Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower now or hereafter has rights. Following the occurrence of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 6 contracts
Samples: Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc), Loan and Security Agreement (Ashford Hospitality Trust Inc)
Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed), Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether Collateral in which Borrower now or hereafter acquiredhas rights, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all of the Borrower’s rights, whether now owned or hereafter acquired, in the Collateral. The inclusion of Proceeds in the definition of “Collateral” does not authorize Borrower to sell, dispose of or otherwise use the Collateral in which Borrower now or hereafter has rightsany manner not specifically authorized hereby. Following the occurrence of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial securities intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial securities intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
(b) Borrower hereby authorizes Lender to file any financing statements, and amendments to financing statements, in any jurisdictions and with any filing offices as Lender may determine, in its sole discretion, are necessary or advisable to perfect the security interest granted to Lender hereunder. Such financing statements may describe the collateral in the same manner as described in this Agreement or may contain an indication or description of collateral that describes such property in any other manner Lender so chooses, including, without limitation, describing such property as “all assets, whether now owned or hereafter acquired” or “all personal property, whether now owned or hereafter acquired”.
Appears in 5 contracts
Samples: Loan and Security Agreement (Morgans Hotel Group Co.), Loan and Security Agreement (Morgans Hotel Group Co.), Loan and Security Agreement (Morgans Hotel Group Co.)
Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Each Borrower hereby pledges, assigns and grants to Collateral Trustee a security interest in (i) pledgeswith respect to any Subsidiary that is not an Excluded Foreign Subsidiary, transfersall the Equity Interests in which such Borrower has any interest, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under including the Collateral, whether now or hereafter acquiredShares, and (ii) grants with respect to Lender each Subsidiary that is a continuing first priority lien on First-Tier Foreign Subsidiary, 65% of the voting Equity Interests of such First-Tier Foreign Subsidiary and 100% of the non-voting Equity Interests of such First-Tier Foreign Subsidiary, in each case, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the performance of the Obligations. For the avoidance of doubt, no pledge shall be required with respect to (i) any Equity Interests in any Excluded Foreign Subsidiary other than a First-Tier Foreign Subsidiary and (ii) any asset directly or indirectly owned by any Excluded Foreign Subsidiary. On the Closing Date or as required pursuant to Section 6.10, the certificate or certificates for such Equity Interests, to the extent certificated, will be delivered to Collateral Trustee, accompanied by a stock power or other appropriate instrument of assignment duly executed in blank. To the extent required by the terms and conditions governing the Equity Interests in which a Borrower has an interest, such Borrower shall cause the books of each Person whose Equity Interests are part of the Collateral and any transfer agent to reflect the pledge of the Equity Interests. Upon the occurrence and during the continuance of an Event of Default hereunder, Collateral Trustee may effect the transfer of any securities included in the Collateral (including but not limited to the Equity Interests) into the name of Collateral Trustee and cause new certificates representing such securities to be issued in the name of Collateral Trustee or its transferee. Each Borrower will execute and deliver such documents, and take or cause to be taken such actions, as Administrative Agent may reasonably request to perfect or continue the perfection of Collateral Trustee’s security interest in the Equity Interests. Unless an Event of Default shall have occurred and be continuing, each Borrower shall be entitled to exercise any voting rights with respect to the Equity Interests in which it has an interest and to all Collateral give consents, waivers and ratifications in respect thereof; provided, that no such notice shall be required if a Borrower has commenced an Insolvency Proceeding and, in any event, no vote shall be cast or consent, waiver or ratification given or action taken which Borrower now would be inconsistent with any of the terms of this Agreement or hereafter has rightswhich would constitute or create any violation of any of such terms. Following All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 3 contracts
Samples: Loan and Security Agreement (Metacrine, Inc.), Loan and Security Agreement (Metacrine, Inc.), Loan and Security Agreement (Metacrine, Inc.)
Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §Section 362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether Collateral in which Borrower now or hereafter acquiredhas rights, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower now or hereafter has rights. Following the occurrence of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “"DTC”") or other clearing corporation or held otherwise; and (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s 's security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s 's security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 2 contracts
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.), Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Pledge of Collateral. (a) As Each Borrower hereby pledges, assigns and grants to Agent a security interest in all the Equity Interests in which such Borrower has any interest, including the Shares, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the due and punctual payment and performance of all of the Debt Obligations; provided that Borrower shall not be required to grant and pledge to Agent a perfected security interest in more than sixty-five percent (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a65%) of the Bankruptcy CodeShares of any Foreign Subsidiary in existence as of the Closing Date. On the Closing Date, 11 U.S.C. §362(a))or as required pursuant to Section 6.11, whether allowed the certificate or allowable as claimscertificates for such Equity Interests, to the extent certificated, will be delivered to Agent, accompanied by a stock power or other appropriate instrument of assignment duly executed in blank. To the extent required by the terms and conditions governing the Equity Interests in which a Borrower has an interest, such Borrower shall cause the books of each Person whose Equity Interests are part of the Collateral and any transfer agent to reflect the pledge of the Equity Interests. Upon the occurrence and during the continuance of an Event of Default hereunder, Agent may effect the transfer of any securities included in the Collateral (including but not limited to the Equity Interests) into the name of Agent and cause new certificates representing such securities to be issued in the name of Agent or its transferee. Each Borrower will execute and deliver such documents, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower take or cause to be observed taken such actions, as Agent may reasonably request to perfect or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all continue the perfection of BorrowerAgent’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in the Equity Interests. Unless an Event of Default shall have occurred and be continuing, each Borrower shall be entitled to exercise any voting rights with respect to the Equity Interests in which it has an interest and to all Collateral give consents, waivers and ratifications in respect thereof, and provided further, that no vote shall be cast or consent, waiver or ratification given or action taken which Borrower now would be inconsistent with any of the terms of this Agreement or hereafter has rightswhich would constitute or create any violation of any of such terms. Following All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default. Without limiting the foregoing, Lender is hereby authorized: (i) Agent reserves the right to transfer take such steps as Agent reasonably determines to be necessary to perfect, and maintain the account of Lender or its designee any Pledged Interests whether in the possession perfection of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of LenderAgent’s security interest in such Collateral. In addition, Borrower agrees that in the event that Shares of any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition Foreign Subsidiary to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral extent pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateralhereunder.
