged Investment Property $25,000, in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. Each Pledgor agrees that once the Collateral Agent sends an instruction or notice to a Securities Intermediary or Commodity Intermediary exercising its Control over any Securities Account and Commodity Account such Pledgor shall not give any instructions or orders with respect to such Securities Account or Commodity Account including, without limitation, instructions for investment, distribution or transfer of any Investment Property or financial asset maintained in such Securities Account or Commodity Account. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Collateral Agent for the benefit of the Secured Creditors that:
(i) As Schedule 9(e) attached hereto contains a true and complete description as of the date hereofClosing Date of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, it and (1y) has no Securities Accounts or Commodity Accounts all other Investment Property of such Grantor other than those listed interests in Schedule 15 annexed Subsidiaries in which such Grantor has granted a Lien to the Perfection Certificate and the Collateral Agent has for the benefit of the Secured Creditors pursuant to a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Collateral Agent in each instance, all Investment Property (other than (x) Excluded Property, other than (y) any securities of a Subsidiary Securities in Foreign Subsidiary Subsidiaries and equity interests in Subsidiaries that are not Material Subsidiaries, in each case, to the extent not required to be pledged hereunder or under the terms of the Credit Agreement, any of the Notes Documents or any Pledge Agreement or (z) interests in Subsidiaries in which such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory Grantor has granted a Lien to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor for the benefit of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment PropertySecured Creditors pursuant to a Pledge Agreement) shall be maintained at all times in the form of (a) certificated securities, other than any securities of a Foreign Subsidiary not required which certificates shall have been delivered to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant together with duly executed undated stock powers endorsed in blank pertaining thereto, or (b) security entitlements credited to an agreement in form and substance satisfactory one or more securities accounts as to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from each of which the Collateral Agent as has received (1) copies of the account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities, without further consent of any Pledgor or such nominee, securities account (y) cause a Security Entitlement with respect to such uncertificated security each certified to be held true and correct by an officer of the Grantor) and (2) a Qualifying Control Agreement from the applicable securities intermediary which remains in a Securities Account with respect full force and effect and as to which the Collateral Agent has Control or (z) arrange for not received any notice of termination. Without limiting the Collateral Agent to become the registered owner generality of the securities. Except as expressly permitted under the Credit Agreementforegoing, no Pledgor Grantor shall hereafter establish and maintain cause, suffer or permit any Securities Account Investment Property to be credited to or Commodity Account with maintained in any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (130) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) taking or causing to be taken at such Securities Intermediary or Commodity IntermediaryGrantor’s expense all such Perfection Action, including the delivery of such Perfection Documents, as may be reasonably requested by the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect Collateral Agent to such Securities Account perfect or Commodity Account, as the case may beprotect, or in maintain the case of a Commodity Contractperfection and priority of, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds Lien of the pledged Investment Property in trust Collateral Agent for the benefit of the Secured Creditors in Collateral Agent contemplated hereunder.
(iii) All dividends and within 5 Business Days of actual receipt thereof, deposit other distributions with respect to any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(other than payments iv) So long as no Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a kind described in Section 7.4 hereofGrantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) received by Upon the occurrence and during the continuance of any Event of Default, at the option of the Collateral Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it into a Controlled Account. The is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Collateral Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Collateral Agent or its nominee or agent for the benefit of the Secured Creditors and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Collateral Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a shareholder with respect to such Investment Property upon the occurrence and during the continuance of any Event of Default, which proxy is coupled with an interest and is irrevocable until the Termination Date, and each Grantor hereby agrees with each Pledgor to provide such further proxies as the Collateral Agent may request; provided, however, that the Collateral Agent shall not give any Entitlement Orders or instructions or directions in its discretion may from time to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediarytime refrain from exercising, and shall not withhold its consent be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the exercise occurrence and during the continuance of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, orand, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person an Event of Default other than the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower or any Material Subsidiary under the Bankruptcy Code of the United States, upon written notice from the Collateral Agent Agent, all rights of the Grantors to receive and the securities intermediary at which such account is maintained.
retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) Subject to Section 11.1(ii), as between above shall cease and shall thereupon be vested in the Collateral Agent for the benefit of the Secured Creditors, and the Pledgorseach Grantor shall, the Pledgors or shall bear the investment risk cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations be promptly delivered to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify (together, if the Collateral Agent from all costs and expenses incurred shall request, with any documents related thereto) to be held, released or disposed of by the Collateral Agent under this Section 3.4(c) it in accordance with Section 11.03 of the Credit Intercreditor Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aand in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security, (i) endorse, assign and deliver the same to the Noteholder Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Noteholder Collateral Agent or (Bii) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Noteholder Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security notify the Noteholder Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Noteholder Collateral Agent, either (xi) cause the issuer to agree to comply with Entitlement Orders or other instructions from the Noteholder Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yii) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Noteholder Collateral Agent has Control or (ziii) arrange for the Noteholder Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor The Pledgors shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Noteholder Collateral Agent 5 Business Days' at least 15 days’ (or such shorter period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Noteholder Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Noteholder Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights or dealing rights, would occur. The provisions of this Section 3.4(d) shall not apply to any Financial Assets credited to a Securities Account for which the Noteholder Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person Person other than the Noteholder Collateral Agent and, prior to the Discharge of ABL Obligations and to the securities intermediary at which extent required under the Intercreditor Agreement, the ABL Agent, and each Pledgor shall promptly (and in any event within ten Business Days or such account is maintained.
(iiilonger period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) Subject notify the Noteholder Collateral Agent if any issuer of Pledged Interests takes any action to Section 11.1(ii)have any Pledged Interests issued by it treated as Securities under Article 8 of the UCC and such Pledgor shall take all steps deemed necessary, as advisable or prudent by the Noteholder Collateral Agent in order to grant Control of such Pledged Interests in favor of the Noteholder Collateral Agent. As between the Noteholder Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Noteholder Collateral Agent, the ABL Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.4(d) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person Person under any Control Agreement or under applicable lawLegal Requirements. Each Pledgor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Noteholder Collateral Agent may may, after providing written notice thereof to the Pledgors, do so for the account of such Pledgor Pledgor, and the Pledgors shall promptly reimburse and indemnify the Noteholder Collateral Agent in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture from all costs and expenses incurred by the Noteholder Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.4(d).
Appears in 1 contract
Investment Property. Each Issuer hereby represents and warrants that (i) As as of the date hereof, hereof it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 17 of the Perfection Certificate, (ii) it will, on the Date of Closing, execute and deliver a Control Agreement substantially in the form set forth in Exhibit 2(b) hereto (or such other form and substance acceptable to the Collateral Agent) for each Securities Account or Commodity Account listed on Schedule 17 of the Perfection Certificate and or close such account, (iii) as of the date each such Control Agreement is executed the Collateral Agent has will have a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control and (2iv) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(iii) If any Pledgor Issuer shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor Issuer shall promptly (A) immediately endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor Issuer constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Issuer or its nominee directly by the issuer thereof, such Pledgor Issuer shall promptly immediately notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor such Issuer or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Issuer shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless un- less (1) the applicable Pledgor such Issuer shall have given the Collateral Agent 5 Business Days15 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Issuer shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Issuer shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 7.5 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor Issuer that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorIssuer, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. Except for the provisions in the preceding sentence, the provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor Issuer shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iiiii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsIssuers, the Pledgors Issuers shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor Issuer or any other personPerson; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors any Issuer or any other person Person under any Control Agreement or under applicable law. Each Pledgor Issuer shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Issuer shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may may, but shall not be required to, do so for the account of such Pledgor Issuer and the Pledgors such Issuer shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement11.4 hereof.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the all Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged or to be pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountSecurities Account subject to Collateral Agent’s Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property owned by such Pledgor to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Davita Inc)
Investment Property. (i) As of the date hereof, Each Grantor hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 17 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control and (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Stock under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(ii) If Subject to the limitation on the pledge of Equity Interests of any Pledgor Non-U.S. Subsidiary to 65% of the issued and outstanding shares of voting stock of such Non-U.S. Subsidiary in accordance with Section 1 of the Pledge Agreement, if any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other such Grantor shall promptly, but in no event later than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementthree (3) Business Days, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly promptly, but in no event later than three (3) Business Days, notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.Section
Appears in 1 contract
Samples: Security Agreement (Constar Inc)
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Secured Parties pursuant to the Pledge Agreement shall be maintained at all times in the form of (a) certificated securities, which certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, or (b) security entitlements credited to one or more securities accounts as to each of which the Administrative Agent has received (1) copies of the account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (each certified to be true and correct by an officer of the Grantor) and (2) a Qualifying Control Agreement from the applicable securities intermediary which remains in full force and effect and as to which the Administrative Agent has not received any notice of termination. Without limiting the generality of the foregoing, no Grantor shall cause, suffer or permit any Investment Property to be credited to or maintained in any securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Administrative Agent and within 5 Business Days taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the delivery of actual receipt thereofsuch Perfection Documents, deposit as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) All dividends and other distributions with respect to any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, subject to the Lien and security interest hereunder.
(other than payments iv) So long as no Default or Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent Grantor as record and beneficial owner shall not give any Entitlement Orders or instructions or directions be changed and such Grantor shall be entitled to any issuer exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof, of uncertificated securitiesthe Credit Agreement, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment Qualifying Control Agreement, or withdrawal rights by such Pledgor, unless an any other document relating thereto.
(v) So long as no Default or Event of Default has occurred and is be continuing, or, in the case each Grantor may sell or otherwise dispose of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any of its Investment Property to the extent permitted by the Credit Agreement. Upon the occurrence and during the continuance of any person other than Default or Event of Default, no Grantor shall sell all or any part of its Investment Property without the Collateral Agent and prior written consent of the securities intermediary at which such account is maintainedAdministrative Agent.
(vi) Upon the occurrence and during the continuance of any Default or Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a shareholder with respect to such Investment Property upon the occurrence and during the continuance of any Default or Event of Default, which proxy is coupled with an interest and is irrevocable until the Facility Termination Date, and each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that the Administrative Agent in its discretion may from time to time refrain from exercising, and shall not be obligated to exercise, any such voting or consensual rights or such proxy.
(vii) Upon the occurrence and during the continuance of any Default or Event of Default, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) Subject to Section 11.1(ii)above shall cease and shall thereupon be vested in the Administrative Agent for the benefit of the Secured Parties, as between the Collateral Agent and the Pledgorseach Grantor shall, the Pledgors or shall bear the investment risk cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Administrative Agent (together, and if the risk Administrative Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction option of the Investment Property and Pledged SecuritiesAdministrative Agent, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementSecured Obligations.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority Second Priority security interest (subject to Permitted Collateral Liens) in such Securities Accounts and Commodity Accounts (other than Excluded Accounts) by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate and (3) as of the Effective Date, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection CertificateCertificate (other than Excluded Accounts), as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' (or such shorter period as the Collateral Agent may approve) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, upon which Schedule 16 shall have caused such Commodity Contract be deemed to be credited amended to a Commodity Account satisfying the requirements of this Section 3.4(c)cover such additional Collateral. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property (other than a Deposit Account which is deemed an Excluded Account pursuant to clause (b) of the definition of "Excluded Account") to any person other than the Collateral Agent and and, prior to the securities intermediary at which such account is maintainedDischarge of First Lien Obligations, the First Lien Collateral Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Commod- ity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Second Lien Credit Agreement.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (PGT, Inc.)
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Except to the Perfection Certificate and extent otherwise provided in the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by ControlU.S. Pledge Agreement, (2) does not hold, own or have if any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementsecurities, such Pledgor Grantor shall promptly (A) forthwith endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Administrative Agent may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Grantor are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly immediately notify the Collateral Administrative Agent thereof and, at the Administrative Agent’s request and option, pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xi) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zii) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit AgreementIf any securities, no Pledgor shall whether certificated or uncertificated, or other Investment Property now or hereafter establish and maintain acquired by any Securities Account Grantor are held by such Grantor or Commodity Account with any its nominee through a Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless Intermediary, such Grantor shall immediately notify the Administrative Agent thereof and, at the Administrative Agent’s request and option (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contractand, (2) in the case of a Securities Account any such Investment Property so held by any Grantor as of the Second Restatement Effective Date, no later than the date that is 15 days after the Second Restatement Effective Date (or Commodities Accountsuch longer period as the Administrative Agent may permit, such Securities Intermediary or Commodity Intermediary shall be in its sole discretion)), pursuant to an agreement in form and substance reasonably acceptable satisfactory to the Collateral Agent and Administrative Agent, either (3i) cause such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement to agree to comply with respect entitlement orders or other instructions from the Administrative Agent to such Securities Account Intermediary as to such Security Entitlements or to apply any value distributed on account of any Commodity AccountContract as directed by the Administrative Agent to such Commodity Intermediary, as the case may be, in each case without further consent of any Grantor, such nominee, or any other Person, or (ii) in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Financial Assets or other Investment Property that are proceeds held through a Securities Intermediary, arrange for the Administrative Agent to become the entitlement holder with respect to such Investment Property, with the Grantor being permitted, only with the consent of the pledged Administrative Agent, to exercise rights to withdraw or otherwise deal with such Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountProperty. The Collateral Administrative Agent agrees with each Pledgor of the Grantors that the Collateral Administrative Agent shall not give any Entitlement Orders such entitlement orders or instructions or directions to any issuer of uncertificated securitiessuch issuer, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Grantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent Trustee has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral AgentTrustee, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent Trustee or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral AgentTrustee. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent Trustee thereof and pursuant to an agreement in form and substance satisfactory to the Collateral AgentTrustee, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent Trustee as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent Trustee has Control or (zc) arrange for the Collateral Agent Trustee to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business DaysTrustee thirty (30) days' (or such shorter period as the Collateral Trustee may approve) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent Trustee and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in upon which Schedule 15 (annexed to the case of a Commodity Contract, Perfection Certificate) shall have caused such Commodity Contract be deemed to be credited amended to a Commodity Account satisfying the requirements of this Section 3.4(c)cover such additional Collateral. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent Trustee and within 5 three (3) Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent Trustee agrees with each Pledgor that the Collateral Agent Trustee shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Trustee is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent Trustee and the securities intermediary at which such account is maintainedParity Collateral Trustee (as defined in the Collateral Trust Agreement).
