Pledgor’s Covenants. During the term of this Security Agreement: (a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. (b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan Agreement. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances. (c) Pledgor shall take such other actions as Secured Party shall reasonably deem necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the judgment of Secured Party) to create, preserve, perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee. (d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request. (e) Without at least thirty (30) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement. (f) Pledgor shall not close the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereof. (g) Any delivery of Collateral to Secured Party by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing. (h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
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Samples: Pledge and Security Agreement (Riverstone VI Centennial QB Holdings, L.P.), Pledge and Security Agreement (Riverstone VI Centennial QB Holdings, L.P.)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons (other than another Lender or its Related Parties) at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party (or another Lender) is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to the Pledgor when it may reasonably do so without prejudice, pay any such costs and reasonable expenses and discharge encumbrances on the Collateral, and any payments of such costs and reasonable expenses and any payments to discharge such encumbrances shall be become a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers statement that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor, Fund Entities or Affiliates of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor the Borrower may request a require each Applicable Lender to direct Custodian to release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedat all times preserve, (A) renew and keep in full force and effect its legal existence and the case rights, qualifications, licenses, permits, franchises and governmental authorizations material to the conduct of Collateral consisting of certificated securities registered in the name of Pledgorits business, by delivery of certificates representing such securities and maintain all requisite authority to Secured Party or by delivery of certificates representing such securities to Custodian, conduct its business in each case, accompanied by any required transfer tax stamps, and jurisdiction in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, which its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writingbusiness is conducted.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
Appears in 1 contract
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.shall
(b) Pledgor shall pay all reasonable costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxesTaxes, assessments, reasonable attorney’s 's fees, reasonable legal expenses and reasonable expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan Agreement. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances, in each case that are reasonable.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem reasonably necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, includingit being understood that as of the Closing Date, without limitation, executing and delivering or causing the execution and only actions that shall be required under this subsection (c) shall be the delivery of a control agreement the Shares with respect to the Collateral Accounts and/orAccount, the execution and delivery by Pledgor of the Control Agreement and the filing of a financing statement in appropriate form in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all office of the Collateral to be transferred Recorder of record into Deeds of the name District of Secured Party or its nomineeColumbia and the filing of this Security Agreement with the Registrar of Companies in Bermuda.
(d) Without limiting the generality of the foregoing, Pledgor shall will take, or cause to be taken, all action that may be required under the laws of the jurisdiction of organization of the Issuers or under any of their organizational documents to ensure that the security interest granted hereunder is perfected and ranks prior to all Liens and rights of others therein other than Permitted Liens.
(e) Pledgor shall: (i) promptly furnish an employee or agent that is not a public side person at Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish an employee or agent that is not a public side person at Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, than information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of Law or contractual restrictions not otherwise prohibited by the Margin Loan Agreement. Notwithstanding ); provided that, for the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty (30) days’ prior written notice to Secured Partyavoidance of doubt, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect be required to the Collateral at any office, furnish or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement Material Nonpublic Information pursuant to Rule 144 under the Securities Actthis Section 6(e).. Notwithstanding
Appears in 1 contract
Samples: Margin Loan Agreement (Teekay Corp)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, substantially in the event that any Collateral form of Exhibit B hereto (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (with such modifications thereto as defined in may be reasonably requested by the UCCsecurities intermediary thereunder), causing any or all granting Secured Party control of the Collateral to be transferred of record into Account (the name of Secured Party or its nominee“Control Agreement”2).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSC Voting Agreement, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, be entitled to cause Issuer to provide any information to purchasers sell or otherwise dispose of the Collateral Shares as necessary in connection with any placement provided that the proceeds of such sale or disposition are deposited directly to and remain in the Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSC Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of the amount in the BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an offering amount that is not registered under exceeds the aggregate value of the FSC Collateral Shares (as calculated using the average closing price of such FSC Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by the Securities Act Intermediary (other than a placement as defined in the Control Agreement), to effect any permitted withdrawal of cash or Collateral Shares pursuant to Rule 144 under the Securities Actthis Section 6(f).