Appears in 1 contract
Pledge of Collateral. (a) As collateral security for the prompt payment in full when due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand acceleration or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy CodeNote, 11 U.S.C. §362(a)), whether allowed or allowable as claims, including all interest thereon and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part liabilities of Borrower to be observed arising thereunder or performedunder this Agreement (collectively, the "Secured Obligations"), Borrower hereby (i) pledges, transferscollaterally assigns and hypothecates to Lender, grantsand hereby grants to Lender, hypothecates a first priority lien on and assigns to Lender security interest in, all of Borrower’s 's right, title and interest in, to and under the Collateralfollowing, whether now owned by Borrower or hereafter acquired, acquired and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower whether now existing or hereafter has rights. Following coming into existence and wherever located (all being collectively referred to herein as "Collateral"):
(a) all bonus payments payable by Lender or any of its affiliates to Borrower (collectively "Bonus Payments");
(b) all proceeds from the occurrence exercise of an Event stock options granted by Lender or any affiliate of DefaultLender to Borrower, Lender is hereby authorized: including without limitation the stock options granted to Borrower under and pursuant to (i) that certain Non-Qualified Stock Option Agreement dated October 18, 1999, by and between Lender and Borrower, as amended by that certain Amendment to transfer Non-Qualified Stock Option Agreement (1999 Stock Option and Incentive Plan) dated Xxxxx 0, 0000, (xx) that certain Non-Qualified Stock Option Agreement dated October 18, 1999, by and between Lender and Borrower, as amended by that certain Amendment to the account of Lender or its designee any Pledged Interests whether in the possession ofNon-Qualified Stock Option Agreement (1995 Stock Option and Incentive Plan) dated March 8, or registered in the name of2000, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) that certain Non-Qualified Stock Option Agreement dated December 7, 2000 (collectively, "Lender Stock Options"), including proceeds, net of applicable taxes and the exercise price therefor, from the sale of shares underlying such Lender Stock Options (collectively, "Stock Option Proceeds");
(c) any severance compensation payable by Lender or any of its affiliates to exchange certificates representing Borrower pursuant to an employment agreement or evidencing the Pledged Interests for certificates of smaller or larger denominations. To otherwise ("Severance Payments"); and
(d) to the extent that not included in the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest thereinforegoing, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interestsproceeds, together with duly executed transfer powers or other appropriate endorsements. With respect products, revenues, distributions, issues, profits, royalties, income, benefits, accessions, additions, substitutions and replacements of and to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateralforegoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Teletech Holdings Inc)
Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §Section 362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether Collateral in which Borrower now or hereafter acquiredhas rights, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower now or hereafter has rights. Following the occurrence of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “"DTC”") or other clearing corporation or held otherwise; and (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s 's security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s 's security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.in
Appears in 1 contract
Samples: Loan and Security Agreement (CNL Hotels & Resorts, Inc.)
Pledge of Collateral. (a) As Subject to the Intercreditor Agreement, eachEach Obligor hereby pledges, assigns and grants to Agent, for the benefit of the Holders, a security interest in all the Equity Interests in which such Obligor has any interest, including the Shares, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the due and punctual payment and performance of all the Obligations. To the extent required by the terms and conditions governing the Equity Interests in which an Obligor has an interest, such Obligor shall cause the books of each Person whose Equity Interests are part of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, Collateral and any transfer agent to reflect the payment of amounts that would become due but for the operation pledge of the automatic stay under Section 362(a) of Equity Interests. Subject to the Bankruptcy CodeIntercreditor Agreement, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower now or hereafter has rights. Following uponUpon the occurrence and during the continuance of an Event of DefaultDefault hereunder, Lender is hereby authorized: Agent may effect the transfer of any securities included in the Collateral (i) to transfer including but not limited to the account Equity Interests) into the name of Lender or its designee any Pledged Interests whether in the possession of, or registered Agent and cause new certificates representing such securities to be issued in the name of, The Depository Trust Company (the “DTC”) of Agent or other clearing corporation or held otherwise; (ii) to transfer its transferee. Subject to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any Intercreditor Agreement, eachEach Obligor will execute and deliver such Federal Reserve Bank; documents, and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver take or cause to be delivered taken such actions, as Agent may reasonably request to Lender all certificates perfect or instruments evidencing continue the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession perfection of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of LenderAgent’s security interest in the Equity Interests. Unless an Event of Default shall have occurred and be continuing and the Obligors shall have received written notice from Agent of its intention to suspend such Collateralrights, the Obligors shall be entitled to exercise any voting rights with respect to the Equity Interests in which it has an interest and to give consents, waivers and ratifications in respect thereof; provided that: no such notice shall be required if any Obligor has commenced an Insolvency Proceeding and, in any event, no vote shall be cast or consent, waiver or ratification given or action taken which would be inconsistent with any of the terms of this Agreement or which would constitute or create any violation of any of such terms. In additionSubject to the Intercreditor Agreement, Borrower agrees allAll such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default and following receipt by the Obligors of written notice from Agent of Agent’s intention to suspend such rights (unless an Insolvency Proceeding has been commenced), further provided that all such rights to vote and give consents, waivers and ratifications shall revive in the event that any Collateral the applicable Event of Default is held by Lender in a fiduciary capacity for cured or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateralwaived.