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent Trustee and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral AgentTrustee, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent Trustee may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent Trustee from all costs and expenses incurred by the Collateral Agent Trustee under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Pledge and Security Agreement (Builders FirstSource, Inc.)
Investment Property. (i) As Borrower represents and warrants to Lender that Borrower does not own or hold, directly or indirectly, beneficially or as record owner or both, any investment property, as of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest investment account, securities account, commodity account or other similar account with any bank or other financial institution or other securities intermediary or commodity intermediary as of the date hereof, in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed each case except as set forth in Schedule 15 annexed 7.12 hereto. In the event that any Borrower shall be entitled to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time after the date hereof hold or acquire any certificated securities constituting Investment Propertysecurities, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor Borrower shall promptly (A) endorse, assign and deliver the same to the Collateral AgentLender, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as Lender may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Borrowers are uncertificated and are issued to such Pledgor a Borrower or its nominee directly by the issuer thereof, such Pledgor Borrower shall promptly immediately notify the Collateral Agent Lender thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agentshall as Lender may specify, either (xi) cause the issuer to agree to comply with instructions from the Collateral Agent Lender as to such securities, without further consent of any Pledgor of Borrower or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zii) arrange for the Collateral Agent Lender to become the registered owner of the securities. Except as expressly permitted under Borrower shall not, directly or indirectly, after the Credit Agreementdate hereof open, no Pledgor shall hereafter establish and or maintain any Securities Account investment account, securities account, commodity account or Commodity Account any other similar account (other than a deposit account) with any Securities Intermediary securities intermediary or Commodity Intermediary or enter into any Commodity Contract commodity intermediary unless each of the following conditions is satisfied (1i) the applicable Pledgor Lender shall have given the Collateral Agent 5 received not less than fifteen (15) Business Days' Days prior written notice of its the intention of Borrower to open or establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) account which notice shall specify in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably reasonable detail and specificity acceptable to Lender the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds name of the pledged Investment Property in trust for account, the benefit owner of the Collateral Agent account, the name and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership address of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders securities intermediary or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities commodity intermediary at which such account is maintained.
to be opened or established, the individual at such intermediary with whom Borrower are dealing and the purpose of the account and Lender shall have consented thereto in writing, (ii) the securities intermediary or commodity intermediary (as the case may be) where such account is opened or maintained shall be acceptable to Lender, and (iii) Subject on or before the opening of such investment account, securities account or other similar account with a securities intermediary or commodity intermediary, such person shall as Lender may specify, either (A) execute and deliver, and cause to Section 11.1(ii)be executed and delivered to Lender, as between a Pledge Agreement and an Investment Property Control Agreement in form and substance satisfactory to Lender with respect thereto duly authorized, executed and delivered by Borrower and such securities intermediary or commodity intermediary or (B) arrange for Lender to become the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk entitlement holder with respect to the Investment Property such investment property on terms and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject conditions acceptable to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementLender.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of actual receipt thereof, deposit any cash or Investment Property and any new (a) certificated securities, instrumentswhich certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, documents or other property by reason (b) security entitlements credited to one or more securities accounts as to each of ownership which the Administrative Agent has received (1) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (2) a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) full force and effect and as to which the Administrative Agent has not received by it into a Controlled Accountany notice of termination. The Collateral Agent agrees with each Pledgor that Without limiting the Collateral Agent generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Collateral Administrative Agent and taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the securities intermediary at which delivery of such account is maintainedPerfection Documents, as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent All dividends and the Pledgors, the Pledgors shall bear the investment risk other distributions with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction any of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or shall be subject to the control ofsecurity interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(iv) So long as no Event of Default shall have occurred and be continuing, the Collateral registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a Securities Intermediaryshareholder with respect to such Investment Property upon the occurrence and during the continuance of any Event of Default, Commodity Intermediarywhich proxy is coupled with an interest and is irrevocable until the Facility Termination Date, any Pledgor or any other personand each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that nothing contained the Administrative Agent in its discretion may from time to time refrain from exercising, and shall not be obligated to exercise, any such voting or consensual rights or such proxy. For purposes of this Section 3.4(cSecurity Agreement, “Facility Termination Date” means the date as of which all of the following shall have occurred: (a) the Borrower shall release or relieve any Securities Intermediary or Commodity Intermediary have permanently terminated the credit facilities under the Loan Documents by final payment in full of its duties all Outstanding Amounts, together with all accrued and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims unpaid interest and fees thereon, other than (i) the undrawn portion of whatever kind or nature with respect to the Investment Property Letters of Credit and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor (ii) all letter of credit fees relating thereto accruing after such date (which fees shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so be payable solely for the account of such Pledgor the L/C Issuer and shall be computed (based on interest rates and the Pledgors Applicable Rate then in effect) on such undrawn amounts to the respective expiry dates of the Letters of Credit), in each case as have been fully Cash Collateralized or as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the L/C Issuer shall promptly reimburse have been made; (b) all Commitments shall have terminated or expired; (c) the obligations and indemnify liabilities of the Collateral Borrower and each other Loan Party under all Related Credit Arrangements shall have been fully, finally and irrevocably paid and satisfied in full and the Related Credit Arrangements shall have expired or been terminated, or other arrangements satisfactory to the counterparties shall have been made with respect thereto; and (d) the Borrower and each other Loan Party shall have fully, finally and irrevocably paid and satisfied in full all other Obligations (except for obligations consisting of continuing indemnities and other contingent Obligations of the Borrower or any Loan Party that may be owing to the Administrative Agent from all costs and expenses incurred by each of its Related Parties or any Lender pursuant to the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 Loan Documents and expressly survive termination of the Credit AgreementAgreement or any other Loan Document).
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with With respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) Investment Property and Pledged Securities: If any Pledgor Debtor shall at any time hold own or acquire any Pledged Securities which are certificated securities constituting Investment Propertysecurities, whether as a stock split, stock dividend, or other than any securities of a Foreign Subsidiary not required distribution with respect to be pledged hereunder Pledged Securities, or under the Credit Agreementotherwise, such Pledgor Debtor shall promptly promptly, and in any event within ten (A10) endorseBusiness Days after receipt thereof, assign and deliver the same to the Collateral AgentSecured Party, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Secured Party may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities Pledged Securities now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Debtor are uncertificated securities and are issued to such Pledgor Debtor or its nominee directly by the issuer thereof, such Pledgor Debtor shall promptly notify the Collateral Agent thereof and pursuant to an agreement promptly, but in form and substance satisfactory to the Collateral Agent, either any event within ten (x10) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit notify the Secured Party thereof, and shall take any cash actions reasonably requested by the Secured Party to enable the Secured Party to obtain “control” (within the meaning of Section 8.106 of the Code) with respect thereto. If any Pledged Securities, whether certificated securities or uncertificated securities, or other Investment Property and now owned or hereafter acquired by any new securitiesDebtor are owned or acquired by such Debtor or its nominee through a securities intermediary or commodity intermediary, instrumentssuch Debtor shall promptly, documents but in any event within ten (10) Business Days of such intermediary holding such Pledged Securities or other property Investment Property, notify the Secured Party thereof and, shall take any actions reasonably requested by reason the Secured Party to enable the Secured Party to obtain “control” (within the meaning of ownership Section 8.106 and/or Section 9.106 of the Investment Property (other than payments of a kind described in Section 7.4 hereofCode, as applicable) received by it into a Controlled Accountwith respect thereto. The Collateral Agent agrees with each Pledgor To the extent that the Collateral Agent shall not Secured Party has the right pursuant to the foregoing or any control or other similar agreement to give any Entitlement Orders entitlement orders or instructions or directions to any issuer of uncertificated securitiesissuer, Securities Intermediary securities intermediary or Commodity Intermediary, and shall not commodity intermediary or to withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by any Debtor, the Secured Party agrees with each Debtor that the Secured Party shall not give any such Pledgorentitlement orders or instructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent, where required, to the exercise of any withdrawal or dealing rights by any Debtor, unless an Event of Default has occurred and is continuing. So long as no Event of Default has occurred and is continuing, oreach Debtor shall be entitled: to exercise, in a manner not inconsistent with the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgorsterms hereof, the Pledgors shall bear the investment risk voting power with respect to the Investment Property Pledged Securities of such Debtor; and Pledged Securitiesto receive and retain for its own account any and all payments, proceeds, dividends, distributions, property, assets, or rights to the extent such are permitted pursuant to the terms of the Loan Agreement. Upon the occurrence and during the continuance of any Event of Default, all rights of each Debtor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 4.5(b) and to receive the payments, proceeds, dividends, distributions, property, assets, or rights that the Debtor would otherwise be authorized to receive and retain pursuant to Section 4.5(b) shall cease, and thereupon the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject Secured Party shall be entitled to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay exercise all Claims and fees of whatever kind or nature voting power with respect to the Investment Property Pledged Securities and to receive and retain, as Collateral hereunder, any and all payments, proceeds, dividends, distributions, property, assets, or rights declared or paid upon any of the Pledged Securities during such Event of Default and otherwise to act with respect to the Pledged Securities to the same extent as the applicable Debtor would have been, absent application of this clause (c). All payments, proceeds, dividends, distributions, property, assets, instruments or rights that are received by each Debtor contrary to the provisions of this Section 4.5 shall be received and held in trust by such Debtor for the benefit of the Secured Party, shall be segregated by each Debtor from other funds of such Debtor and shall be forthwith paid over to the Secured Party as Pledged Securities in the same form as so received (with any necessary endorsement). If such Debtor is an issuer of Pledged Securities, such Debtor agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) it will comply with instructions received by it pursuant to the terms of Section 4.5(f) with respect to the Pledged Securities issued by it. In addition, if any such Debtor is a partnership or a limited liability company, such Debtor (i) confirms that none of the terms of any Equity Interest issued by it provides that such Equity Interest is a “security” within the meaning of the Code, (ii) agrees that it will take no action to cause or permit any such Equity Interest to become a security, (iii) agrees that it will not issue any certificate representing any such Equity Interest and (iv) agrees that if, notwithstanding the foregoing, any such Equity Interest shall be or become a security, such Debtor will (and the Debtor that holds such Equity Interest hereby instructs such issuing Debtor to) comply with instructions originated by the Secured Party without further consent by such Debtor. Each Debtor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Debtor hereunder to (i) comply with any instruction received by it under from the Secured Party in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement except as Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that each such issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted under hereby, pay any dividends or other payments with respect to the Credit AgreementPledged Securities directly to the Secured Party. In the event DDAs. With respect to any Pledgor shall fail to make DDAs, such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of Debtor maintaining such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred DDA will take any actions reasonably requested by the Collateral Agent under this Secured Party to enable the Secured Party to obtain “control” (within the meaning of Section 3.4(c) in accordance with Section 11.03 9-104 of the Credit AgreementCode) with respect thereto. Each Debtor will comply with the provisions of Section 7.11 of the Loan Agreement governing maintenance of business, cash management, operating and administrative accounts.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) no Pledgor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 14 to the Perfection Certificate and the Certificate. The Collateral Agent has a perfected first priority security interest in each such Securities Accounts Account and Commodity Accounts Account, which security interest is perfected by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed except to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account extent that obtaining such Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed may be completed after the Closing Date pursuant to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities terms of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor Section 4.19 of the Collateral AgentIndenture. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor it shall have given the Collateral Agent 5 Business Daysthirty (30) days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be; provided, that the Collateral Agent shall have the right to waive (or in extend) the case requirement of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c)Control Agreement for any account in its reasonable discretion. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any and all cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereofany Investment Property pledged pursuant to clauses (ii)(1), (iii)(1) or (iii)(3) below) received by it into a Controlled AccountDeposit Account or Securities Account subject to the Collateral Agent's Control. The Collateral Agent agrees with each Pledgor that the such Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Revolving Credit Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 3.4(b) annexed to the Perfection Certificate hereto and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, other than those designated therein as "Not Subject to a Control Agreement as of the Closing Date"; provided that the aggregate amount on deposit in or credited to such Securities Accounts and Commodity Accounts that are not subject to a Control Agreement shall not exceed (A) prior to February 28, 2004, an amount equal to $500,000 in the aggregate for all such Deposit Accounts at any time outstanding or (B) from and after February 28, 2004, an amount equal to $100,000 in the aggregate for all such Securities Accounts and Commodity Accounts at any time outstanding, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities or securities that are expressly permitted to be excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement Agreement, except as contemplated by clause (1) above, with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, Property other than any certificated securities of a Foreign Subsidiary not required that are expressly permitted to be pledged hereunder or under excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, Property other than any securities of a Foreign Subsidiary not required that that are expressly permitted to be pledged hereunder or under excluded from the Pledged Collateral pursuant to Section 5.11(b) of the Credit Agreement, Agreement are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property other than any that are proceeds expressly permitted to be excluded from the Pledged Collateral pursuant to Section 5.11(b) of the pledged Investment Property Credit Agreement in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or such Investment Property and any new securities, instruments, documents or other property by reason of ownership of the such Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Ionics Inc)
Investment Property. (i) As No Pledgor owns or holds, directly or indirectly, beneficially or as record owner or both, any investment property, as of the date hereof, it or has any investment account, securities account, commodity account or other similar account with any bank or other financial institution or other securities intermediary or commodity intermediary as of the date hereof, in each case except as set forth in the Perfection Certificate.