Appears in 1 contract
Samples: Pledge and Security Agreement (Tannenbaum Leonard M)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement substantially in the form of Exhibit B hereto (with respect to such modifications thereto as may be reasonably requested by the securities intermediary thereunder), granting Secured Party control of the Collateral Accounts and/or, in Account (the “Control Agreement”). In the event the securities intermediary under the Control Agreement terminates the Control Agreement, Secured Party shall not deliver any instructions regarding a successor securities intermediary pursuant to Section 10 of the Control Agreement unless Pledgor agrees in writing that any Collateral (other than Cash or Cash Equivalents) is such instructions may be delivered; provided that if, after 20 days following notice of such termination by the Securities Intermediary, Secured Party and Pledgor do not held through DTC or another clearing corporation (as defined in agree on such instructions regarding a successor securities intermediary, the UCC), causing any or all Secured Party may provide the instructions regarding the delivery of the Collateral to a successor securities intermediary (provided such successor securities intermediary shall be transferred Bank of record into the name of Secured Party New York Mellon, Deutsche Bank Trust Company Americas, Wxxxx Fargo Capital Finance, LLC, Bxxxx Brothers Hxxxxxxx & Co. or its nomineeU.S. Bank).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSFR Voting Agreement, (A) Pledgor shall be entitled to sell or otherwise dispose of the Collateral Shares provided that the proceeds of such sale or disposition are deposited directly to and remain in the case Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral consisting deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSFR Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of certificated securities registered the amount in the name BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an amount that exceeds the aggregate value of the FSFR Collateral Shares (as calculated using the average closing price of such FSFR Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by delivery the Securities Intermediary (as defined in the Control Agreement), to effect any permitted withdrawal of certificates representing such securities cash or Collateral Shares pursuant to this Section 6(e). On each date that Pledgor delivers a Withdrawal Notice (as defined in the Control Agreement) to the Securities Intermediary to effect any permitted withdrawal of dividends or interest pursuant to this Section 6(e), Pledgor shall (x) be deemed to have represented and warranted to Secured Party or by delivery that (i) the amount requested to be transferred thereby does not exceed the aggregate amount of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, dividends and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form interest on the Collateral deposited into the Account and substance satisfactory to not previously withdrawn and (ii) it has no actual knowledge that the Secured Party or Custodian, as applicable, and will suffer a BDC Net Loss that is indemnifiable pursuant to Article VIII of the Purchase Agreement in an amount that exceeds the case aggregate value of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions andcalculated, in the case of delivery to Custodianthe shares of Fifth Street Senior Floating Rate Corp., using the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement average closing price of such Collateral Shares in an offering that is not registered under over the Securities Act five (other than 5) Business Days prior to the date of such Withdrawal Notice) and (y) concurrently deliver a placement pursuant copy of such Withdrawal Notice to Rule 144 under the Securities Act)Secured Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Fifth Street Asset Management Inc.)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement substantially in the form of Exhibit B hereto (with respect to such modifications thereto as may be reasonably requested by the securities intermediary thereunder), granting Secured Party control of the Collateral Accounts and/or, in Account (the “Control Agreement”). In the event the securities intermediary under the Control Agreement terminates the Control Agreement, Secured Party shall not deliver any instructions regarding a successor securities intermediary pursuant to Section 10 of the Control Agreement unless Pledgor agrees in writing that any Collateral (other than Cash or Cash Equivalents) is such instructions may be delivered; provided that if, after 20 days following notice of such termination by the Securities Intermediary, Secured Party and Pledgor do not held through DTC or another clearing corporation (as defined in agree on such instructions regarding a successor securities intermediary, the UCC), causing any or all Secured Party may provide the instructions regarding the delivery of the Collateral to a successor securities intermediary (provided such successor securities intermediary shall be transferred Bank of record into the name of Secured Party New York Mellon, Deutsche Bank Trust Company Americas, Wxxxx Fargo Capital Finance, LLC, Bxxxx Brothers Hxxxxxxx & Co. or its nomineeU.S. Bank).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSC Voting Agreement, (A) Pledgor shall be entitled to sell or otherwise dispose of the Collateral Shares provided that the proceeds of such sale or disposition are deposited directly to and remain in the case Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral consisting deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSC Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of certificated securities registered the amount in the name BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an amount that exceeds the aggregate value of the FSC Collateral Shares (as calculated using the average closing price of such FSC Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by delivery the Securities Intermediary (as defined in the Control Agreement), to effect any permitted withdrawal of certificates representing such securities cash or Collateral Shares pursuant to this Section 6(e). On each date that Pledgor delivers a Withdrawal Notice (as defined in the Control Agreement) to the Securities Intermediary to effect any permitted withdrawal of dividends or interest pursuant to this Section 6(e), Pledgor shall (x) be deemed to have represented and warranted to Secured Party or by delivery that (i) the amount requested to be transferred thereby does not exceed the aggregate amount of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, dividends and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form interest on the Collateral deposited into the Account and substance satisfactory to not previously withdrawn and (ii) it has no actual knowledge that the Secured Party or Custodian, as applicable, and will suffer a BDC Net Loss that is indemnifiable pursuant to Article VIII of the Purchase Agreement in an amount that exceeds the case aggregate value of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions andcalculated, in the case of delivery to Custodianthe shares of Fifth Street Finance Corp., using the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement average closing price of such Collateral Shares in an offering that is not registered under over the Securities Act five (other than 5) Business Days prior to the date of such Withdrawal Notice) and (y) concurrently deliver a placement pursuant copy of such Withdrawal Notice to Rule 144 under the Securities Act)Secured Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Fifth Street Asset Management Inc.)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement substantially in the form of Exhibit B hereto (with respect to such modifications thereto as may be reasonably requested by the securities intermediary thereunder), granting Secured Party control of the Collateral Accounts and/or, in Account (the “Control Agreement”). In the event the securities intermediary under the Control Agreement terminates the Control Agreement, Secured Party shall not deliver any instructions regarding a successor securities intermediary pursuant to Section 10 of the Control Agreement unless Pledgor agrees in writing that any Collateral (other than Cash or Cash Equivalents) is such instructions may be delivered; provided that if, after 20 days following notice of such termination by the Securities Intermediary, Secured Party and Pledgor do not held through DTC or another clearing corporation (as defined in agree on such instructions regarding a successor securities intermediary, the UCC), causing any or all Secured Party may provide the instructions regarding the delivery of the Collateral to a successor securities intermediary (provided such successor securities intermediary shall be transferred Bank of record into the name of Secured Party New York Mellon, Deutsche Bank Trust Company Americas, Xxxxx Fargo Capital Finance, LLC, Xxxxx Brothers Xxxxxxxx & Co. or its nomineeU.S. Bank).