Appears in 1 contract
Samples: Note Purchase and Security Agreement (Metromile, Inc.)
Pledge of Collateral. (a) As Pledgor hereby (i) pledges and assigns to Secured Party, for the benefit of the Lender Parties, all of its right, title and interest in and to the Pledged Collateral, whether now or hereafter existing and (ii) grants to Secured Party, for the benefit of the Lender Parties, a continuing first priority security interest in, assignment of and lien upon the Pledged Collateral, whether now or hereafter existing and the proceeds thereof, as continuing collateral security for the due and punctual payment and performance for (1) the payment by Pledgor, when due and payable, of all amounts from time to time owing by Pledgor under or in respect of the Canadian Guaranty Agreement or any other Loan Document, and the due performance by Pledgor of all of its other respective obligations under or in respect of the Debt Canadian Guaranty Agreement or any other Loan Document, in each case whether now existing or hereafter incurred or arising, (2) all other sums payable by the Pledgor under the other Loan Documents, whether at stated maturityfor principal, by required prepaymentinterest, declaration, acceleration, demand fees or otherwise, whether now existing or hereafter incurred or arising, and (3) all renewals, extensions, amendments, modifications, supplements, or restatements of or substitutions for any of the foregoing described in subsections (a)(1) through (a)(2) (all such obligations, indebtedness and liabilities described in (a)(1) through (a)(3) collectively, the “Secured Obligations”). As used herein, the term “Secured Obligations” refers to all present and future indebtedness, obligations and liabilities of whatever type which are described above in this section, including any interest which accrues after the commencement of any case, proceeding, or other action relating to the bankruptcy, insolvency, or reorganization of Pledgor or any Issuer. Notwithstanding anything in this Agreement to the contrary, the Secured Obligations shall be limited to a maximum aggregate amount equal to the largest amount that would render this Agreement and/or the security interest granted hereunder subject to avoidance as a fraudulent transfer or conveyance under Applicable Law.
(b) The Pledgor shall (i) deliver to Secured Party all certificates or instruments evidencing or representing the Pledged Collateral, and (ii) deliver to Secured Party all certificates or instruments evidencing or representing any additional Pledged Collateral within five (5) Business Days after the Pledgor’s acquisition of such Pledged Collateral. Until such time as Pledgor has delivered all certificates or instruments evidencing or representing the Pledged Collateral to Secured Party, the Pledgor shall hold such certificates and/or instruments as bailee and agent for the Secured Party. Each such certificate and instrument shall be registered in the name of the Pledgor, duly endorsed in blank or accompanied by an equity power duly executed by the Pledgor in blank, in form and substance reasonably satisfactory to Secured Party, with any and all documentary tax stamps and other documents necessary to cause Secured Party to have a good, valid and perfected continuing first priority pledge of, Lien on and security interest in the Pledged Collateral, free and clear of any other mortgage, pledge, Lien, security interest, hypothecation, assignment, charge, right, encumbrance or transfer or other restriction (individually, an “Encumbrance” and collectively, “Encumbrances”), including, without limitation, any necessary notations in the payment of amounts that would become due but for the operation record books of the automatic stay under Section 362(a) of Pledgor or the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral entity in which Borrower now such equity or hereafter has rightsownership interests evidence an ownership stake. Following At any time following the occurrence and during the continuation of an Event of Default, Lender is hereby authorized: (i) to transfer to the account any or all of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates Collateral, at the option of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee Secured Party exercised in a manner sufficient to perfect Lender’s security interest thereinaccordance with Section 3(d) hereof, Borrower shall promptly deliver or cause to may be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank Secured Party or nominee thereforof its nominee, and the Pledgor hereby covenants that, upon demand therefor by Secured Party, the Pledgor shall, or shall cause the Issuer in which such equity or ownership interests evidence an ownership stake to, effect such registration.
(c) Secured Party shall have the right, but not the obligation, to pay any taxes or levies on or relating to the Pledged Collateral represented by entries on and any costs to preserve the books of any financial intermediaryPledged Collateral, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held which payments shall be made for the account of Lenderthe Pledgor and shall constitute a part of the Obligations.
(d) Within five (5) Business Days of any request by the Secured Party, the Pledgor, at Pledgor’s own cost and expense, will duly execute and deliver to Secured Party such financing statements, continuation statements, assignments, certificates and/or such other agreements, assignments, instructions or at the discretion of Lender and subject documents as Secured Party may reasonably request relating to the written instructions of LenderPledged Collateral or otherwise to enable Secured Party to create, deliver any such Collateral maintain and perfect or from time to Lender and/or cause any such Collateral time renew the security interests granted hereby or to be put in bearer formcreate, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s maintain and perfect a security interest in such Collateralany additional Pledged Collateral hereafter acquired by Pledgor or in any and all additions to and/or replacements, products and proceeds of any of the foregoing, all in form and substance reasonably satisfactory to Secured Party. In additionPledgor will pay all reasonable fees, Borrower agrees costs and expenses associated therewith, including without limitation, the cost of filing any of the foregoing in all public offices or other locations wherever Secured Party deems filing to be necessary or desirable. Pledgor irrevocably grants Secured Party the right, at Secured Party’s option, to file any or all of the foregoing pursuant to the PPSA or STA and otherwise without Pledgor’s signature, and Pledgor irrevocably appoints Secured Party as Pledgor’s attorney in fact to execute any of the foregoing in Pledgor’s name and to perform all other acts that in Secured Party deems appropriate to perfect and continue the event that any Collateral is held security interests conferred by Lender in a fiduciary capacity for this Agreement or on behalf of Borrower as otherwise to effect fully the beneficial owner thereofpurposes, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants terms and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to , the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Loan Agreement and those the other Loan Documents.