(1ii) has no Securities Accounts The Pledgors shall not, directly or Commodity Accounts indirectly, after the date hereof open, establish or maintain any investment account, securities account, commodity account or any other similar account (other than those listed a deposit account) with any securities intermediary or commodity intermediary that constitute or do or will at any time have any Collateral in Schedule 15 annexed them unless each of the following conditions is satisfied: (A) the Collateral Trustee shall have received not less than five (5) Business Days prior written notice of the intention of such Pledgor to open or establish such account which notice shall specify the name of the account, the owner of the account, the name and address of the securities intermediary or commodity intermediary at which such account is to be opened or established and the purpose of such account and (B) on or before the opening of such investment account, securities account, other similar account with a securities intermediary or commodity intermediary, such Pledgor shall execute and deliver, and cause to be executed and delivered to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by ControlTrustee, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a an Investment Property Control Agreement with respect thereto duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, by such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now intermediary or hereafter acquired by any Pledgor constituting Investment Propertycommodity intermediary; provided, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgorsthat, the Pledgors shall bear the investment risk with respect not be required to the deliver an Investment Property and Pledged SecuritiesControl Agreement as to any investment account, and securities account or commodity account or similar account (other than a deposit account) so long as the risk aggregate value of loss of, damage to, or all assets in such accounts for which the destruction of the Collateral Trustee has not received an Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementdoes not exceed $1,000,000.
Appears in 1 contract
Samples: Second Lien Pledge and Security Agreement (Builders FirstSource, Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 17 annexed to the Perfection Certificate and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 17 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 17 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) use reasonable efforts to cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated un-certificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve the Administrative Agent, any Securities Intermediary or Commodity Intermediary Intermediary, if any, of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all reasonable costs and out-of-pocket expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 11.5 of the Credit Agreement.
Appears in 1 contract
Samples: u.s. Security Agreement (Bombardier Recreational Products Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 SCHEDULE 14 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts (other than the Excluded Accounts) and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 SCHEDULE 14 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 SCHEDULE 14 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section SECTION 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this SECTION 3.4(C) shall not apply to any Financial Assets credited to a Securities Account for which the Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 3.4(cSECTION 3.4(C) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(cSECTION 3.4(C) in accordance with Section 11.03 SECTION 13 of the Credit Purchase Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereofWith respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed each Grantor represents, warrants and covenants to the Perfection Certificate and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Secured Parties that:
(i) Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the Secured Parties pursuant to a Pledge Agreement.
(ii) Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of (a) certificated securities, which certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, or (b) security entitlements credited to one or more securities accounts as to each of which the Administrative Agent has received (1) copies of the account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (each certified to be true and correct by an officer of the Grantor) and (2) a Qualifying Control Agreement from the applicable securities intermediary which remains in full force and effect and as to which the Administrative Agent has not received any notice of termination. Without limiting the generality of the foregoing, no Grantor shall cause, suffer or permit any Investment Property to be credited to or maintained in any securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Administrative Agent and within 5 Business Days taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the delivery of actual receipt thereofsuch Perfection Documents, deposit as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) All dividends and other distributions with respect to any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(other than payments iv) So long as no Default or Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a kind described Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Default or Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in Section 7.4 hereof) received by it into the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a Controlled Account. The Collateral shareholder with respect to such Investment Property upon the occurrence and during the continuance of any Default or Event of Default, which proxy is coupled with an interest and is irrevocable until the Facility Termination Date, and each Grantor hereby agrees to provide such further proxies as the Administrative Agent agrees with each Pledgor may request; provided, however, that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions in its discretion may from time to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediarytime refrain from exercising, and shall not withhold its consent be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the exercise occurrence and during the continuance of any investment Default or withdrawal rights by such Pledgor, unless an Event of Default has occurred Default, all rights of the Grantors to receive and is continuing, or, retain cash dividends and other distributions upon or in the case of withholding consent respect to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property pursuant to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
clause (iii) Subject to Section 11.1(ii)above shall cease and shall thereupon be vested in the Administrative Agent for the benefit of the Secured Parties, as between the Collateral Agent and the Pledgorseach Grantor shall, the Pledgors or shall bear the investment risk cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Administrative Agent (together, and if the risk Administrative Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction option of the Investment Property and Pledged SecuritiesAdministrative Agent, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable lawSecured Obligations. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aand in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security, (i) endorse, assign and deliver the same to the Noteholder Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Noteholder Collateral Agent or (Bii) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Noteholder Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly (and in any event within ten Business Days or such longer period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) after acquiring such security notify the Noteholder Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Noteholder Collateral Agent, either (xi) cause the issuer to agree to comply with Entitlement Orders or other instructions from the Noteholder Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yii) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Noteholder Collateral Agent has Control or (ziii) arrange for the Noteholder Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor The Pledgors shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Noteholder Collateral Agent 5 Business Days' at least 15 days’ (or such shorter period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Noteholder Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Noteholder Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights or dealing rights, would occur. The provisions of this Section 3.4(d) shall not apply to any Financial Assets credited to a Securities Account for which the Noteholder Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control over any Investment Property to any person Person other than the Noteholder Collateral Agent and, prior to the Senior Obligations Payment Date and to the securities intermediary at which extent required under the Intercreditor Agreement, the Senior Representative, and each Pledgor shall promptly (and in any event within ten Business Days or such account is maintained.
(iiilonger period as may be agreed to in writing by the Noteholder Collateral Agent in its sole discretion) Subject notify the Noteholder Collateral Agent if any issuer of Pledged Interests takes any action to Section 11.1(ii)have any Pledged Interests issued by it treated as Securities under Article 8 of the UCC and such Pledgor shall take all steps deemed necessary, as advisable or prudent by the Noteholder Collateral Agent in order to grant Control of such Pledged Interests in favor of the Noteholder Collateral Agent. As between the Noteholder Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Noteholder Collateral Agent, the ABL Agent, the Term Agent, the Additional Noteholder Agent (if applicable), a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.4(d) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person Person under any Control Agreement or under applicable lawLegal Requirements. Each Pledgor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Noteholder Collateral Agent may may, after providing written notice thereof to the Pledgors, do so for the account of such Pledgor Pledgor, and the Pledgors shall promptly reimburse and indemnify the Noteholder Collateral Agent in accordance with Section 11.4(a) hereof and Section 7.07 of the Indenture from all costs and expenses incurred by the Noteholder Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.4(d).
Appears in 1 contract
Investment Property. (i) i. As of the date hereofClosing Date, it no Grantor (1) has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed 3.04(c) hereof and, subject to the Perfection Certificate and Intercreditor Agreement, the Collateral Agent has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts which security interest is perfected by ControlControl unless the Collateral Agent agrees in writing that it is not required, (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities or Excluded Assets and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to 3.04(c) hereof. Unless the Perfection Certificate and (3) Collateral Agent agrees in writing that it is not required, as of the Closing Date, each Grantor has entered into a duly authorized, executed and delivered a Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate3.04(c) hereof, if any, as applicable. No Grantor shall hereafter establish or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary, unless (A) the applicable Grantor shall have given the Collateral Agent ten (10) Business Days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, (B) such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (C) unless the Collateral Agent agrees in writing that it is not required, such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be. Subject to the Intercreditor Agreement, each Grantor shall accept any cash and Investment Property constituting Collateral in trust for the benefit of the Collateral Agent and within five (5) Business Days of actual receipt thereof, deposit any and all such cash and Investment Property (other than any Investment Property pledged pursuant to clauses (iii)(1), (iii)(1) or (iii)(3) below) received by it into a Deposit Account or Securities Account subject to the Collateral Agent’s Control. The provisions of this Section 3.04(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Grantor shall grant control over any Investment Property to any person other than the Revolving Collateral Agent or Collateral Agent.
(ii) . If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment PropertyProperty included in the Collateral with a face value in excess of $500,000 in the aggregate, other than any securities of a Foreign Subsidiary not required such Grantor shall, subject to be pledged hereunder or under the Credit Intercreditor Agreement, such Pledgor shall promptly (A1) endorseindorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B2) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Collateral Agent.
iii. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under Property included in the Credit Agreement, Collateral are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (x1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z3) arrange for the Collateral Agent to become the registered owner of the such securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (New Enterprise Stone & Lime Co., Inc.)
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of actual receipt thereof, deposit any cash or Investment Property and any new (a) certificated securities, instrumentswhich certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, documents or other property by reason (b) security entitlements credited to one or more securities accounts as to each of ownership which the Administrative Agent has received (1) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (2) upon the request of the Administrative Agent, a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) full force and effect and as to which the Administrative Agent has not received by it into a Controlled Accountany notice of termination. The Collateral Agent agrees with each Pledgor that Without limiting the Collateral Agent generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Collateral Administrative Agent and taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the securities intermediary at which delivery of such account is maintainedPerfection Documents, as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) Subject All dividends and other distributions with respect to Section 11.1(iiany of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(iv) So long as no Default or Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Default or Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as between appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Collateral Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a shareholder with respect to such Investment Property upon the Pledgorsoccurrence and during the continuance of any Default or Event of Default, which proxy is coupled with an interest and is irrevocable until the Pledgors Facility Termination Date, and each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that the Administrative Agent in its discretion may from time to time refrain from exercising, and shall bear not be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the investment risk occurrence and during the continuance of any Default or Event of Default, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) above shall cease and shall thereupon be vested in the Administrative Agent for the benefit of the Secured Parties, and each Grantor shall, or shall cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Administrative Agent (together, and if the risk Administrative Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction option of the Investment Property and Pledged SecuritiesAdministrative Agent, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementSecured Obligations.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts securities accounts or Commodity Accounts commodity accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate and (to the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) has entered within 30 days of the date hereof, shall enter into and deliver, a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement duly authorized and executed by the applicable Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral AgentTrustee, accompanied by such instruments of transfer or assignment duly executed in blank, blank (all in form and substance reasonably satisfactory to the Collateral Agent Trustee) as shall be necessary to create a perfected security interest in such assets or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral AgentTrustee. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent Trustee thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree execute and deliver to comply with instructions from the Collateral Agent as to Trustee an acknowledgement of the pledge of such securities, without further consent uncertificated securities substantially in the form of any Pledgor Exhibit 1 annexed hereto or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent Trustee has Control or (zc) arrange for the Collateral Agent Trustee to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' Trustee 10 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, and (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, at the time such Securities Account or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c)is established. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to a Control Agreement. The Collateral Agent Trustee agrees with each Pledgor that the Collateral Agent Trustee shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case . The provisions of withholding consent to investment or withdrawal rights after giving effect this Section 3.4(c) shall not apply to any such investment and withdrawal rights would occurFinancial Assets credited to a Securities Account for which the Trustee is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedTrustee.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent Trustee and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral AgentTrustee, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Unless such Claims constitute Permitted Collateral Liens, each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent Trustee may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent Trustee from all costs and expenses incurred by the Collateral Agent Trustee under this Section 3.4(c) in accordance with Section 11.03 7.7 of the Credit AgreementIndenture.