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSC Voting Agreement, (A) Pledgor shall be entitled to sell or otherwise dispose of the Collateral Shares provided that the proceeds of such sale or disposition are deposited directly to and remain in the case Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral consisting deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSC Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of certificated securities registered the amount in the name BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an amount that exceeds the aggregate value of the FSC Collateral Shares (as calculated using the average closing price of such FSC Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by delivery the Securities Intermediary (as defined in the Control Agreement), to effect any permitted withdrawal of certificates representing such securities cash or Collateral Shares pursuant to this Section 6(e). On each date that Pledgor delivers a Withdrawal Notice (as defined in the Control Agreement) to the Securities Intermediary to effect any permitted withdrawal of dividends or interest pursuant to this Section 6(e), Pledgor shall (x) be deemed to have represented and warranted to Secured Party or by delivery that (i) the amount requested to be transferred thereby does not exceed the aggregate amount of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, dividends and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form interest on the Collateral deposited into the Account and substance satisfactory to not previously withdrawn and (ii) it has no actual knowledge that the Secured Party or Custodian, as applicable, and will suffer a BDC Net Loss that is indemnifiable pursuant to Article VIII of the Purchase Agreement in an amount that exceeds the case aggregate value of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions andcalculated, in the case of delivery to Custodianthe shares of Fifth Street Finance Corp., using the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement average closing price of such Collateral Shares in an offering that is not registered under over the Securities Act five (other than 5) Business Days prior to the date of such Withdrawal Notice) and (y) concurrently deliver a placement pursuant copy of such Withdrawal Notice to Rule 144 under the Securities Act)Secured Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Oaktree Specialty Lending Corp)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party, other than Permitted Liens. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account in form and substance reasonably satisfactory to Secured Party and/or, in to the event extent that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor, Fund Entities or Affiliates of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a require Secured Party to direct Custodian to release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effected, (A) instruct Issuer and its transfer agent to make all payments and distributions in respect of the case of Relevant Collateral consisting of certificated securities registered in the name of Shares owned by Pledgor, by delivery including without limitation dividend payments, any Series A PIK Shares issued in respect of certificates representing such securities to Secured Party any Preferred Shares that constitute Relevant Collateral Shares and any Common Shares received upon conversion of any Preferred Shares or by delivery of certificates representing such securities to CustodianSeries A PIK Shares that constitute Relevant Collateral Shares, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities directly to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested maintain such instruction continuously in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that effect until this Security Agreement is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act)terminated.
Appears in 1 contract
Samples: Pledge and Security Agreement (KKR Fresh Aggregator L.P.)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons (other than another Lender or its Related Parties) at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and reasonable expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan Agreement. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and reasonable expenses and any payments to discharge such encumbrances, and any such reimbursement obligation shall be a part of the Secured Obligations.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers statement that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account in form and substance reasonably satisfactory to Secured Party and/or, in to the event extent that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor, Fund Entities or Affiliates of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a require each Applicable Lender to direct Custodian to release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery Pledgor shall instruct Issuer and its transfer agent to make all payments and distributions, and to issue any Common Shares that may be issuable (upon conversion or otherwise), in respect of the Relevant Collateral to Secured Party Shares owned by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities directly to the Share Collateral Account, (B) Account and Pledgor shall maintain such instruction continuously in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by effect until this Security Agreement is terminated. Pledgor of an instruction to the issuer of such securities instructing such issuer shall instruct Issuer and its transfer agent to register such securities any Collateral that is not held through the facilities of DTC in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case an Affiliate of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any such other case, by complying with such delivery instructions name as Secured Party shall provide to Pledgor in writingmay instruct.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
Appears in 1 contract
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to the Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Custodian or Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor, Fund Entities or Affiliates (other than the Issuer and its subsidiaries) of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
Appears in 1 contract
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, substantially in the event that any Collateral form of Exhibit B hereto (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (with such modifications thereto as defined in may be reasonably requested by the UCCsecurities intermediary thereunder), causing any or all granting Secured Party control of the Collateral to be transferred of record into Account (the name of Secured Party or its nominee“Control Agreement”2).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSFR Voting Agreement, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, be entitled to cause Issuer to provide any information to purchasers sell or otherwise dispose of the Collateral Shares as necessary in connection with any placement provided that the proceeds of such sale or disposition are deposited directly to and remain in the Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSFR Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of the amount in the BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an offering amount that is not registered under exceeds the aggregate value of the FSFR Collateral Shares (as calculated using the average closing price of such FSFR Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by the Securities Act Intermediary (other than a placement as defined in the Control Agreement), to effect any permitted withdrawal of cash or Collateral Shares pursuant to Rule 144 under the Securities Actthis Section 6(f).