(e) No injury to, or loss or destruction of, the Pledged Collateral or any Material Adverse Effect shall relieve Pledgor of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the CollateralSecured Obligations.
Appears in 1 contract
Samples: Canadian Pledge Agreement (Mad Catz Interactive Inc)
Pledge of Collateral. (a) As Pledgor hereby pledges to Bank and grants to Bank a security interest in the Collateral as security for the due and punctual prompt payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the CollateralIndebtedness, whether now existing or hereafter acquiredarising.
(b) Pledgor authorizes Bank to file such financing statements, and (ii) grants take such other actions as Bank determines from time to Lender a continuing first priority lien on and time may be necessary or appropriate to perfect and/or maintain the security interest in and to all Collateral in which Borrower now or hereafter has rights. Following the occurrence of an Event of Defaultgranted hereunder.
(c) If applicable, Lender is hereby authorized: (i) to transfer prior to the account maturity (if any) of Lender any Collateral held by Bank pursuant hereto, Pledgor may pledge a substitute security or instrument similar in form, quality, value and substance to the original Collateral (and which is satisfactory and acceptable to Bank in its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company sole discretion) (the “DTCSubstitute Collateral”) or other clearing corporation or held otherwise; (ii) to transfer to in which the account proceeds of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates Collateral can be reinvested on maturity. Upon maturity of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee thereforaccordance with its terms, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any the Collateral is held otherwise becomes payable during the term of this Agreement, such maturing Collateral may be presented for payment, exchange, or otherwise marketed by Lender in a fiduciary capacity for or Bank on behalf of Borrower as Pledgor and the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended proceeds therefrom used to authorize and direct purchase the pledge, hypothecation and/or transfer of such Substitute Collateral. If no Substitute Collateral is pledged to Lender, as lender, by Lender, as fiduciary, Bank in accordance with the termsforegoing, covenants and conditions or in the event such other security or instrument is not otherwise acceptable to Bank, proceeds of the Collateral shall be placed into an interest bearing account offered by the Bank (such account is herein called the “Replacement Account”), until the earlier to occur of (i) the Collateral otherwise matures or becomes payable during the term of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition , or (ii) as an agreement as to the rights granted to Lender pursuant to Substitute Collateral can be reached by Pledgor and Bank. Bank may retain any such agreements. In case of conflict between successor collateral and the provisions proceeds therefrom as Collateral in accordance with the terms of this Agreement and those Agreement.
(d) The pledge of a security interest in the Collateral hereunder remains in effect for the term of this Agreement, notwithstanding any release by Bank of any other such agreement, collateral in connection with the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, Indebtedness or any rightsother agreement in effect between the Bank, Borrower and/or the Pledgor, now or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateralhereafter arising.
Appears in 1 contract
Pledge of Collateral. (a) As collateral security for the due and punctual payment and performance to Lender of all of the Debt “Obligations” under (and as defined in) the Credit Agreement and the other Loan Documents, whether at stated maturity, on demand, by required prepayment, declaration, acceleration, demand acceleration or otherwise, whether now existing or hereafter incurred, whether now or hereafter due, whether for principal interest (including interest accruing after the commencement of any bankruptcy, liquidation or insolvency proceeding, whether or not allowed or allowable thereunder), premiums, costs, expenses, indemnity payments, fees, claims, damages, costs, taxes and expenses of enforcement, and howsoever evidenced, including, without limitation, all reasonable attorneys’ fees and disbursements incurred by Lender in connection with the payment enforcement of amounts that would become due but any of its rights against Borrower or any other Person liable for the operation any of the automatic stay under Section 362(a) of foregoing (collectively, the Bankruptcy Code, 11 U.S.C. §362(a“Secured Obligations”)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledgescollaterally assigns, transfers, grants, hypothecates pledges and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and lien upon all right, title and interest of Borrower in and to all Collateral in which Borrower of the personal property and fixtures of Borrower, whether now owned or hereafter acquired by Borrower, of any type or description, wherever located, and whether now or hereafter has rights. Following existing or arising, including, but not limited to, the occurrence of an Event of Defaultfollowing, Lender is hereby authorized: (i) to transfer subject to the account proviso set forth below (all of Lender which shall constitute the “Collateral”):
(a) all goods and inventory of the Borrower wherever located, whether raw, in process or its designee finished; all materials or equipment usable in processing the same; all documents of title covering any Pledged Interests whether inventory; all equipment, furniture, trade fixtures and furnishings employed in the possession ofoperation of Borrower’s business; all of Borrower’s contract rights, accounts receivable, general intangibles, instruments, investment securities, investment property, financial assets, chattel paper, notes, drafts and acceptances; all cash, certificates of deposit, deposit accounts, letter of credit rights, supporting obligations, commercial tort claims or other claims of Borrower; all trademarks, patents, rights in intellectual property, interests in partnerships, joint ventures and other business associations, licenses, permits, copyrights, trade secrets, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know-how, software, data bases, data, skill, expertise, recipes, experience, processes, models, drawings, blueprints, catalogs, materials and records, goodwill (including, without limitation, the goodwill associated with any trademark, trademark registration or trademark licensed under any trademark license), claims in or under insurance policies, including unearned premiums, uncertificated securities, rights to receive tax refunds, rights to receive proceeds in connection with condemnation or similar proceedings, together with all proceeds therefrom and other payments and rights of indemnification and the proceeds and products of each of the foregoing in any form whatsoever;