Appears in 1 contract
Samples: Security Agreement (Us Lec Corp)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Administrative Agent has a perfected first second priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Administrative Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Administrative Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Administrative Agent's Control. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all costs and expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 12.03 of the Credit Second Lien Term Loan Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit AgreementProperty that is Collateral, such Pledgor shall promptly promptly, and in any event within ten Business Days of acquiring such security (Aor such later date as may be agreed to in writing by the Collateral Agent in its sole discretion), (i) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bii) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property that are Collateral are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly promptly, and in any event within ten Business Days of acquiring such security (or such later date as may be agreed to in writing by the Collateral Agent in its sole discretion), notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xi) cause the issuer to agree to comply with Entitlement Orders or other instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yii) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (ziii) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor The Pledgors shall not hereafter establish and maintain any Securities Account or Commodity Account (other than an Excluded Account) with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' at least 30 days’ (or such shorter period as may be agreed to in writing by the Collateral Agent in its sole discretion) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights immediately after giving effect to any such investment and withdrawal rights or dealing rights, would occur. None of the provisions of this Section 3.4(d) shall apply to (x) any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary, or (y) any security, Investment Property, Securities Account or Commodities Account that does not constitute Collateral. No Pledgor shall grant Control over any Investment Property that constitutes Collateral to any person Person other than the Collateral Agent, and each Pledgor shall promptly (and in any event within ten Business Days) notify the Collateral Agent if any issuer of Pledged Interests takes any action to have any Pledged Interests issued by it treated as Securities under Article 8 of the UCC and such Pledgor shall take all steps reasonably deemed necessary, advisable or prudent by the securities intermediary at which Collateral Agent in order to grant Control of such account is maintained.
(iii) Subject to Section 11.1(ii), as Pledged Interests in favor of the Collateral Agent. As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.4(d) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person Person under any Control Agreement or under applicable lawLegal Requirements. Each Pledgor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent in accordance with, and to the extent provided by, Section 10.03 of Credit Agreement from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.4(d).
Appears in 1 contract
Samples: Security Agreement (Internap Corp)
Investment Property. (i) As of the date hereof, it no Grantor (1) has no Securities Accounts or Commodity Accounts any Investment Property other than those that listed in Schedule 15 annexed to the Perfection Certificate 6(b) hereof and the Collateral Agent Lender has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts by ControlInvestment Property (except to the extent such Investment Property constitutes Excluded Equity), (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities securities, other than those constituting Excluded Equity or Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to 6(b). As of the Perfection Certificate and (3) date hereof, each Grantor has entered into a duly authorized, executed and delivered a Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate6(b) hereof, if any, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor Grantor shall hereafter establish and or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract Intermediary, unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractLender agrees in writing that it is not required, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed execute and delivered deliver a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in be within 30 days after the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c)establishment thereof. Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent Lender and within 5 five (5) Business Days of actual receipt thereof, deposit any and all cash or and Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Lender’s Control. The Collateral Agent Lender agrees with each Pledgor Grantor that the Collateral Agent Lender shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, continuing beyond any applicable grace or cure periods or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section shall not apply to any Financial Assets credited to a Securities Account for which Lender is the Securities Intermediary. No Pledgor Grantor shall grant Control over any Investment Property to any person Person other than Lender.
(ii) If any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, such Grantor shall to the Collateral Agent extent such Investment Property is not Excluded Property promptly (1) endorse, assign and deliver the same to Lender, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance satisfactory to Lender or (2) deliver such securities intermediary at into a Securities Account with respect to which such account a Securities Account Control Agreement is maintainedin effect in favor of Lender.
(iii) Subject If any securities now or hereafter acquired by any Grantor constituting Investment Property are uncertificated and are issued to Section 11.1(ii)such Grantor or its nominee directly by the issuer thereof, such Grantor shall to the extent such Investment Property is not Excluded Property promptly notify Lender thereof and pursuant to an agreement in form and substance reasonably satisfactory to Lender, either (1) cause the issuer to agree to comply with instructions from Lender as between the Collateral Agent and the Pledgorsto such securities, the Pledgors shall bear the investment risk without further consent of any Grantor or such nominee, (2) cause a Security Entitlement with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether such uncertificated security to be held in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature Account with respect to which Lender has Control or (3) arrange for Lender to become the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account registered owner of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementsecurities.
Appears in 1 contract
Investment Property. Each Lien Grantor represents, warrants and covenants as follows:
(a) On the Effective Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will deliver to the Collateral Agent as Collateral hereunder all certificates representing Pledged Certificated Securities then owned by such Lien Grantor. Thereafter, whenever such Lien Grantor acquires any other certificate representing a Pledged Certificated Security, such Lien Grantor will immediately deliver such certificate to the Collateral Agent as Collateral hereunder. The provisions of this subsection are subject to the limitation in Section 11(l) in the case of voting Equity Interests in a Foreign Subsidiary.
(b) Within 30 days after the Effective Date (in the case of an Original Lien Grantor) or the date on which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will enter into (and use commercially reasonable efforts to cause the relevant issuer to enter into) an Issuer Control Agreement in respect of each Pledged Uncertificated Security (other than any Pledged Uncertificated Security held in a Controlled Securities Account) then owned by such Lien Grantor and deliver such Issuer Control Agreement to the Collateral Agent (which shall enter into the same). Thereafter, whenever such Lien Grantor acquires any other Pledged Uncertificated Security, such Lien Grantor will enter into (and cause the relevant issuer to enter into) an Issuer Control Agreement in respect of such Pledged Uncertificated Security and deliver such Issuer Control Agreement to the Collateral Agent (which shall enter into the same). The provisions of this subsection are subject to (i) As the limitation in Section 11(l) in the case of voting Equity Interests in a Foreign Subsidiary and (ii) Sections 11(d), 11(k) and 11(m).
(c) Within 30 days after the Effective Date (in the case of an Original Lien Grantor) or the date hereofon which it signs and delivers its first Security Agreement Supplement (in the case of any other Lien Grantor), such Lien Grantor will, with respect to each Security Entitlement then owned by it with respect to Financial Assets held in a Securities Account (1) has no Securities Accounts or Commodity Accounts other than those listed Security Entitlements with respect to any entity organized in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities jurisdiction other than those constituting Pledged the United States), enter into (and use its commercially reasonable efforts to cause the relevant Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed Intermediary to the Perfection Certificate and (3enter into) has entered into a duly authorized, executed and delivered Securities Account Control Agreement in respect of such Security Entitlement and the Securities Account to which the underlying Financial Asset is credited and will deliver such Securities Account Control Agreement to the Collateral Agent (which shall enter into the same); PROVIDED that in the event such Securities Intermediary refuses to so enter into such a Securities Account Control Agreement, such Lien Grantor shall transfer such Securities Account to a different Securities Intermediary reasonably acceptable to the Collateral Agent and cause such Securities Intermediary to so enter into such a Securities Account Control Agreement. Thereafter, whenever such Lien Grantor acquires any other Security Entitlement (other than Security Entitlements with respect to any entity organized in a jurisdiction other than the United States, and other than with respect to Investment Property covered by other provisions of this Section), such Lien Grantor will, as promptly as practicable, cause the underlying Financial Asset to be credited to a Controlled Securities Account. The provisions of this subsection are subject to (i) the limitation in Section 11(l) in the case of voting Equity Interests in a Foreign Subsidiary and (ii) Sections 11(d), 11(k) and 11(m).
(d) The Lien Grantors have the right not to comply with the foregoing provisions of this Section with respect to Pledged Investment Property (other than any Pledged Investment Property with respect to which the Lien Grantors have already complied with the foregoing provisions of this Section) having a fair market value that does not at any time exceed $1,000,000 in the aggregate for all Lien Grantors. However, if an Event of Default occurs and is continuing, the Collateral Agent may (and shall, if directed by the Administrative Agent to do so) terminate the foregoing right not to comply, or reduce the amount thereof, by giving at least 5 Business Days' notice of such termination or reduction to the relevant Lien Grantors.
(e) Upon the delivery of the certificate representing any Pledged Certificated Security (other than in respect of any Security of an entity organized in a Commodity Account jurisdiction outside the United States) owned by such Lien Grantor to the Collateral Agent and compliance with Section 11(j) in connection with such delivery, (i) the Security Interests in such Pledged Certificated Security will be perfected, subject to no prior Liens or rights of others other than tax liens and judgment liens that are Permitted Liens, (ii) the Collateral Agent will have Control of such Pledged Certificated Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
(f) When such Lien Grantor, the Collateral Agent and the issuer of any Pledged Uncertificated Security (other than in respect of any Security of an entity organized in a jurisdiction outside the United States) owned by such Lien Grantor enter into an Issuer Control Agreement with respect thereto, (i) the Security Interests in such Pledged Uncertificated Security will be perfected, subject to each no prior Liens or rights of others other than tax liens and judgment liens that are Permitted Liens, (ii) the Collateral Agent will have Control of such Pledged Uncertificated Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof.
(g) If and when any Pledged Security (other than in respect of any Security of an entity organized in a jurisdiction outside the United States and whether certificated or uncertificated) owned by such Lien Grantor is transferred of record into the name of the Collateral Agent or its nominee pursuant to Section 13(a), (i) the Security Interests in such Pledged Security will be perfected, subject to no prior Liens or rights of others other than tax liens and judgment liens that are Permitted Liens, (ii) the Collateral Agent will have Control of such Pledged Security and (iii) the Collateral Agent will be a protected purchaser (within the meaning of UCC Section 8-303) thereof. If and when any Pledged Security owned by such Lien Grantor is credited to its Investment Property Account pursuant to Section 13(a), Section 11(h) will apply to the resulting Security Entitlement.
(h) So long as the Financial Asset underlying any Security Entitlement owned by such Lien Grantor is credited to a Controlled Securities Account or Commodity to its Investment Property Account listed (other than any Financial Asset in Schedule 15 annexed respect of an entity organized in a jurisdiction outside the United States), (i) the Security Interests in such Security Entitlement will be perfected, subject to no prior Liens or rights of others (except Liens and rights of the Perfection Certificaterelevant Securities Intermediary permitted by Section 4 of the applicable Securities Account Control Agreement and other than tax liens and judgment liens that are Permitted Liens), as applicable(ii) the Collateral Agent will have Control of such Security Entitlement and (iii) no action based on an adverse claim to such Security Entitlement or such Financial Asset, whether framed in conversion, replevin, constructive trust, equitable lien or other theory, may be asserted against the Collateral Agent or any Secured Party.
(iii) If any Pledgor shall In respect of all Security Entitlements owned by such Lien Grantor, and all Securities Accounts to which the related Financial Assets are credited, the Securities Intermediary's jurisdiction (determined as provided in UCC Section 8-110(e)) will, except with the consent of the Collateral Agent, at any time hold or acquire any certificated securities constituting Investment Propertyall times be located in the United States.
(j) All Pledged Certificates, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same when delivered to the Collateral Agent, will be in suitable form for transfer by delivery, or accompanied by such duly executed instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or Agent.
(Bk) deliver such securities into a Securities Account with respect If the provisions of Section 13(a) are implemented, Sections 11(b) and 11(c) shall not thereafter apply to which a Control Agreement (i) any Pledged Security that is registered in effect in favor the name of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor Agent or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either or (xii) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with in respect to such uncertificated security to be held in a Securities Account with respect to of which the Collateral Agent has Control or its nominee is the Entitlement Holder.
(zl) arrange for A Lien Grantor will not be obligated to comply with the provisions of this Section at any time with respect to any voting Equity Interest in a Foreign Subsidiary if and to the extent (but only to the extent) that such voting Equity Interest is excluded from the Security Interests at such time pursuant to clause (iii) of the proviso at the end of Section 2(a) and/or the comparable provisions of one or more Security Agreement Supplements.
(m) If and so long as the Collateral Agent to become includes any Equity Interest in a Material Foreign Subsidiary or any Additional Foreign Property, the registered owner relevant Lien Grantor will, as promptly as is reasonably commercially practicable, take all such action as may be required under the laws of the securitiesrelevant foreign jurisdiction to ensure that the Security Interests in such Collateral rank prior to all Liens and rights of others therein other than Liens arising by operation of law. Except If and so long as expressly permitted under such Collateral includes (i) any Pledged Uncertificated Security issued by such a foreign legal entity, the Credit Agreementrelevant Lien Grantor will comply with this subsection, no Pledgor shall hereafter establish and maintain will not be required to comply with Section 11(b), with respect thereto and (ii) any Securities Account or Commodity Account held outside the United States, the relevant Lien Grantor will comply with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may bethis subsection, and such Pledgor shall have duly executed and delivered a Control Agreement will not be required to comply with Section 11(c), with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedthereto.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Polaroid Corp)
Investment Property. (i) As of the date hereof, it (1) no Grantor has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate Accounts, and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not holdno Grantor holds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts Securities. No Grantor shall hereafter establish or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each maintain any Securities Account or Commodity Account listed with any Securities Intermediary or Commodity Intermediary unless (A) the applicable Grantor shall have given the Collateral Agent 30 days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, and (B) unless the Collateral Agent agrees in Schedule writing that it is not required, such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall within 15 annexed days of opening such Commodity Account with such Securities Intermediary or Commodity Intermediary deliver to Collateral Agent a duly executed control agreement in form and substance reasonably acceptable with respect to such Securities Account or Commodity Account, as the case may be. Each Grantor shall accept any cash and Investment Property in trust for the benefit of the Collateral Agent and within ten (10) Business Days of actual receipt thereof, deposit any and all cash and Investment Property received by it into a Deposit Account or Securities Account subject to the Perfection Certificate, as applicableCollateral Agent’s Control. No Grantor shall grant Control over any Investment Property to any Person other than the Collateral Agent.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required such Grantor shall, subject to be pledged hereunder or under the Credit Intercreditor Agreement, such Pledgor shall promptly (A1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B2) deliver such securities into a Securities Account with respect to which a Control Agreement control agreement in form and substance acceptable to the Collateral Agent is in effect in favor of the Collateral Agent. .