Appears in 1 contract
Samples: Pledge and Security Agreement (Tannenbaum Leonard M)
Pledgor’s Covenants. During The Pledgor represents, covenants and warrants that unless compliance is waived by the term of this Security AgreementSecured Party in writing:
(a) The Pledgor shall will properly preserve the Collateral; defend the Collateral against all any adverse claims and demands demands; and keep accurate Books and Records.
(b) The Pledgor’s chief executive office is located, in the state specified on the signature page hereof. In addition, the Pledgor is incorporated in or organized under the laws of the state specified on such signature page.
(c) Unless otherwise agreed, the Pledgor has not granted and will not grant any security interest in any of the Collateral except to the Secured Party, and will keep the Collateral free of all persons at liens, claims, security interests and encumbrances of any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell kind or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentationnature except, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentationfor Permitted Liens.
(bd) The Pledgor shall pay all costs necessary to defend and enforce the security interest created by this Security Agreementpreserve, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s feesinsurance premiums, legal expenses repairs, rent, storage costs and expenses of sales. Whether , and any costs to perfect the Collateral is or is not in Secured Party’s possessionsecurity interest (collectively, and without any obligation to do so and without the “Collateral Costs”). Without waiving the Pledgor’s default for failure to make any such payment, the Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses Collateral Costs, and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan Agreement. The Pledgor agrees to reimburse the Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the judgment of Secured Party) to create, preserve, perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such requestCosts so incurred.
(e) Without at least thirty (30) days’ prior written notice Until the Secured Party exercises its rights to make collection, the Pledgor will diligently collect all Collateral in accordance with its reasonable business judgment or as otherwise requested by the Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) If any Collateral is or becomes the subject of any registration certificate, certificate of deposit or negotiable document of title, including any warehouse receipt or xxxx of lading, the Pledgor shall not close immediately deliver such documents as the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofreasonably request.
(g) Any delivery The Pledgor will not sell, lease, agree to sell or lease, or otherwise dispose of any Collateral to Secured Party by Pledgor shall be effected, (A) except as set forth in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writingCredit Agreement.
(h) Exhibit A to this Agreement is a complete list of all U.S. patents, trademark and service xxxx registrations, and all applications therefore, in which the Pledgor shall use commercially reasonable effortshas any right, if requested title, or interest, throughout the world. To the extent required by the Secured Party in connection with its discretion, the Pledgor will promptly notify the Secured Party of any exercise acquisition (by adoption and use, purchase, license or otherwise) of remedies hereunderany material U.S. patent, trademark or service xxxx registrations, and applications therefore, and unregistered trademarks and service marks, throughout the world, which are granted or filed or acquired after the date hereof or which are not listed on Exhibit A. The Pledgor authorizes the Secured Party, without notice to the Pledgor, to cause Issuer modify this Agreement by amending the Exhibit to provide include any information to purchasers such Collateral.
(i) The Pledgor will, at its expense, preserve or renew all of its material registered patents, copyrights, trademarks, trade names and service marks. The Pledgor also will promptly make application on any material patentable but unpatented inventions, material registerable but unregistered trademarks and service marks, and material copyrightable but uncopyrighted works except as shall be consistent with the Pledgor’s reasonable business judgment or as otherwise requested by the Secured Party. The Pledgor will at its expense protect and defend all rights in the Collateral against any material claims and demands of all persons other than the Secured Party and will, at its expense, enforce all rights in the Collateral against any and all infringers of the Collateral Shares where such infringement would materially impair the value or use of the Collateral to the Pledgor or the Secured Party. The Pledgor will not license or transfer any of the Collateral, except as necessary in connection with any placement of such Collateral Shares in an offering that is not registered permitted under the Securities Act (other than a placement pursuant to Rule 144 under Credit Agreement or with the Securities Act)Secured Party’s prior written consent.