(b) all deposit accounts and bank balances of Borrower on deposit with the Lender, any of Lender’s Affiliates, or registered any third party acting in Lender’s behalf or designated by Lender, including (without limitation) the name ofMaster Collateral Account, The Depository Trust Company and any extensions or renewals thereof, if such account is one which may be extended or renewed, and any successor or substitute account(s) therefor (each such account, and any extensions or renewals thereof being hereinafter called a “Collateral Account” and, collectively, the “Collateral Accounts”), together with all of Borrower’s right, title, and interest (whether now existing or hereafter created or arising) in and to the Collateral Accounts, all sums now or at any time hereafter on deposit therein, credited thereto or payable thereon, all proceeds and products thereof, and all instruments, documents, certificates, and other writings evidencing each such Collateral Account;
(c) all partnership interests and all other equity interests of Borrower (collectively, the “Pledged Interests”) in HarbourVest-Origami Structured Solutions L.P., a Delaware limited partnership (the “DTCPartnership”);
(d) or other clearing corporation or held otherwise; (ii) all present and future rights, claims, remedies and privileges of Borrower pertaining to transfer to the account any of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, and all general intangibles, payment intangibles and contract rights of Borrower relating to any of the Pledged Interests;
(e) all dividends, interest and other distributions received or receivable by Borrower, whether in cash, securities, promissory notes, payment intangibles, general intangibles, accounts or other property on or in respect of any of the Pledged Interests or any other Collateral subject to this Security and Pledge Agreement (as amended, restated or otherwise modified from time to time, this “Agreement”), including all dividends, returns and distributions thereon, additions thereto and substitutions therefor, including any and all new or substituted or additional cash, securities, investment property or other property distributed with respect to or upon conversion of or in exchange for or redemption of or other disposition of such Pledged Interests or any other Collateral subject to this Agreement, and whether as a result of a merger, consolidation, dissolution, reorganization, recapitalization, other change declared in the capital structure, interest payment, split, dividend, withdrawal or other distribution or exercise of any rights under any related Organizational Documents in respect of the Partnership or any other issuing Person of the Collateral (together with duly executed transfer powers all “PE Distributions”, as defined below, collectively, “Distributions”); and
(f) all proceeds, products and profits of, and all additions and accessions to and substitutions for, any of the foregoing in whatever form (including proceeds of proceeds, proceeds of insurance policies, and claims against third parties), in each case, whether now existing or hereafter arising or acquired (in each case to the extent applicable) or otherwise, including all cash, securities, shares, certificates, notes, instruments, rights, promissory notes, payment intangibles, general intangibles, accounts, receivables, letter of credit rights and all other property and financial assets now or hereafter received or receivable in connection with any sale, exchange, redemption or other appropriate endorsements. With respect to disposition of any Collateral in of the possession of foregoing, including whatever is receivable or registered in the name of a custodian bank received when such property or nominee thereforother rights, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner proceeds thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledgesold, hypothecation and/or transfer of such Collateral to Lendercollected, as lenderexchanged, by Lenderconverted, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases redeemed or otherwise acquires disposed of (and in each case whether constituting accounts, goods, money, documents, instruments, chattel paper, investment property or obtains any additional Equity Interests in any Corporationgeneral intangibles or otherwise), LLC whether such disposition is voluntary or Partnershipinvoluntary (collectively, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt“Proceeds”); provided, however, that if Lender determinesnotwithstanding anything to the contrary set forth herein, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights “Collateral” shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right not include (but not the obligation), in its sole discretion, i) Borrower’s legal entitlement to sell or exercise the samerequest and receive, and if exercisedall right, then title and interest of Borrower in the monies disbursed by Lender Proceeds of, capital contributions from Borrower’s limited partners and general partner from and after the date hereof, except to the extent such capital contributions are required to be made to Borrower under and in connection therewith shall become part accordance with the term of the Debt Performance Agreement and (iii) any right to enforce against Borrower’s limited partners and general partner their respective obligations to make capital contributions; provided, further that “Collateral” shall include (A) all of the stockdividends, interest and other distributions, whether in cash, securities, evidences promissory notes, payment intangibles, general intangibles, accounts or other property, now or hereafter received by or payable to Borrower on or in respect of indebtedness any of any PE Fund, and (B) all cash, securities, shares, certificates, notes, instruments, rights, promissory notes, payment intangibles, general intangibles, accounts, receivables, letter of credit rights and all other items so acquired shall be titled property and financial assets now or hereafter received by or payable to Borrower in the name connection with any sale, exchange, redemption or other disposition of Borrower and shall become part any PE Fund (each of the Collateralforegoing, collectively, “PE Distributions”).
Appears in 1 contract
Samples: Security and Pledge Agreement (HarbourVest - Origami Structured Solutions L.P.)