(iii) If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and and, subject to the Intercreditor Agreement,pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (x1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z3) arrange for the Collateral Agent to become the registered owner of the such securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Medicine Man Technologies, Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(iii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities Property and which have a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under $500,000 in the Credit Agreementaggregate, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days15 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, and (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights or dealing rights, would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iiiii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 13.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains, as of the date hereof, it a true and complete description of (1x) has no Securities Accounts the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or Commodity Accounts may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than those listed interests in Schedule 15 annexed Subsidiaries in which such Grantor has granted a Lien to the Perfection Certificate and Administrative Agent for the Collateral Agent has benefit of the Secured Parties pursuant to a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of actual receipt thereof, deposit any cash or Investment Property and any new (a) certificated securities, instrumentswhich certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, documents or other property by reason (b) security entitlements credited to one or more securities accounts as to each of ownership which the Administrative Agent has received a Qualifying Control Agreement from the applicable securities intermediary which remains in full force and effect and as to which the Administrative Agent has not received any notice of termination. Without limiting the generality of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Administrative Agent and taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the delivery of such Perfection Documents, as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder. To the extent any Investment Property constituting Collateral hereunder is a certificated security, physical possession of which is required to be delivered to the Administrative Agent, any requirement herein to deliver physical possession of such certificated securities to the Administrative Agent shall be deemed satisfied if the Grantors deliver each such certificate, together with stock powers endorsed in blank with respect thereto, no later than the Collateral Agent later to occur of (i) the Closing Date and (ii) fifteen (15) days after the securities intermediary at which date that such account is maintainedInvestment Property becomes a certificated security.
(iii) Subject All dividends and other distributions with respect to Section 11.1(iiany of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(iv) So long as no Event of Default shall have occurred and be continuing and the subject Grantor shall not have received a written revocation notice from the Administrative Agent, the registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Event of Default and at the option of the Administrative Agent following written notice thereof to the Grantors suspending such rights (the “Trigger Date”), as between all rights of the Collateral Agent Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the PledgorsAdministrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the Pledgors name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a shareholder with respect to such Investment Property upon the occurrence of a Trigger Date, and until the circumstances giving rise thereto have been cured and waived, which proxy is coupled with an interest and is irrevocable until the Facility Termination Date, and each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that the Administrative Agent in its discretion may from time to time refrain from exercising, and shall bear not be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the investment risk occurrence of a Trigger Date, and until the circumstances giving rise thereto have been cured and waived, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) above shall cease and shall thereupon be vested in the Administrative Agent for the benefit of the Secured Parties, and each Grantor shall, or shall cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Administrative Agent (together, and if the risk Administrative Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction option of the Investment Property and Pledged SecuritiesAdministrative Agent, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementSecured Obligations.
Appears in 1 contract
Samples: Credit Agreement (Power One Inc)
Investment Property. (i) As of the date hereof, hereof each Pledgor ------------------- hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts Account or Commodity Accounts Account other than those listed in Schedule 15 3.4 (c) annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablehereto.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) immediately endorse, assign and deliver the same to the Collateral AgentTrustee, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral AgentTrustee. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer Issuer thereof, such Pledgor shall promptly immediately notify the Collateral Agent Trustee thereof and pursuant to an agreement in form and substance satisfactory to the Collateral AgentTrustee, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent Trustee as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent Trustee to become the registered owner of the securities. Except as expressly permitted under the Credit AgreementIf any securities constituting Investment Property, no whether certificated or uncertificated, or other Investment Property now or hereafter acquired by any Pledgor shall hereafter establish and maintain any Securities Account are held by such Pledgor or Commodity Account with any its nominee through a Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Intermediary, such Pledgor shall have given immediately notify the Collateral Agent 5 Business Days' prior written notice of its intention Trustee thereof and, pursuant to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) an agreement in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable form and substance satisfactory to the Collateral Agent and Trustee, either (3i) cause such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement to agree to comply with respect Entitlement Orders or other instructions from the Trustee to such Securities Account Intermediary as to such securities or other Investment Property, or to apply any value distributed on account of any Commodity AccountContract as directed by the Trustee to such Commodity Intermediary, as the case may be, in each case without further consent of any Pledgor or such nominee, or (ii) in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Financial Assets constituting Investment Property that are proceeds of the pledged or other Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, held through a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations arrange for the Trustee to become the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature Entitlement Holder with respect to the such Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentenceProperty, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.the
Appears in 1 contract
Samples: Security Agreement (Raceland Truck Plaza & Casino LLC)
Investment Property. (i) As of the date hereof, it no Grantor (1) has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate 7 hereof and the Collateral Agent has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts which security interest is perfected by Control, (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed 7 hereof. No Grantor shall hereafter establish or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary unless (A) the applicable Grantor shall have given the Collateral Agent 30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary, (B) such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Perfection Certificate Collateral Agent and (3C) has entered into a such Securities Intermediary or Commodity Intermediary, as the case may be, and such Grantor shall have duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each such Securities Account or Commodity Account, as the case may be. Each Grantor shall accept any cash and Investment Property in trust for the benefit of the Collateral Agent and within five Business Days of actual receipt thereof, deposit any and all cash and Investment Property received by it into a Deposit Account listed in Schedule 15 annexed or Securities Account subject to the Perfection Certificate, as applicableCollateral Agent's Control. The provisions of this Section Section 3.04(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Grantor shall grant Control over any Investment Property to any Person other than the Collateral Agent.
(ii) If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor Grantor shall promptly (A1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B2) deliver such securities into a Securities Account with respect to which a Control Agreement with respect to the Securities Account is in effect in favor of the Collateral Agent. .
(iii) If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (x1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y2) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z3) arrange for the Collateral Agent to become the registered owner of the such securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Collateral Agent's Control. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with With respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.Investment Property and Pledged Securities:
(iia) If any Pledgor Debtor shall at any time hold or acquire any Pledged Securities which are certificated securities constituting Investment Propertysecurities, whether as a stock split, stock dividend, or other than any securities of a Foreign Subsidiary not required distribution with respect to be pledged hereunder Pledged Securities, or under the Credit Agreementotherwise, such Pledgor Debtor shall promptly promptly, and in any event within ten (A10) endorseBusiness Days after receipt thereof, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Administrative Agent may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities Pledged Securities now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Debtor are uncertificated securities and are issued to such Pledgor Debtor or its nominee directly by the issuer thereof, such Pledgor Debtor shall promptly immediately notify the Collateral Administrative Agent thereof, and shall take any actions requested by the Administrative Agent to enable the Administrative Agent to obtain “control” (within the meaning of Section 8-106 of the UCC) with respect thereto. If any Pledged Securities, whether certificated securities or uncertificated securities, or other Investment Property now or hereafter acquired by any Debtor are held or acquired by such Debtor or its nominee through a securities intermediary or commodity intermediary, such Debtor shall immediately notify the Administrative Agent thereof and and, shall take any actions requested by the Administrative Agent to enable the Administrative Agent to obtain “control” (within the meaning of Section 8-106 and/or Section 9-106 of the UCC, as applicable) with respect thereto. To the extent that the Administrative Agent has the right pursuant to an agreement in form and substance satisfactory the foregoing to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders entitlement orders or instructions or directions to any issuer issuer, securities intermediary or commodity intermediary or to withhold its consent to the exercise of uncertificated securitiesany withdrawal or dealing rights by any Debtor, Securities Intermediary the Administrative Agent agrees with each Debtor that the Administrative Agent shall not give any such entitlement orders or Commodity Intermediaryinstructions or directions to any such issuer, securities intermediary or commodity intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Debtor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iiib) Subject So long as no Event of Default has occurred and is continuing, each Debtor shall be entitled:
(i) to Section 11.1(ii)exercise, as between in a manner not inconsistent with the Collateral Agent and the Pledgorsterms hereof, the Pledgors shall bear the investment risk voting power with respect to the Investment Property and Pledged SecuritiesSecurities of such Debtor, and for that purpose the risk of loss of, damage to, or Administrative Agent shall (if any Pledged Securities shall be registered in the destruction name of the Investment Property Administrative Agent or its nominee) execute or cause to be executed from time to time, at the expense of the Parent, such proxies or other instruments in favor of such Debtor or its nominee, in such form and Pledged Securitiesfor such purposes as shall be reasonably requested by such Debtor, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations enable it to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature exercise such voting power with respect to the Investment Property Pledged Securities; and
(ii) except as otherwise provided herein or in the Credit Agreement, to receive and retain for its own account any and all payments, proceeds, dividends, distributions, property, assets, or rights to the extent such are permitted pursuant to the terms of the Credit Agreement, other than (x) stock or liquidating dividends or (y) other dividends or other amounts payable under or in connection with any recapitalization, restructuring, or other non-ordinary course event (the dividends and amounts in this clause (y) being “Extraordinary Payments”), paid, issued, or distributed from time to time in respect of the Pledged Securities. If any Extraordinary Payment is paid or payable, then such sum shall be paid by each such Debtor to the Administrative Agent promptly, and in any event within ten (10) Business Days after receipt thereof, to be held by the Administrative Agent as additional collateral hereunder.
(c) Upon the occurrence and during the continuance of any Event of Default, all rights of each Debtor to exercise or refrain from exercising the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to Section 4.6(b) and to receive the payments, proceeds, dividends, distributions, property, assets, or rights that the Debtor would otherwise be authorized to receive and retain pursuant to Section 4.6(b) shall cease, and thereupon the Administrative Agent shall be entitled to exercise all voting power with respect to the Pledged Securities and to receive and retain, as additional collateral hereunder, any and all payments, proceeds, dividends, distributions, property, assets, or rights at any time declared or paid upon any of the Pledged Securities during such an Event of Default and otherwise to act with respect to the Pledged Securities as outright owner thereof.
(d) All payments, proceeds, dividends, distributions, property, assets, instruments or rights that are received by each Debtor contrary to the provisions of this Section 4.6 shall be received and held in trust for the benefit of the Administrative Agent, shall be segregated by each Debtor from other funds of such Debtor and shall be forthwith paid over to the Administrative Agent as Pledged Securities in the same form as so received (with any necessary endorsement).
(e) If such Debtor is an issuer of Pledged Securities, such Debtor agrees that (i) it will be bound by the terms of this Agreement relating to the Pledged Securities issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) it will comply with instructions received by it pursuant to the terms of Section 4.6(f) with respect to the Pledged Securities issued by it. In addition, if any such Debtor is a partnership or a limited liability company, such Debtor (i) confirms that none of the terms of any equity interest issued by it provides that such equity interest is a “security” within the meaning of the UCC, (ii) agrees that it will take no action to cause or permit any such equity interest to become a security, (iii) agrees that it will not issue any certificate representing any such equity interest and (iv) agrees that if, notwithstanding the foregoing, any such equity interest shall be or become a security, such Debtor will (and the Debtor that holds such equity interest hereby instructs such issuing Debtor to) comply with instructions originated by the Administrative Agent without further consent by such Debtor.