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Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to the Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account in form and substance reasonably satisfactory to Secured Party and/or, in to the event extent that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and Party, (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor or its Affiliates, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan AgreementAgreement and (iii) Pledgor shall deliver to the Secured Party, at the time or times reasonably requested by such Secured Party, such properly completed and executed documentation that it is legally, and pursuant to its Organization Documents and other confidentiality obligations, entitled to deliver and that is reasonably requested by such Secured Party in order to permit such Secured Party to exercise its rights under this Security Agreement in a manner that will avoid or, to the extent possible, minimize withholding Tax upon a disposition of the Relevant Collateral Shares; provided that, the preparation or delivery of such documentation shall not be required if in Pledgor’s reasonable and good-faith judgment such preparation or delivery would subject Pledgor (or its Affiliates) to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of Pledgor (or its Affiliates). Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a require Secured Party to direct Custodian to release of Collateral in accordance with Section 2.09(d) 2.06 of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery Pledgor shall instruct Issuer and its transfer agent to make all payments in respect of Collateral to Secured Party Shares owned by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodianincluding without limitation dividend payments, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities directly to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested maintain such instruction continuously in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that effect until this Security Agreement is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act)terminated.
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Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall not create, incur, assume or suffer to exist any Lien upon the Collateral, except for Permitted Liens. Pledgor shall defend the Collateral against all claims and demands of all persons (other than another Lender or its Related Parties) at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party (or another Lender) is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan DocumentationPermitted Liens.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to the Pledgor when it may reasonably do so without prejudice, pay any such costs and reasonable expenses and discharge encumbrances on the Collateral, and any payments of such costs and reasonable expenses and any payments to discharge such encumbrances shall be become a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and reasonable expenses and any payments to discharge such encumbrancesencumbrance.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers statement that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor, Fund Entities or Affiliates of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor the Borrower may request a require each Applicable Lender to direct Custodian to release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedat all times preserve, (A) renew and keep in full force and effect its legal existence and the case rights, qualifications, licenses, permits, franchises and governmental authorizations material to the conduct of Collateral consisting of certificated securities registered in the name of Pledgorits business, by delivery of certificates representing such securities and maintain all requisite authority to Secured Party or by delivery of certificates representing such securities to Custodian, conduct its business in each case, accompanied by any required transfer tax stamps, and jurisdiction in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, which its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writingbusiness is conducted.
(h) Pledgor shall use commercially reasonable effortspay and discharge, as and when the same shall become due and payable, all Taxes and any other liabilities imposed upon it or upon its property; provided that no such Tax or liability needs to be paid or discharged if requested (i) it is being contested in connection good faith by appropriate proceedings, (ii) reserves, in accordance with any exercise of remedies hereunderGAAP, have been provided for and (iii) no Collateral would become subject to cause Issuer to provide any information to purchasers of the Collateral Shares forfeiture or loss as necessary in connection with any placement a result of such Collateral Shares contest.
(i) Pledgor shall comply with the requirements of all applicable Laws, all orders, writs, injunctions and decrees applicable to it or its property. Pledgor (or its Affiliates) will maintain policies and procedures reasonably designed to ensure compliance with Anti-Corruption Laws and applicable Sanctions by Pledgor and its managers, officers, employees and, in an offering that is not registered under the Securities Act case of Anti-Corruption Laws, its agents (other than a placement pursuant to Rule 144 under the Securities Actacting in their capacity as such).
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Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall not create, incur, assume or suffer to exist any Lien upon the Collateral, except for Permitted Liens. Pledgor shall defend the Collateral against all claims and demands of all persons (other than another Lender) at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party (or another Lender) is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to the Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts and/or, in the event that any Collateral (other than Cash or Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law, and Tax returns of Pledgor or its Affiliates, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change to Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedat all times preserve, (A) renew and keep in full force and effect its legal existence and the case rights, qualifications, licenses, permits, franchises and governmental authorizations material to the conduct of Collateral consisting of certificated securities registered in the name of Pledgorits business, by delivery of certificates representing such securities and maintain all requisite authority to Secured Party or by delivery of certificates representing such securities to Custodian, conduct its business in each case, accompanied by any required transfer tax stamps, and jurisdiction in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, which its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writingbusiness is conducted.
(h) Pledgor shall use commercially reasonable effortspay and discharge, as and when the same shall become due and payable, all Taxes and any other liabilities imposed upon it or upon its property; provided that no such Tax or liability needs to be paid or discharged if requested (i) it is being contested in connection good faith by appropriate proceedings, (ii) reserves, in accordance with any exercise of remedies hereunderGAAP, have been provided for and (iii) no Collateral would become subject to cause Issuer to provide any information to purchasers of the Collateral Shares forfeiture or loss as necessary in connection with any placement a result of such Collateral Shares contest.