Pledge of Collateral. (a) As Pledgor hereby (i) pledges and assigns to Secured Party, for the benefit of the Lender Parties, all of its right, title and interest in and to the Pledged Collateral, whether now or hereafter existing and (ii) grants to Secured Party, for the benefit of the Lender Parties, a continuing first priority security interest in and lien upon the Pledged Collateral, whether now or hereafter existing and the proceeds thereof, as continuing collateral security for the due and punctual payment and performance for (1) the Loans and all other Obligations of Borrower under the Loan Agreement and the other Loan Documents, whether now existing or hereafter incurred or arising, (2) the payment by Pledgor, when due and payable, of all amounts from time to time owing by Pledgor under or in respect of the Guaranty or any other Loan Document, and the due performance by Pledgor of all of its other respective obligations under or in respect of the Debt Guaranty or any other Loan Document, in each case whether now existing or hereafter incurred or arising, (3) all other sums payable under the Loan Agreement and the other Loan Documents, whether at stated maturityfor principal, by required prepaymentinterest, declaration, acceleration, demand fees or otherwise, whether now existing or hereafter incurred or arising, and (4) all renewals, extensions, amendments, modifications, supplements, or restatements of or substitutions for any of the foregoing described in subsections (a)(1) through (a)(3) (all such obligations, indebtedness and liabilities described in (a)(1) through (a)(4) collectively, the “Secured Obligations”). As used herein, the term “Secured Obligations” refers to all present and future indebtedness, obligations and liabilities of whatever type which are described above in this section, including any interest which accrues after the commencement of any case, proceeding, or other action relating to the bankruptcy, insolvency, or reorganization of Pledgor or any Issuer. Notwithstanding anything in this Agreement to the contrary, the Secured Obligations shall be limited to a maximum aggregate amount equal to the largest amount that would render this Agreement and/or the security interest granted hereunder subject to avoidance as a fraudulent transfer or conveyance under Applicable Law.
(b) The Pledgor shall (i) deliver to Secured Party all certificates or instruments evidencing or representing the Pledged Collateral, and (ii) deliver to Secured Party all certificates or instruments evidencing or representing any additional Pledged Collateral within five (5) Business Days after the Pledgor’s acquisition of such Pledged Collateral. Until such time as Pledgor has delivered all certificates or instruments evidencing or representing the Pledged Collateral to Secured Party, the Pledgor shall hold such certificates and/or instruments as bailee and agent for the Secured Party. Each such certificate and instrument shall be registered in the name of the Pledgor, duly endorsed in blank or accompanied by an equity power duly executed by the Pledgor in blank, in form and substance reasonably satisfactory to Secured Party, with any and all documentary tax stamps and other documents necessary to cause Secured Party to have a good, valid and perfected continuing first priority pledge of, Lien on and security interest in the Pledged Collateral, free and clear of any other mortgage, pledge, Lien, security interest, hypothecation, assignment, charge, right, encumbrance or transfer or other restriction (individually, an “Encumbrance” and collectively, “Encumbrances”), including, without limitation, any necessary notations in the payment of amounts that would become due but for the operation record books of the automatic stay under Section 362(a) of Pledgor or the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral entity in which Borrower now such equity or hereafter has rightsownership interests evidence an ownership stake. Following At any time following the occurrence and during the continuation of an Event of Default, Lender is hereby authorized: (i) to transfer to the account any or all of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates Collateral, at the option of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee Secured Party exercised in a manner sufficient to perfect Lender’s security interest thereinaccordance with Section 3(d) hereof, Borrower shall promptly deliver or cause to may be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank Secured Party or nominee thereforof its nominee, and the Pledgor hereby covenants that, upon demand therefor by Secured Party, the Pledgor shall, or shall cause the Issuer in which such equity or ownership interests evidence an ownership stake to, effect such registration.
(c) Secured Party shall have the right, but not the obligation, to pay any taxes or levies on or relating to the Pledged Collateral represented by entries on and any costs to preserve the books of any financial intermediaryPledged Collateral, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held which payments shall be made for the account of Lenderthe Pledgor and shall constitute a part of the Obligations.
(d) Within five (5) Business Days of any request by the Secured Party, the Pledgor, at Pledgor’s own cost and expense, will duly execute and deliver to Secured Party such financing statements, continuation statements, assignments, certificates and/or such other agreements, assignments, instructions or at the discretion of Lender and subject documents as Secured Party may reasonably request relating to the written instructions of LenderPledged Collateral or otherwise to enable Secured Party to create, deliver any such Collateral maintain and perfect or from time to Lender and/or cause any such Collateral time renew the security interests granted hereby or to be put in bearer formcreate, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s maintain and perfect a security interest in such Collateralany additional Pledged Collateral hereafter acquired by Pledgor or in any and all additions to and/or replacements, products and proceeds of any of the foregoing, all in form and substance reasonably satisfactory to Secured Party. In additionPledgor will pay all reasonable fees, Borrower agrees that costs and expenses associated therewith, including without limitation, the cost of filing any of the foregoing in all public offices or other locations wherever Secured Party deems filing to be necessary or desirable. Pledgor irrevocably grants Secured Party the right, at Secured Party’s option, to file any or all of the foregoing pursuant to the Uniform Commercial Code as enacted in the event State of Pledgor’s organization and otherwise without Pledgor’s signature, and Pledgor irrevocably appoints Secured Party as Pledgor’s attorney in fact to execute any of the foregoing in Pledgor’s name and to perform all other acts that any Collateral is held Secured Party deems appropriate to perfect and continue the security interests conferred by Lender in a fiduciary capacity for this Agreement or on behalf of Borrower as otherwise to effect fully the beneficial owner thereofpurposes, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants terms and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to , the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Loan Agreement and those the other Loan Documents.
(e) No injury to, or loss or destruction of, the Pledged Collateral or any Material Adverse Effect shall relieve Pledgor of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the CollateralSecured Obligations.