(f) Each Debtor hereby authorizes and instructs each issuer of any Pledged Securities pledged by such Debtor hereunder to (i) comply with any instruction received by it under from the Administrative Agent in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement except as Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that each such issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted under hereby, pay any dividends or other payments with respect to the Credit Agreement. In Pledged Securities directly to the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementAdministrative Agent.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority First Priority security interest (subject to Permitted Collateral Liens) in such Securities Accounts and Commodity Accounts (other than Excluded Accounts) by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate and (3) as of the Amendment and Restatement Effective Date, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection CertificateCertificate (other than Excluded Accounts), as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zc) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days30 days' (or such shorter period as the Collateral Agent may approve) prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, upon which Schedule 16 shall have caused such Commodity Contract be deemed to be credited amended to a Commodity Account satisfying the requirements of this Section 3.4(c)cover such additional Collateral. Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 three (3) Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property (other than a Deposit Account which is deemed an Excluded Account pursuant to clause (b) of the definition of "Excluded Account") to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedSecond Lien Collateral Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor Debtor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit AgreementCollateral, such Pledgor Debtor shall promptly (A) forthwith endorse, assign and deliver the same to the Collateral AgentLender, to be held as Collateral, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as Lender may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities now or hereafter acquired by any Pledgor Debtor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Collateral are uncertificated and are issued to such Pledgor Debtor or its nominee directly by the issuer Issuer thereof, such Pledgor Debtor shall promptly notify Lender thereof and, at Lender’s request (i) certificate such securities and deliver such certificates to Lender or (ii) pursuant to an agreement in form and substance reasonably satisfactory to Lender, cause the Collateral Agent Issuer to agree to comply with instructions from Xxxxxx as to such securities upon the occurrence and during the continuance of a Default, without further consent of such Debtor or such nominee. If at any time any Debtor owns any uncertificated Equity Interests in any of the Issuers which become certificated, such Debtor shall promptly deliver such certificates along with blank transfer powers to Lender. No Debtor shall take any action that would allow any Pledged Securities which are not currently classified as a “security” under Article 8 of the Code to become classified as a “security” under Article 8 of the Code. If any securities constituting Collateral, whether certificated or uncertificated, or other investment property now or hereafter acquired by any Debtor are held by such Debtor or its nominee through a securities intermediary or commodity intermediary, such Debtor shall immediately notify Lender thereof and, at Lender’s request and option, pursuant to an agreement in form and substance satisfactory to Lender, cause such securities intermediary or (as the Collateral Agent, either (xcase may be) cause the issuer commodity intermediary to agree to comply with entitlement orders or other instructions from the Collateral Agent Lender to such securities intermediary as to such securitiessecurities or other investment property upon the occurrence and during the continuance of a Default, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect ) to apply any value distributed on account of any commodity contract as directed by Xxxxxx to such Securities Account commodity intermediary, in each case without further consent of such Debtor or Commodity Account, as the case may be, or in the case such nominee. The provisions of a Commodity Contract, this paragraph shall have caused such Commodity Contract not apply to be any financial assets credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust securities account for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and which Lender is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreementintermediary. In the event that any Pledgor shall fail to make such payment contemplated in the immediately preceding sentencePledged Securities are not listed on Schedule II hereto, the Collateral Agent may do so for the account of Debtors shall update and supplement Schedule II to reflect such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementPledged Securities.
Appears in 1 contract
Samples: Pledge and Security Agreement (HNR Acquisition Corp.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now BOW or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in iii form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Administrative Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Administrative Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other ether than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Administrative Agent's Control. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors Hedgers shall bear the investment risk with respect to the Investment Property and arid Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, . Commodity Intermediary, any Pledgor or any other person; provided, however, . that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all costs and expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 12.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicableSecurities.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities Property and having a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement$400,000, such Pledgor shall promptly promptly, and in any event within 30 days of acquiring such security, (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities Property and having a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, $400,000 are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly promptly, and in any event within 30 days of acquiring such security, notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Administrative Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Administrative Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property received by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. The provisions of this Section 3.4(c) shall not apply to any Financial Assets credited to a Securities Account for which the Administrative Agent is the Securities Intermediary. No Pledgor shall grant Control control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintainedAdministrative Agent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all costs and expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 subsection 11.5 of the Credit Agreement.
Appears in 1 contract
Samples: Security Agreement (Atlantic Broadband Management, LLC)
Investment Property. (i) As of the date hereof, it hereof each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 13(a) annexed to the Perfection Certificate Certificate, and the Collateral Administrative Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Controlsubject in each case to Permitted Priority Liens (other than those which are expressly waived pursuant to a Securities Account Control Agreement or a Commodity Account Control Agreement, as applicable), (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 13 annexed to the Perfection Certificate Certificate, and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement Agreement, substantially in the form of Exhibit 4 annexed hereto, or a Commodity Account Control Agreement Agreement, in a form reasonably satisfactory to the Administrative Agent, with respect to each Securities Account or Commodity Account listed in Schedule 15 13 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of has been executed and delivered to the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no No Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property and shall promptly upon, and in trust for the benefit of the Collateral Agent and any event within 5 one (1) Business Days of Day of, actual receipt thereof, (a) deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Control Account, or (b) in the case of uncertificated securities, transfer registered ownership of such securities to the Administrative Agent. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor The provisions of this Section 3.4(c) shall grant Control over any Investment Property not apply to any person other than Financial Assets credited to a Securities Account for which the Collateral Administrative Agent and is the securities intermediary at which such account is maintainedSecurities Intermediary.
(iii) Subject to Section 11.1(ii), as As between the Collateral Administrative Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, or registered in the Collateral name of, the Administrative Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other personperson or otherwise; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary Intermediary, if any, or the Administrative Agent, of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Administrative Agent from all reasonable costs and out-of-pocket expenses incurred by the Collateral Administrative Agent under this Section 3.4(c) in accordance with Section 11.03 11.5 of the Credit Agreement.
Appears in 1 contract
Samples: Canadian Security Agreement (Bombardier Recreational Products Inc.)
Investment Property. (i) As of the date hereof, it Each Pledgor (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and the Collateral Administrative Agent has a perfected first third priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 16 annexed to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (3) as of the date hereof, has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 16 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (Aa) endorse, assign and deliver the same to the Collateral Administrative Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (Bb) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Administrative Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Administrative Agent thereof and pursuant to an agreement in form and substance reasonably satisfactory to the Collateral Administrative Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Administrative Agent as to such securities, without further consent of any Pledgor or such nominee, (yb) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Administrative Agent has Control or (zc) arrange for the Collateral Administrative Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall not hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Administrative Agent 5 Business Days30 days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Administrative Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Administrative Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Administrative Agent's Control. The Collateral Administrative Agent agrees with each Pledgor that the Collateral Administrative Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk The provisions of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve not apply to any Financial Assets credited to a Securities Intermediary or Commodity Intermediary of its duties and obligations to Account for which the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Administrative Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.is the
Appears in 1 contract
Investment Property. With respect to Investment Property (i) As of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate Excluded Property) and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.Equity:
(iia) If any Pledgor Debtor shall at any time hold or acquire any Pledged Equity which consists of certificated securities constituting Investment Propertysecurities, whether as a stock split, stock dividend, or other than any securities of a Foreign Subsidiary not required distribution with respect to be pledged hereunder Pledged Equity, or under the Credit Agreementotherwise, such Pledgor Debtor shall promptly promptly, and in any event within thirty (A30) endorsedays after receipt thereof, assign and subject to the Intercreditor Agreement (if applicable), deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to blank as the Collateral Agent or (B) deliver such securities into a Securities Account with respect may from time to which a Control Agreement is in effect in favor of the Collateral Agenttime specify. If any securities Pledged Equity now owned or hereafter acquired by any Pledgor constituting Investment Property, other than any Debtor consists of uncertificated securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are is issued to such Pledgor Debtor or its nominee directly by the issuer thereof, such Pledgor Debtor shall promptly immediately notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory writing thereof, and, subject to the Collateral AgentIntercreditor Agreement (if applicable), either (x) cause the issuer to agree to comply with instructions from shall take any actions reasonably requested by the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for enable the Collateral Agent to become obtain “control” (within the registered owner meaning of Section 8-106 of the UCC) with respect thereto. If any Pledged Equity, whether certificated securities or uncertificated securities. Except as expressly permitted under the Credit Agreement, no Pledgor or other Investment Property constituting Collateral now or hereafter acquired by any Debtor is held or acquired by such Debtor or its nominee through a securities intermediary or commodity intermediary, such Debtor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given immediately notify the Collateral Agent 5 Business Days' prior written notice in writing thereof and, subject to the Intercreditor Agreement (if applicable), shall take any actions reasonably requested by the Collateral Agent to enable the Collateral Agent to obtain “control” (within the meaning of its intention to establish such new Securities Account or Commodity Account Section 8-106 and/or Section 9-106 of the UCC, as applicable) with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contractrespect thereto, (2) in including the case execution of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be Control Agreements reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as Agent. To the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property extent that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days has the right pursuant to the foregoing to give entitlement orders or instructions or directions to any issuer, securities intermediary or commodity intermediary or to withhold its consent to the exercise of actual receipt thereofany withdrawal or dealing rights by any Debtor, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor Debtor that the Collateral Agent shall not give any Entitlement Orders such entitlement orders or instructions or directions to any issuer of uncertificated securitiessuch issuer, Securities Intermediary securities intermediary or Commodity Intermediarycommodity intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorany Debtor, unless an Event of a Priority Lien Debt Default has occurred and is continuing.
(b) So long as no Priority Lien Debt Default has occurred and is continuing, oreach Debtor shall be entitled:
(i) to exercise, in a manner not inconsistent with the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgorsterms hereof, the Pledgors shall bear the investment risk voting power with respect to the Investment Property and Pledged SecuritiesEquity of such Debtor, and for that purpose the risk Collateral Agent shall (if any Pledged Equity shall be registered in the name of loss ofthe Collateral Agent or its nominee) execute or cause to be executed from time to time, damage toat the expense of the Issuer, such proxies or other instruments in favor of such Debtor or its nominee, in such form and for such purposes as shall be reasonably requested by such Debtor, to enable it to exercise such voting power with respect to the Pledged Equity; and
(ii) except as otherwise provided herein or in the Indenture, to receive and retain for its own account any and all payments, proceeds, dividends, distributions, property, assets, or rights to the destruction extent such are permitted pursuant to the terms of the Investment Property and Pledged SecuritiesIndenture, whether other than (x) stock or liquidating dividends or (y) other dividends or other amounts payable under or in the possession ofconnection with any recapitalization, restructuring, or maintained as other non-ordinary course event (the dividends and amounts in this clause (y) being “Extraordinary Payments”), paid, issued or distributed from time to time in respect of the Pledged Equity. During the continuation of a security entitlement Priority Lien Debt Default, if any Extraordinary Payment is paid or deposit bypayable, or then, subject to the control ofIntercreditor Agreement (if applicable), such sum shall be paid by each such Debtor to the Collateral Agent promptly, and in any event within ten (10) Business Days after receipt thereof, to be held by the Collateral Agent, a Securities Intermediaryfor the benefit of the holders of the Secured Obligations, Commodity Intermediaryas additional collateral hereunder.
(c) Upon the occurrence and during the continuance of any Priority Lien Debt Default, any Pledgor all rights of each Debtor to exercise or any refrain from exercising the voting and other person; providedconsensual rights that it would otherwise be entitled to exercise pursuant to Section 4.05(b) and to receive the payments, howeverproceeds, dividends, distributions, property, assets, or rights that nothing contained in this the Debtor would otherwise be authorized to receive and retain pursuant to Section 3.4(c4.05(b) shall release cease, and thereupon the Collateral Agent, at the direction of the Required Priority Lien Debtholders by an Act of Required Priority Lien Debtholders (or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations otherwise, as set forth in the Collateral Agency Agreement), subject to the Pledgors or any other person under any Control Intercreditor Agreement or under applicable law. Each Pledgor (if applicable), shall promptly pay be entitled to exercise all Claims and fees of whatever kind or nature voting power with respect to the Investment Property Pledged Equity and to receive and retain, as additional collateral hereunder, any and all payments, proceeds, dividends, distributions, property, assets, or rights at any time declared or paid upon any of the Pledged Securities pledged by it under this Agreement except Equity during such a Priority Lien Debt Default and otherwise to act with respect to the Pledged Equity as otherwise expressly permitted under the Credit Agreementoutright owner thereof. In the event any Pledgor shall fail to make such payment contemplated that the Collateral Agent, at the direction of the Required Priority Lien Debtholders by an Act of Required Priority Lien Debtholders (or otherwise, as set forth in the immediately preceding sentenceCollateral Agency Agreement), exercises its rights under this Section 4.05(c), it shall concurrently deliver notice thereof to the Issuer.
(d) All payments, proceeds, dividends, distributions, property, assets, instruments or rights that are received by each Debtor contrary to the provisions of this Section 4.05 shall be received and held in trust for the benefit of the Collateral Agent, for the benefit of the holders of the Secured Obligations, shall be segregated by each Debtor from other funds of such Debtor and shall be forthwith paid over to the Collateral Agent may do as Pledged Equity in the same form as so for received (with any necessary endorsement).
(e) If such Debtor is an issuer of Pledged Equity, such Debtor agrees that (i) it will be bound by the account terms of this Agreement relating to the Pledged Equity issued by it and will comply with such Pledgor terms insofar as such terms are applicable to it and (ii) it will comply with instructions received by it pursuant to the terms of Section 4.05(f) with respect to the Pledged Equity issued by it. In addition, if any such Debtor is a partnership or a limited liability company, such Debtor (i) confirms that none of the terms of any equity interest issued by it provides that such equity interest is a “security” within the meaning of the UCC, (ii) agrees that it will take no action to cause or permit any such equity interest to become a security, (iii) agrees that it will not issue any certificate representing any such equity interest and (iv) agrees that if, notwithstanding the foregoing, any such equity interest shall be or become a security, such Debtor will (and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred Debtor that holds such equity interest hereby instructs such issuing Debtor to) comply with reasonable instructions originated by the Collateral Agent under this Section 3.4(cwithout further consent by such Debtor.