(i) Pledgor shall comply with the requirements of all applicable Laws, all orders, writs, injunctions and decrees applicable to it or its property. Pledgor (or its Affiliates) will maintain policies and procedures reasonably designed to ensure compliance with Anti-Corruption Laws and applicable Sanctions by Pledgor and its managers, officers, employees and, in an offering that is not registered under the Securities Act case of Anti-Corruption Laws, its agents (other than a placement pursuant to Rule 144 under the Securities Actacting in their capacity as such).
Appears in 1 contract
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall use all commercially reasonable efforts to defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan AgreementObligations. Pledgor agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine is necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement substantially in the form of Exhibit B hereto (with respect to such modifications thereto as may be reasonably requested by the securities intermediary thereunder), granting Secured Party control of the Collateral Accounts and/or, in Account (the “Control Agreement”). In the event the securities intermediary under the Control Agreement terminates the Control Agreement, Secured Party shall not deliver any instructions regarding a successor securities intermediary pursuant to Section 10 of the Control Agreement unless Pledgor agrees in writing that any Collateral (other than Cash or Cash Equivalents) is such instructions may be delivered; provided that if, after 20 days following notice of such termination by the Securities Intermediary, Secured Party and Pledgor do not held through DTC or another clearing corporation (as defined in agree on such instructions regarding a successor securities intermediary, the UCC), causing any or all Secured Party may provide the instructions regarding the delivery of the Collateral to a successor securities intermediary (provided such successor securities intermediary shall be transferred Bank of record into the name of Secured Party New York Mellon, Deutsche Bank Trust Company Americas, Xxxxx Fargo Capital Finance, LLC, Xxxxx Brothers Xxxxxxxx & Co. or its nomineeU.S. Bank).
(d) Pledgor shall (i) promptly furnish Secured Party any information with respect to the Collateral reasonably requested by Secured Party and (ii) allow Secured Party or its representatives to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Law), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by Secured Party is not then available, Pledgor will furnish, or cause to be furnished, to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain make any of Pledgor’s books and records with respect change to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(fe) Pledgor shall not (and shall not enter into any agreement to) (i) close the Collateral Accounts Account or transfer (ii) sell, transfer, pledge or otherwise dispose of any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (ix) obtaining the prior written consent of Secured Party and (iiy) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral; provided that notwithstanding the foregoing, but subject in respect each case to Section 2.03 of the Collateral or portion thereof.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effectedFSFR Voting Agreement, (A) Pledgor shall be entitled to sell or otherwise dispose of the Collateral Shares provided that the proceeds of such sale or disposition are deposited directly to and remain in the case Collateral Account and are not reinvested except in US treasuries that would mature in two years or less and (B) Pledgor shall be entitled to withdraw dividends and interest paid on Collateral Shares so long as, as of the date of such release, (i) the amount withdrawn does not exceed the aggregate amount of dividends and interest on the Collateral consisting deposited into the Collateral Account and not previously withdrawn and (ii) Pledgor has no actual knowledge that the FSFR Indemnified Parties will (x) suffer any BDC Existing Investigation Defense Costs in excess of certificated securities registered the amount in the name BDC Escrow Fund as of the date thereof (less the sum of the aggregate amount, if any, of any Outstanding BDC Claims) and/or (y) suffer a BDC Net Loss, in each case that is indemnifiable pursuant to Article VIII of the Purchase Agreement and in an amount that exceeds the aggregate value of the FSFR Collateral Shares (as calculated using the average closing price of such FSFR Shares over the five (5) business days prior to the date of such contemplated release). Secured Party agrees to use commercially reasonable efforts to cooperate with the Pledgor, including providing any instruction reasonably required by delivery the Securities Intermediary (as defined in the Control Agreement), to effect any permitted withdrawal of certificates representing such securities cash or Collateral Shares pursuant to this Section 6(e). On each date that Pledgor delivers a Withdrawal Notice (as defined in the Control Agreement) to the Securities Intermediary to effect any permitted withdrawal of dividends or interest pursuant to this Section 6(e), Pledgor shall (x) be deemed to have represented and warranted to Secured Party or by delivery that (i) the amount requested to be transferred thereby does not exceed the aggregate amount of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, dividends and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form interest on the Collateral deposited into the Account and substance satisfactory to not previously withdrawn and (ii) it has no actual knowledge that the Secured Party or Custodian, as applicable, and will suffer a BDC Net Loss that is indemnifiable pursuant to Article VIII of the Purchase Agreement in an amount that exceeds the case aggregate value of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions andcalculated, in the case of delivery to Custodianthe shares of Fifth Street Senior Floating Rate Corp., using the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement average closing price of such Collateral Shares in an offering that is not registered under over the Securities Act five (other than 5) Business Days prior to the date of such Withdrawal Notice) and (y) concurrently deliver a placement pursuant copy of such Withdrawal Notice to Rule 144 under the Securities Act)Secured Party.