Appears in 1 contract
Pledge of Collateral. Each Borrower hereby pledges, assigns and grants to Agent a security interest in (aA) As with respect to any Subsidiary that is not an Excluded Subsidiary, all of the Borrower’s direct ownership interest in such Subsidiary and (B) with respect to any Subsidiary that is a First-Tier Excluded Subsidiary, 65% the voting equity interests of such First-Tier Excluded Subsidiary and 100% of the non-voting equity interests of such First-Tier Excluded Subsidiary, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the due and punctual payment and performance of all the Obligations. On the Closing Date or as required pursuant to Section 6.11, the certificate or certificates for such Equity Interests, to the extent certificated, will be delivered to Agent, accompanied by a stock power or other appropriate instrument of assignment duly executed in blank. To the extent required by the terms and conditions governing the Equity Interests in which a Borrower has an interest, such Borrower shall cause the books of each Person whose Equity Interests are part of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, Collateral and any transfer agent to reflect the payment of amounts that would become due but for the operation pledge of the automatic stay under Section 362(aEquity Interests. Upon the occurrence and during the continuance of an Event of Default hereunder, Agent may effect the transfer of any securities included in the Collateral (including but not limited to the Equity Interests) into the name of Agent and cause new certificates representing such securities to be issued in the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed name of Agent or allowable as claimsits transferee. Each Borrower will execute and deliver such documents, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower take or cause to be observed taken such actions, as Agent may reasonably request to perfect or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all continue the perfection of BorrowerAgent’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in the Equity Interests. Unless an Event of Default shall have occurred and be continuing, each Borrower shall be entitled to exercise any voting rights with respect to the Equity Interests in which it has an interest and to all Collateral give consents, waivers and ratifications in respect thereof, and provided further, that no vote shall be cast or consent, waiver or ratification given or action taken which Borrower now would be inconsistent with any of the terms of this Agreement or hereafter has rightswhich would constitute or create any violation of any of such terms. Following All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 1 contract
Samples: Loan and Security Agreement (Tracon Pharmaceuticals, Inc.)
Pledge of Collateral. (a) As Subject to the Intercreditor Agreement, eachEach Obligor hereby pledges, assigns and grants to Agent, for the benefit of the Holders, a security interest in all the Equity Interests in which such Obligor has any interest, including the Shares, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the due and punctual payment and performance of all the Obligations. To the extent required by the terms and conditions governing the Equity Interests in which an Obligor has an interest, such Obligor shall cause the books of each Person whose Equity Interests are part of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, Collateral and any transfer agent to reflect the payment of amounts that would become due but for the operation pledge of the automatic stay under Section 362(a) of Equity Interests. Subject to the Bankruptcy CodeIntercreditor Agreement, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which Borrower now or hereafter has rights. Following uponUpon the occurrence and during the continuance of an Event of DefaultDefault hereunder, Lender is hereby authorized: Agent may effect the transfer of any securities included in the Collateral (i) to transfer including but not limited to the account Equity Interests) into the name of Lender or its designee any Pledged Interests whether in the possession of, or registered Agent and cause new certificates representing such securities to be issued in the name of, The Depository Trust Company (the “DTC”) of Agent or other clearing corporation or held otherwise; (ii) to transfer its transferee. Subject to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any Intercreditor Agreement, eachEach Obligor will execute and deliver such Federal Reserve Bank; documents, and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver take or cause to be delivered taken such actions, as Agent may reasonably request to Lender all certificates perfect or instruments evidencing continue the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession perfection of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of LenderAgent’s security interest in the Equity Interests. Unless an Event of Default shall have occurred and be continuing and the Obligors shall have received written notice from Agent of its intention to suspend such Collateralrights, the Obligors shall be entitled to exercise any voting rights with respect to the Equity Interests in which it has an interest and to give consents, waivers and ratifications in respect thereof; provided that: no such notice shall be required if any Obligor has commenced an Insolvency Proceeding and, in any event, no vote shall be cast or consent, waiver or ratification given or action taken which would be inconsistent with any of the terms of this Agreement or which would constitute or create any violation of any of such terms. In additionSubject to the Intercreditor Agreement, Borrower agrees allAll such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and during the continuance of an Event of Default and following receipt by the Obligors of written notice from Agent of Agent’s intention to suspend such rights (unless an Insolvency Proceeding has been commenced), further provided that all such rights to vote and give consents, waivers and ratifications shall revive in the event that any Collateral the applicable Event of Default is held by Lender in a fiduciary capacity for cured or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreementwaived. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 1 contract
Samples: Note Purchase and Security Agreement (Lemonade, Inc.)
Pledge of Collateral. (a) As security for the due and punctual payment and performance of all of the Debt (whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a)), whether allowed or allowable as claims, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower to be observed or performed, each Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all of Borrower’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in and to all Collateral in which such Borrower now or hereafter has rights. Following In accordance with the occurrence terms of an Event of Defaultthis Agreement, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsementsendorsements necessary to perfect Lender’s first priority security interest in the Collateral. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender reasonably satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity InterestsInterests for so long as any portion of the Debt is outstanding, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt Debt, and the proceeds realized from any such sale or exercise shall be applied in accordance with the terms of this Agreement, and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 1 contract
Samples: Loan and Security Agreement (KBS Real Estate Investment Trust, Inc.)