(f) Each Debtor hereby authorizes and instructs each issuer of any Pledged Equity pledged by such Debtor hereunder to (i) comply with any instruction received by it from the Collateral Agent in writing that (x) states that a Priority Lien Debt Default has occurred and is continuing and (y) is otherwise in accordance with Section 11.03 the terms of this Agreement, without any other or further instructions from such Debtor, and each Debtor agrees that each such issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Equity directly to the Collateral Agent for the benefit of the Credit Agreementholders of the Secured Obligations.
Appears in 1 contract
Investment Property. (i) As Each Grantor hereby represents and warrants that, as of the date hereof, it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 17 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) as of the date hereof, it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Stock (as defined in the U.S. Pledge Agreement) under the U.S. Pledge Agreement and Capital Stock of the Foreign Joint Ventures and the Crown Cork Foreign Joint Ventures and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(ii) . If any Pledgor Grantor shall at any time hold or acquire any certificated securities constituting Investment PropertyProperty which relate to a Subsidiary, other than any securities or which, individually or in the aggregate, have a value in excess of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement$5,000,000, such Pledgor Grantor shall promptly promptly, but in no event later than three (A3) Business Days, endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any such securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly promptly, but in no event later than three (3) Business Days, notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xA) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zB) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.05(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors Grantors or any other person Person under any Control Agreement or under applicable law. Each Pledgor Grantor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors Grantors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.05(c).
Appears in 1 contract
Investment Property. (i) As The shares of Pledged Stock pledged by such Grantor hereunder constitute all the issued and outstanding shares of all classes of the date hereof, it Capital Stock of each Issuer owned by such Grantor (1) has no Securities Accounts or Commodity Accounts other than those listed Capital Stock in Schedule 15 annexed to the Perfection Certificate Non-Profit Entities, Foreign Subsidiaries, Domestic Foreign Holding Companies, Insurance Subsidiaries, Joint Ventures and the Collateral Agent has a perfected first priority security interest in such Securities Accounts Non-Wholly-Owned Subsidiaries, Immaterial Subsidiaries and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary Unrestricted Subsidiaries not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same pursuant to the Collateral AgentLoan Documents). The Pledged LLC Interests pledged by the Grantors constitute all the issued and outstanding Capital Stock of each Issuer that is a limited liability company in which any Grantor has any right, accompanied by such instruments of transfer title or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or interest (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Capital Stock in Non-Profit Entities, Foreign Subsidiary Subsidiaries, Domestic Foreign Holding Companies, Insurance Subsidiaries, Joint Ventures and Non-Wholly-Owned Subsidiaries, Immaterial Subsidiaries and Unrestricted Subsidiaries not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause Loan Documents). All the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner shares of the securities. Except as expressly permitted under Pledged Stock and the Credit Agreement, no Pledgor shall hereafter establish Pledged LLC Interests have been duly and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) validly issued and in the case of a Securities Account or Commodities Accountthe Pledged Stock are fully paid and nonassessable. To the knowledge of such Grantor, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable each of the Pledged Notes constitutes the legally valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms, subject to the Collateral Agent effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and general equitable principles (3) such Securities Intermediary whether considered in a proceeding in equity or Commodity Intermediary, as at law). Such Grantor is the case may berecord and beneficial owner of, and such Pledgor shall have duly executed has good and delivered a Control Agreement with respect to such Securities Account or Commodity Accountlegal title to, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled Account. The Collateral Agent agrees with each Pledgor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over any Investment Property to any person other than the Collateral Agent and the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under hereunder, free of any and all Liens of, any other Person, except the Lien created by this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementPermitted Liens.
Appears in 1 contract
Samples: Guarantee and Security Agreement (21st Century Oncology Holdings, Inc.)
Investment Property. (i) As of If the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicable.
(ii) If any Pledgor Company shall at any time hold or acquire any certificated securities constituting Investment PropertyCertificated Securities, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor Company shall promptly (A) forthwith endorse, assign and deliver the same to the Collateral AgentLenders, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory blank as the Lenders may from time to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor time specify while an Event of the Collateral AgentDefault exists. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Company are uncertificated and are issued to such Pledgor the Company or its nominee directly by the issuer thereof, such Pledgor the Company shall promptly immediately notify the Collateral Agent Lenders thereof and, at the Lenders’ request and option, pursuant to an agreement in form and substance satisfactory to the Collateral AgentLenders, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent Lenders as to such securities, without further consent of any Pledgor the Company or such nominee. If any securities, (y) cause whether certificated or uncertificated, or other Investment Property now or hereafter acquired by the Company are held by the Company or its nominee through a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, the Company shall immediately notify the Lenders thereof and, at the Lenders’ request and option, pursuant to an agreement in form and substance satisfactory to the Lenders, either (i) cause such Securities Intermediary or (as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement ) Commodity Intermediary to agree to comply with respect entitlement orders or other instructions from the Lenders to such Securities Account Intermediary as to such securities or Commodity Accountother Investment Property, or (as the case may be) to apply any value distributed on account of any commodity contract as directed by the Lenders to such Commodity Intermediary, in each case without further consent of the Company or such nominee, or (ii) in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and financial assets or other Investment Property that are proceeds held through a Securities Intermediary, arrange for the Lenders to become the entitlement holder with respect to such Investment Property, with the Company being permitted, only with the consent of the pledged Lenders, to exercise rights to withdraw or otherwise deal with such Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountProperty. The Collateral Agent Lenders agrees with each Pledgor the Company that the Collateral Agent Lenders shall not give any Entitlement Orders such entitlement orders or instructions or directions to any issuer of uncertificated securitiessuch issuer, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such Pledgorthe Company, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment exists (or withdrawal rights would exist after giving effect to any such investment and withdrawal rights would occuror withdrawal). No Pledgor The provisions of this paragraph shall grant Control over any Investment Property not apply to any person other than financial assets credited to a securities account for which the Collateral Agent and Lenders is the securities intermediary at which such account is maintained.
(iii) Subject to Section 11.1(ii), as between the Collateral Agent and the Pledgors, the Pledgors shall bear the investment risk with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, Each Grantor hereby represents and warrants that it (1) has no neither opened nor maintains any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to 17 of the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, Control (other than such Securities Accounts or Commodity Accounts (x) in which the average monthly balance on deposit in such account is less than $25,000 individually or $250,000 in the aggregate for all such Securities Accounts or Commodity Accounts or (y) in which the granting of a security interest and entering into a Control Agreement with respect to such Securities Accounts or Commodity Accounts is prohibited by Requirements of Law) and (2) it does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities Stock under the Pledge Agreement and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to 17 of the Perfection Certificate, as applicable.
(ii) If Subject to the limitation on the pledge of Equity Interests of any Pledgor Non-U.S. Subsidiary to 65% of the issued and outstanding shares of voting stock of such Non-U.S. Subsidiary in accordance with Section 1 of the Pledge Agreement, if any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, other such Grantor shall promptly, but in no event later than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreementthree (3) Business Days, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor Grantor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, Property are uncertificated and are issued to such Pledgor Grantor or its nominee directly by the issuer thereof, such Pledgor Grantor shall promptly promptly, but in no event later than three (3) Business Days, notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (xa) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor Grantor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (zb) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor Grantor shall have given the Collateral Agent 5 Business Days' 30 days’ prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 one (1) Business Days Day of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountSecurities Account or Commodity Account subject to a Control Agreement in favor of the Collateral Agent. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. No Pledgor Grantor shall grant Control control over any Investment Property to any person Person other than the Collateral Agent and the securities intermediary at which such account is maintainedAgent.
(iii) Subject to Section 11.1(ii), as As between the Collateral Agent and the PledgorsGrantors, the Pledgors Grantors shall bear the investment risk with respect to the Investment Property and Pledged SecuritiesProperty, and the risk of loss of, damage to, to or the destruction of the Investment Property and Pledged SecuritiesProperty, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, a Commodity Intermediary, any Pledgor Grantor or any other personPerson; provided, however, that nothing contained in this Section 3.4(c3.05(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors Grantors or any other person Person under any Control Agreement or under applicable law. Each Pledgor Grantor shall promptly pay all Claims Charges and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor Grantor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor Grantor and the Pledgors Grantors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreement3.05(c).
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the Administrative Agent for the benefit of the Secured Parties that:
(i) As Schedule 9(e) attached hereto contains a true and complete description of (x) the name and address of each securities intermediary with which such Grantor maintains a securities account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the Administrative Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Administrative Agent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Administrative Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 Business Days Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of actual receipt thereof, deposit any cash or Investment Property and any new (a) certificated securities, instrumentswhich certificates shall have been delivered to the Administrative Agent together with duly executed undated stock powers endorsed in blank pertaining thereto, documents or other property by reason (b) security entitlements credited to one or more securities accounts as to each of ownership which the Administrative Agent has received (1) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (2) a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) full force and effect and as to which the Administrative Agent has not received by it into a Controlled Accountany notice of termination. The Collateral Agent agrees with each Pledgor that Without limiting the Collateral Agent generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 9(e) attached hereto except in each case upon giving not less than thirty (30) days’ prior written notice to the Collateral Administrative Agent and taking or causing to be taken at such Grantor’s expense all such Perfection Action, including the securities intermediary at which delivery of such account is maintainedPerfection Documents, as may be reasonably requested by the Administrative Agent to perfect or protect, or maintain the perfection and priority of, the Lien of the Administrative Agent for the benefit of the Secured Parties in Collateral contemplated hereunder.
(iii) Subject All dividends and other distributions with respect to Section 11.1(iiany of the Investment Property shall be subject to the security interest conferred hereunder, provided, however, that cash dividends paid to a Grantor as record owner of the Investment Property may be disbursed to and retained by such Grantor so long as no Default or Event of Default shall have occurred and be continuing, free from any Lien hereunder.
(iv) So long as no Default or Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Default or Event of Default, at the option of the Administrative Agent, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the Administrative Agent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Administrative Agent or its nominee or agent for the benefit of the Secured Parties and/or exercise such voting or consensual rights and powers as between appertain to ownership of such Collateral, and to that end each Grantor hereby appoints the Collateral Administrative Agent as its proxy, with full power of substitution, to vote and exercise all other rights as a shareholder with respect to such Investment Property upon the Pledgorsoccurrence and during the continuance of any Default or Event of Default, which proxy is coupled with an interest and is irrevocable until the Pledgors Facility Termination Date, and each Grantor hereby agrees to provide such further proxies as the Administrative Agent may request; provided, however, that the Administrative Agent in its discretion may from time to time refrain from exercising, and shall bear not be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the investment risk occurrence and during the continuance of any Default or Event of Default, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) above shall cease and shall thereupon be vested in the Administrative Agent for the benefit of the Secured Parties, and each Grantor shall, or shall cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Administrative Agent (together, and if the risk Administrative Agent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction option of the Investment Property and Pledged SecuritiesAdministrative Agent, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit AgreementSecured Obligations.
Appears in 1 contract
Investment Property. With respect to its Investment Property whether now existing or hereafter created or acquired and wheresoever located, each Grantor represents, warrants and covenants to the General Collateral Agent for the benefit of the General Secured Parties that:
(i) As Schedule 3 attached hereto contains a true and complete description of (x) the name and address of each securities intermediary and each commodity intermediary with which such Grantor maintains a securities account or commodity account in which Investment Property is or may at any time be credited or maintained, and (y) all other Investment Property of such Grantor other than interests in Subsidiaries in which such Grantor has granted a Lien to the General Collateral Agent for the benefit of the date hereof, it (1) has no Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed General Secured Parties pursuant to the Perfection Certificate and the Collateral Agent has a perfected first priority security interest in such Securities Accounts and Commodity Accounts by Control, (2) does not hold, own or have any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to the Perfection Certificate and (3) has entered into a duly authorized, executed and delivered Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, as applicablePledge Agreement.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Except with the express prior written consent of the Designated Collateral Subagent in each instance, all Investment Property, Property other than any securities of interests in Subsidiaries in which such Grantor has granted a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same Lien to the Designated Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor shall hereafter establish and maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity Contract, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust Subagent for the benefit of the General Secured Parties pursuant to a Pledge Agreement shall be maintained at all times in the form of (A) certificated securities, which certificates shall have been delivered to the General Collateral Agent and within 5 Business Days together with duly executed undated stock powers endorsed in blank pertaining thereto, or (B) security entitlements credited to one or more securities accounts as to each of actual receipt thereof, deposit any cash or Investment Property and any new securities, instruments, documents or other property by reason of ownership which the Designated Collateral Subagent has received (x) copies of the Investment Property account agreement between the applicable securities intermediary and the Grantor and the most recent statement of account pertaining to such securities account (other than payments each certified to be true and correct by an officer of the Grantor) and (y) a kind described Qualifying Control Agreement from the applicable securities intermediary which remains in Section 7.4 hereof) received by it into a Controlled Account. The full force and effect and as to which the General Collateral Agent agrees with has not received any notice of termination, or (C) commodity contracts credited to one or more commodity accounts as to each Pledgor that of which the Designated Collateral Subagent has received (x) copies of the account agreement between the applicable commodity intermediary and the Grantor and the most recent statement of account pertaining to such commodity account (each certified to be true and correct by an officer of the Grantor) and (y) a Qualifying Control Agreement from the applicable commodity intermediary which remains in full force and effect and as to which the General Collateral Agent has not received any notice of termination. Without limiting the generality of the foregoing, no Grantor shall not give any Entitlement Orders cause, suffer or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment or withdrawal rights by such Pledgor, unless an Event of Default has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights would occur. No Pledgor shall grant Control over permit any Investment Property to be credited to or maintained in any person other securities account not listed on Schedule 3 attached hereto except in each case upon giving not less than thirty (30) days' prior written notice to the Designated Collateral Subagent and taking or causing to be taken at such Grantor's expense all such Perfection Action, including the delivery of such Perfection Documents, as may be reasonably requested by the General Collateral Agent or the Designated Collateral Subagent to perfect or protect, or maintain the perfection and priority of, the securities intermediary at which such account is maintainedLien of the General Collateral Agent for the benefit of the General Secured Parties in Collateral contemplated hereunder.