Appears in 1 contract
Samples: Pledge and Security Agreement (Oaktree Strategic Income Corp)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Agreement, (ii) file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which Secured Party is not named as the sole secured party, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in Secured Party’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, Secured Party at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default rate set forth in the Margin Loan Agreement. Pledgor Xxxxxxx agrees to reimburse Secured Party on demand for any payments of such costs and expenses and any payments to discharge such encumbrancesencumbrances and any such reimbursement obligation shall be a part of the Secured Obligations.
(c) Pledgor shall take such other actions as Secured Party shall reasonably deem determine are necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as Secured Party shall reasonably specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the reasonable judgment of Secured Party) to create, preserve, preserve or perfect or validate the security interest granted pursuant hereto and the priority thereof or to enable Secured Party to exercise and enforce its rights under this Security Agreement with respect to such security interest, including, without limitation, (i) executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account and/or, in (ii) to the event extent that any Collateral (other than Cash or and Cash Equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of Secured Party or its nominee.
(d) Pledgor shall (i) promptly furnish Secured Party any information that Pledgor has with respect to the Collateral that is reasonably requested by Secured Party and Party, (ii) allow Secured Party or its representatives reasonable access to inspect and copy, or furnish Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable LawLaw and Tax returns of Pledgor or Affiliates (other than Issuer and its respective subsidiaries) of any of the foregoing, other than receipts or other evidence showing the payment of Taxes with respect to the Collateral), subject to Section 5.06 of the Margin Loan AgreementAgreement and (iii) deliver to the Secured Party, at the time or times reasonably requested by Secured Party, a properly completed and executed Internal Revenue Service Form W-9 of Pledgor, as applicable, along with any other forms or documents reasonably requested by Secured Party. Notwithstanding the foregoing, to the extent any information reasonably requested by Secured Party is not then available, Pledgor will furnish, furnish to Secured Party or cause to be furnished, furnished to Secured Party such information as soon as reasonably practicable after such request.
(e) Without at least thirty ten (3010) days’ prior written notice to Secured Party, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, PledgorXxxxxxx’s chief executive office) at any place other than at the address indicated in Section 8.02(a9.02(a) of the Margin Loan Agreement or (ii) make or permit any change Pledgorto Xxxxxxx’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d2.06(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party and (ii) entering into such agreements as Secured Party may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral in respect of the Collateral or portion thereofCollateral.
(g) Any delivery of Collateral to Secured Party by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (D) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, and the crediting thereof by Secured Party or Custodian, as applicable, to the Cash Collateral Account or (E) in any other case, by complying with such delivery instructions as Secured Party shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
Appears in 1 contract
Samples: Pledge and Security Agreement (Birch-or Equity Holdings, LLC)
Pledgor’s Covenants. During the term of this Security Agreement:
(a) Pledgor shall defend the Collateral against all claims and demands of all persons at any time claiming any interest therein adverse to any Secured Party. Pledgor shall not, at any time, (i) sell or transfer any Collateral other than with respect to any Collateral that is being released in accordance with the Margin Loan Equity Support Agreement, (ii) file or knowingly suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which the Secured Party is Parties are not named as the sole secured partyparties, or (iii) permit any contractual restriction on any transfer, sale, pledge, or rehypothecation pledge of the Collateral, other than under the Margin Loan Documentation, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation. Pledgor shall take such action as necessary so that the Shares (or security entitlements in respect thereof) constituting Collateral, at all times, (i) are not subject to any restrictions on transfer or pledge, other than Existing Transfer Restrictions and (ii) are not subject to any shareholders agreement, investor rights agreements, or any other similar agreements or any voting or other contractual restrictions, in each case, except as expressly permitted or contemplated under the Margin Loan Documentation.
(b) Pledgor shall pay all costs to defend and enforce the security interest created by this Security Agreement, collect the Secured Obligations, and defend, enforce and collect the Collateral, including but not limited to taxes, assessments, reasonable attorney’s fees, legal expenses and expenses of sales. Whether the Collateral is or is not in any Secured Party’s or Collateral Agent’s possession, and without any obligation to do so and without waiving Pledgor’s default for failure to make any such payment, any Secured Party and/or Collateral Agent at its option may, following notice to Pledgor when it may reasonably do so without prejudice, pay any such costs and expenses and discharge encumbrances on the Collateral, and any payments of such costs and expenses and any payments to discharge such encumbrances shall be a part of the Secured Obligations and bear interest at the default a rate set forth in the Margin Loan Agreementof 9.00% per annum. Pledgor agrees to reimburse each Secured Party and Collateral Agent, as applicable, on demand for any payments of such costs and expenses and any payments to discharge such encumbrances.