Pledge of Collateral. (a) As Borrower pledges, assigns and grants to Bank a security interest in all the Shares of each Material Subsidiary, if any, together with all proceeds and substitutions thereof, all cash, stock and other moneys and property paid thereon, all rights to subscribe for securities declared or granted in connection therewith, and all other cash and noncash proceeds of the foregoing, as security for the due and punctual payment and performance of all the Obligations. Within ten (10) days of the Debt certification of any Shares of a Material Subsidiary, Borrower shall deliver to Bank the certificate or certificates for such Shares, accompanied by an instrument of assignment duly executed in blank by Borrower; provided that, in the event Borrower demonstrates to Bank’s reasonable satisfaction, that a pledge of more than sixty five percent (whether at stated maturity65%) of such Shares of a Foreign Subsidiary creates a material adverse tax consequence to Borrower under the U.S. Internal Revenue Code, by required prepayment, declaration, acceleration, demand or otherwise, including, without limitation, the payment of amounts that would become due but for the operation of the automatic stay under Section 362(a“Shares” shall mean sixty five percent (65%) of the Bankruptcy Codeissued and outstanding capital stock, 11 U.S.C. §362(a))membership units or other securities owned or held of record by Borrower or its Subsidiary in such Foreign Subsidiary. To the extent required by the terms and conditions governing the Shares, whether allowed Borrower shall cause the books of each Material Subsidiary and any transfer agent to reflect the pledge of such Shares. Upon the occurrence and during the continuance of an Event of Default hereunder, Bank may effect the transfer of any securities included in the Collateral (including but not limited to the Shares) into the name of Bank and cause new (as applicable) certificates representing such securities to be issued in the name of Bank or allowable as claimsits transferee. Borrower will execute and deliver such documents, and the observance and performance by Borrower of all of the terms, covenants and provisions of the Note and the other Loan Documents on the part of Borrower take or cause to be observed taken such actions, as Bank may reasonably request to perfect or performed, Borrower hereby (i) pledges, transfers, grants, hypothecates and assigns to Lender all continue the perfection of BorrowerBank’s right, title and interest in, to and under the Collateral, whether now or hereafter acquired, and (ii) grants to Lender a continuing first priority lien on and security interest in the Shares. Unless an Event of Default shall have occurred and be continuing, Borrower shall be entitled to exercise any voting rights with respect to the Shares and to all Collateral give consents, waivers and ratifications in respect thereof, provided that no vote shall be cast or consent, waiver or ratification given or action taken which Borrower now would be inconsistent with any of the terms of this Agreement or hereafter has rightswhich would constitute or create any violation of any of such terms. Following All such rights to vote and give consents, waivers and ratifications shall terminate upon the occurrence and continuance of an Event of Default, Lender is hereby authorized: (i) to transfer to the account of Lender or its designee any Pledged Interests whether in the possession of, or registered in the name of, The Depository Trust Company (the “DTC”) or other clearing corporation or held otherwise; (ii) to transfer to the account of Lender or its designee with any Federal Reserve Bank any Pledged Interests held in book entry form with any such Federal Reserve Bank; and (iii) to exchange certificates representing or evidencing the Pledged Interests for certificates of smaller or larger denominations. To the extent that the Pledged Interests have not already been transferred to Lender or its designee in a manner sufficient to perfect Lender’s security interest therein, Borrower shall promptly deliver or cause to be delivered to Lender all certificates or instruments evidencing the Pledged Interests, together with duly executed transfer powers or other appropriate endorsements. With respect to any Collateral in the possession of or registered in the name of a custodian bank or nominee therefor, or any Collateral represented by entries on the books of any financial intermediary, Borrower agrees to cause such custodian bank or nominee either to enter into an agreement with Lender satisfactory to Lender in form and content confirming that the Collateral is held for the account of Lender, or at the discretion of Lender and subject to the written instructions of Lender, deliver any such Collateral to Lender and/or cause any such Collateral to be put in bearer form, registered in the name of Lender or its nominee, or transferred to the account of Lender with any Federal Reserve Bank, DTC, or other clearing corporation. With respect to any Collateral held in an account maintained by Lender as financial intermediary, Borrower hereby gives notice to Lender of Lender’s security interest in such Collateral. In addition, Borrower agrees that in the event that any Collateral is held by Lender in a fiduciary capacity for or on behalf of Borrower as the beneficial owner thereof, any agreements executed by Borrower in connection therewith are hereby amended to authorize and direct the pledge, hypothecation and/or transfer of such Collateral to Lender, as lender, by Lender, as fiduciary, in accordance with the terms, covenants and conditions of this Agreement. The rights granted to Lender pursuant to this Agreement are in addition to the rights granted to Lender pursuant to any such agreements. In case of conflict between the provisions of this Agreement and those of any other such agreement, the provisions hereof shall prevail. In the event that Borrower purchases or otherwise acquires or obtains any additional Equity Interests in any Corporation, LLC or Partnership, or any rights, or options, subscriptions or warrants to acquire such Equity Interests, all such Equity Interests, rights, options, subscriptions or warrants shall automatically be deemed to be a part of the Collateral pledged by Borrower. If any such Equity Interests are to be evidenced by a certificate, such additional certificates shall be promptly delivered to Lender, together with Powers related thereto, or other instruments appropriate to a certificate representing an Equity Interest, duly executed in blank. Borrower shall deliver to Lender all subscriptions, warrants, options and all such other rights, and upon delivery to Lender, Lender shall hold such subscriptions, warrants, options and other rights as additional collateral pledged to secure the Debt; provided, however, that if Lender determines, in its sole discretion, that the value of any such subscriptions, warrants, options or other rights shall terminate, expire or be materially reduced in value by holding the same as Collateral, Lender shall have the right (but not the obligation), in its sole discretion, to sell or exercise the same, and if exercised, then the monies disbursed by Lender in connection therewith shall become part of the Debt and all of the stock, securities, evidences of indebtedness and other items so acquired shall be titled in the name of Borrower and shall become part of the Collateral.
Appears in 1 contract