(iii) Subject All dividends and other distributions with respect to Section 11.1(iiany of the Investment Property shall be subject to the security interest conferred hereunder.
(iv) So long as no Event of Default shall have occurred and be continuing, the registration of Investment Property in the name of a Grantor as record and beneficial owner shall not be changed and such Grantor shall be entitled to exercise all voting and other rights and powers pertaining to Investment Property for all purposes not inconsistent with the terms hereof or of any Qualifying Control Agreement relating thereto.
(v) Upon the occurrence and during the continuance of any Event of Default, at the option of the Designated Collateral Subagent or written direction of the Required Enforcement General Secured Parties, all rights of the Grantors to exercise the voting or consensual rights and powers which it is authorized to exercise pursuant to clause (iv) immediately above shall cease and the General Collateral Agent or the Designated Collateral Subagent may thereupon (but shall not be obligated to), at its request, cause such Collateral to be registered in the name of the Designated Collateral Subagent or its nominee or agent for the benefit of the General Secured Parties and/or exercise such voting or consensual rights and powers as between appertain to ownership of such Collateral, and to that end each Grantor hereby appoints each of the General Collateral Agent and the PledgorsDesignated Collateral Subagent as its proxy, with full power of substitution, to vote and exercise all other rights as a holder of such Investment Property upon the Pledgors occurrence and during the continuance of any Event of Default, which proxy is coupled with an interest and is irrevocable until the Security Termination Date, and each Grantor hereby agrees to provide such further proxies as the General Collateral Agent or the Designated Collateral Subagent may request; provided, however, that each of the General Collateral Agent and the Designated Collateral Subagent in its discretion may from time to time refrain from exercising, and shall bear not be obligated to exercise, any such voting or consensual rights or such proxy.
(vi) Upon the investment risk occurrence and during the continuance of any Event of Default, all rights of the Grantors to receive and retain cash dividends and other distributions upon or in respect to Investment Property pursuant to clause (iii) above shall cease and shall thereupon be vested in the General Collateral Agent for the benefit of the General Secured Parties, and each Grantor shall, or shall cause, all such cash dividends and other distributions with respect to the Investment Property and Pledged Securitiesto be promptly delivered to the Designated Collateral Subagent (together, and if the risk Designated Collateral Subagent shall request, with any documents related thereto) to be held, released or disposed of loss ofby it hereunder or, damage to, or at the destruction written direction of the Investment Property and Pledged SecuritiesRequired Enforcement General Secured Parties, whether in the possession of, or maintained as a security entitlement or deposit by, or subject to be applied to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature with respect to the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) Secured Obligations in accordance with Section 11.03 of the Credit Intercreditor Agreement.
Appears in 1 contract
Investment Property. (i) As of the date hereof, it no Grantor (1) has no any Securities Accounts or Commodity Accounts other than those listed in Schedule 15 annexed to the Perfection Certificate and each Grantor covenants and agrees that it shall ensure that the Collateral Agent has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts which security interest is perfected by ControlControl promptly but in any event no later than ten Business Days from the date of the written request of the Collateral Agent, (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities other than those constituting Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to 7 hereof. Promptly but in any event no later than ten Business Days from the Perfection Certificate and (3) has entered into a date of the written request of the Collateral Agent, each Grantor shall duly authorized, executed and delivered a Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate, if any, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign in each case in form and deliver the same substance acceptable to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor No Grantor shall hereafter establish and or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract unless (1A) the applicable Pledgor Grantor shall have given the Collateral Agent 5 30 Business Days' Days prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractIntermediary, (2B) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3C) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed and delivered a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c). Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent and within 5 3 Business Days of actual receipt thereof, deposit any and all cash or and Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to the Collateral Agent's Control. The Collateral Agent agrees with each Pledgor Grantor that the Collateral Agent shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default under any New Note has occurred and is continuing, or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section 3.04(c) shall not apply to any Financial Assets credited to a Securities Account for which the Collateral Agent is the Securities Intermediary. No Pledgor Grantor shall grant Control over any Investment Property to any person Person other than the Collateral Agent.
(ii) If any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property other than the Investment Property held on the date of this Agreement, such Grantor shall promptly (1) endorse, assign and deliver the same to the Collateral Agent, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance satisfactory to the Collateral Agent and or (2) deliver such securities into a Securities Account with respect to which a Securities Account Control Agreement is in effect in favor of the securities intermediary at which such account is maintainedCollateral Agent.
(iii) Subject If any securities now or hereafter acquired by any Grantor constituting Investment Property are uncertificated and are issued to Section 11.1(ii)such Grantor or its nominee directly by the issuer thereof, as between such Grantor shall promptly notify the Collateral Agent thereof and the Pledgors, the Pledgors shall bear the investment risk with respect pursuant to the Investment Property an agreement in form and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether in the possession of, or maintained as a security entitlement or deposit by, or subject substance reasonably satisfactory to the control of, the Collateral Agent, either (1) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Grantor or such nominee, (2) cause a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature Security Entitlement with respect to the Investment Property and Pledged such uncertificated security to be held in a Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail Account with respect to make such payment contemplated in the immediately preceding sentence, which the Collateral Agent may do so has Control or (3) arrange for the account of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by to become the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 registered owner of the Credit Agreementsuch securities.
Appears in 1 contract
Samples: Security Agreement (Volcon, Inc.)
Investment Property. (i) As of the date hereof, it no Grantor (1) has no Securities Accounts or Commodity Accounts any Investment Property other than those that listed in Schedule 15 annexed to the Perfection Certificate 6(b) hereof and the Collateral Agent Lender has a perfected first priority First Priority security interest in such Securities Accounts and Commodity Accounts by ControlInvestment Property (except to the extent such Investment Property constitutes Excluded Equity), (2) does not holdholds, own owns or have has any interest in any certificated securities or uncertificated securities securities, other than those constituting Excluded Equity or Pledged Securities and those maintained in Securities Accounts or Commodity Accounts listed in Schedule 15 annexed to 6(b). As of the Perfection Certificate and (3) date hereof, each Grantor has entered into a duly authorized, executed and delivered a Securities Account Control Agreement or a Commodity Account Control Agreement with respect to each Securities Account or Commodity Account listed in Schedule 15 annexed to the Perfection Certificate6(b) hereof, if any, as applicable.
(ii) If any Pledgor shall at any time hold or acquire any certificated securities constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, such Pledgor shall promptly (A) endorse, assign and deliver the same to the Collateral Agent, accompanied by such instruments of transfer or assignment duly executed in blank, all in form and substance reasonably satisfactory to the Collateral Agent or (B) deliver such securities into a Securities Account with respect to which a Control Agreement is in effect in favor of the Collateral Agent. If any securities now or hereafter acquired by any Pledgor constituting Investment Property, other than any securities of a Foreign Subsidiary not required to be pledged hereunder or under the Credit Agreement, are uncertificated and are issued to such Pledgor or its nominee directly by the issuer thereof, such Pledgor shall promptly notify the Collateral Agent thereof and pursuant to an agreement in form and substance satisfactory to the Collateral Agent, either (x) cause the issuer to agree to comply with instructions from the Collateral Agent as to such securities, without further consent of any Pledgor or such nominee, (y) cause a Security Entitlement with respect to such uncertificated security to be held in a Securities Account with respect to which the Collateral Agent has Control or (z) arrange for the Collateral Agent to become the registered owner of the securities. Except as expressly permitted under the Credit Agreement, no Pledgor Grantor shall hereafter establish and or maintain any Securities Account or Commodity Account with any Securities Intermediary or Commodity Intermediary or enter into any Commodity Contract Intermediary, unless (1) the applicable Pledgor shall have given the Collateral Agent 5 Business Days' prior written notice of its intention to establish such new Securities Account or Commodity Account with such Securities Intermediary or Commodity Intermediary or to enter into such Commodity ContractLender agrees in writing that it is not required, (2) in the case of a Securities Account or Commodities Account, such Securities Intermediary or Commodity Intermediary shall be reasonably acceptable to the Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary, as the case may be, and such Pledgor Grantor shall have duly executed execute and delivered deliver a Control Agreement with respect to such Securities Account or Commodity Account, as the case may be, or in be within 30 days after the case of a Commodity Contract, shall have caused such Commodity Contract to be credited to a Commodity Account satisfying the requirements of this Section 3.4(c)establishment thereof. Each Pledgor Grantor shall accept any cash and Investment Property that are proceeds of the pledged Investment Property in trust for the benefit of the Collateral Agent Lender and within 5 five (5) Business Days of actual receipt thereof, deposit any and all cash or and Investment Property and any new securities, instruments, documents or other property by reason of ownership of the Investment Property (other than payments of a kind described in Section 7.4 hereof) received by it into a Controlled AccountDeposit Account or Securities Account subject to Lender’s Control. The Collateral Agent Lender agrees with each Pledgor Grantor that the Collateral Agent Lender shall not give any Entitlement Orders or instructions or directions to any issuer of uncertificated securities, Securities Intermediary or Commodity Intermediary, and shall not withhold its consent to the exercise of any investment withdrawal or withdrawal dealing rights by such PledgorGrantor, unless an Event of Default has occurred and is continuing, continuing or, in the case of withholding consent to investment or withdrawal rights after giving effect to any such investment and withdrawal rights rights, would occur. The provisions of this Section shall not apply to any Financial Assets credited to a Securities Account for which Lender is the Securities Intermediary. No Pledgor Grantor shall grant Control over any Investment Property to any person Person other than Lender.
(ii) If any Grantor shall at any time hold or acquire any certificated securities constituting Investment Property, such Grantor shall to the Collateral Agent extent such Investment Property is not Excluded Property promptly (1) endorse, assign and deliver the same to Lender, accompanied by such undated instruments of transfer or assignment duly executed in blank, all in form and substance satisfactory to Lender or (2) deliver such securities intermediary at into a Securities Account with respect to which such account a Securities Account Control Agreement is maintainedin effect in favor of Lender.
(iii) Subject If any securities now or hereafter acquired by any Grantor constituting Investment Property are uncertificated and are issued to Section 11.1(ii)such Grantor or its nominee directly by the issuer thereof, such Grantor shall to the extent such Investment Property is not Excluded Property promptly notify Lender thereof and pursuant to an agreement in form and substance reasonably satisfactory to Lender, either (1) cause the issuer to agree to comply with instructions from Lender as between the Collateral Agent and the Pledgorsto such securities, the Pledgors shall bear the investment risk without further consent of any Grantor or such nominee, (2) cause a Security Entitlement with respect to the Investment Property and Pledged Securities, and the risk of loss of, damage to, or the destruction of the Investment Property and Pledged Securities, whether such uncertificated security to be held in the possession of, or maintained as a security entitlement or deposit by, or subject to the control of, the Collateral Agent, a Securities Intermediary, Commodity Intermediary, any Pledgor or any other person; provided, however, that nothing contained in this Section 3.4(c) shall release or relieve any Securities Intermediary or Commodity Intermediary of its duties and obligations to the Pledgors or any other person under any Control Agreement or under applicable law. Each Pledgor shall promptly pay all Claims and fees of whatever kind or nature Account with respect to which Lender has Control or (3) arrange for Lender to become the Investment Property and Pledged Securities pledged by it under this Agreement except as otherwise expressly permitted under the Credit Agreement. In the event any Pledgor shall fail to make such payment contemplated in the immediately preceding sentence, the Collateral Agent may do so for the account registered owner of such Pledgor and the Pledgors shall promptly reimburse and indemnify the Collateral Agent from all costs and expenses incurred by the Collateral Agent under this Section 3.4(c) in accordance with Section 11.03 of the Credit Agreementsecurities.
Appears in 1 contract