(c) Pledgor shall take such other actions as any Secured Party or Collateral Agent shall reasonably deem necessary or appropriate to perfect and duly record the Lien created under this Security Agreement in the Collateral, including executing, delivering, filing and/or recording, in such locations and jurisdictions as such Secured Party or Collateral Agent shall specify, any financing statement, register of mortgages and charges, notice, instrument, document, agreement or other papers that may be necessary or desirable (in the judgment of such Secured PartyParty or Collateral Agent, as applicable) to create, preserve, perfect perfect, protect or validate the security interest granted pursuant hereto and the priority thereof or to enable such Secured Party or Collateral Agent to exercise and enforce its respective rights under this Security Agreement with respect to such security interest, including, without limitation, executing and delivering or causing the execution and delivery of a control agreement with respect to the Collateral Accounts Account and/or, in the event that any Collateral (other than Cash cash or Cash Equivalentscash equivalents) is not held through DTC or another clearing corporation (as defined in the UCC), causing any or all of the Collateral to be transferred of record into the name of such Secured Party Party, Collateral Agent or their respective nominee. Without prejudice to the generality of the foregoing, the Pledgor shall promptly, and in any event within three Business Days, following execution of this Agreement deliver to Collateral Agent a copy of its nomineeupdated register of mortgages and charges with an entry containing particulars of the Lien created under this Security Agreement.
(d) Pledgor shall (i) promptly furnish each Secured Party and Collateral Agent any information with respect to the Collateral reasonably requested by such Secured Party or Collateral Agent (as applicable) and (ii) allow each Secured Party or its representatives to inspect and copy, or furnish each Secured Party or its representatives with copies of, all records relating to the Collateral (other than, in each case, information or records Pledgor is prohibited from disclosing due to applicable Lawlaw), subject to Section 5.06 of the Margin Loan Agreement. Notwithstanding the foregoing, to the extent any information requested by any Secured Party or Collateral Agent is not then available, Pledgor will furnish, or cause to be furnished, to such Secured Party and Collateral Agent (as applicable) such information as soon as reasonably practicable after such request.
(e) Without at least thirty (30) days’ prior written notice to each Secured PartyParty and Collateral Agent, Pledgor shall not (i) maintain any of Pledgor’s books and records with respect to the Collateral at any office, or maintain Pledgor’s place of business (or, if Pledgor has more than one place of business, Pledgor’s chief executive office) at any place other than at the address indicated in Section 8.02(a) of the Margin Loan Equity Support Agreement or (ii) change Pledgor’s name, or the name under which Pledgor does business, or the form or jurisdiction of Pledgor’s organization from the name, form and jurisdiction set forth on the first page of this Security Agreement.
(f) Pledgor shall not close the Collateral Accounts Account or transfer any Collateral held therein or credited thereto (it being understood that Pledgor may request a release of Collateral in accordance with Section 2.09(d) of the Margin Loan Agreement) without (i) obtaining the prior written consent of Secured Party Collateral Agent and (ii) entering into such agreements as Secured Party Collateral Agent may in its sole discretion require to ensure the continued priority and perfection of its lien on such Collateral Collateral, on behalf of each Secured Party, in respect of the Collateral or portion thereof.
(g) Any delivery of Collateral to Collateral Agent, on behalf of each Secured Party Party, by Pledgor shall be effected, (A) in the case of Collateral consisting of certificated securities registered in the name of Pledgor, by delivery of certificates representing such securities to Secured Party or by delivery of certificates representing such securities to Custodian, in each case, accompanied by any required transfer tax stamps, and in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank, with signatures appropriately guaranteed, all in form and substance satisfactory to Secured Party or Custodian, as applicable, and in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (B) in the case of Collateral consisting of uncertificated securities registered in the name of Pledgor, by transmission by Pledgor of an instruction to the issuer of such securities instructing such issuer to register such securities in the name of Secured Party or Custodian or, in either case, its nominee (as requested by Secured Party at such time), accompanied by any required transfer tax stamps, the issuer’s compliance with such instructions and, in the case of delivery to Custodian, the crediting by Custodian of such securities to the Share Collateral Account, (C) in the case of securities in respect of which security entitlements are held by Pledgor through a securities intermediary, by the crediting of such securities, accompanied by any required transfer tax stamps, to a securities account of Custodian at such securities intermediary or, at the option of Custodian, at another securities intermediary satisfactory to Custodian and the crediting by Custodian of such securities to the Share Collateral Account, (DB) in the case of cash, by the wire transfer of such cash to Secured Party or Custodian, as applicable, Custodian and the crediting thereof by Secured Party or Custodian, as applicable, Custodian to the Cash Collateral Account or (EC) in any other case, by complying with such delivery instructions as Secured Party Collateral Agent shall provide to Pledgor in writing.
(h) Pledgor shall use commercially reasonable efforts, if requested in connection with any exercise of remedies hereunder, to cause Issuer to provide any information to purchasers of the Collateral Shares as necessary in connection with any placement of such Collateral Shares in an offering that is not registered under the Securities Act (other than a placement pursuant to Rule 144 under the Securities Act).
Appears in 1 contract
Samples: Pledge and Security Agreement (TH International LTD)
