Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreement, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Xxxxxxx, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. (b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral: (i) to demand, sue for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof, (ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto, (iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and (iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC. (c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Xxxxxxx’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request. (d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor. (e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction. (f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 2 contracts
Samples: Pledge Agreement (Greenlight Capital Inc), Pledge Agreement (Greenlight Capital Inc)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to paragraph 3(k) of the AgreementConfirmation) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreement, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction. The Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, the Secured Party may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof. The Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Secured Party than those obtainable through a public sale without such restrictions, and, notwithstanding such circumstances, agrees that any such private sale, if so required, shall be deemed to have been made in a commercially reasonable manner and that the Secured Party shall have no obligation to engage in public sales and no obligation to delay the sale of any Collateral for the period of time necessary to permit registration of such Collateral for public sale.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything The rights and powers of the Secured Party under or arising out of or in connection with this Agreement are separate, independent, additional and supplemental to any rights and powers that may arise pursuant to the contrary in Conveyancing and Law of Property Ordinance 1961(Cap. 220) of the Agreement, British Virgin Islands (the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership PositionCLP”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof powers arise pursuant to the limitations set forth CLP and there is ambiguity or conflict between the powers contained in Section 7(e) hereofthe CLP and those contained in, or arising out of or in connection with, this Agreement, those contained in this Agreement shall prevail.
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction AgreementConfirmation) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to paragraph 3(k) of the AgreementConfirmation) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction AgreementAgreements, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement Agreements or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement Agreements or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement Agreements as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement Agreements have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may:
(i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by the Secured Party from the Collateral Account all Account, Collateral consisting of Shares Shares, cash or other assets with respect a value sufficient to which the Representation and Agreement set forth satisfy in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of full all Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is Obligations then due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreement, whereupon Secured Party or such affiliate shall hold such Shares Shares, cash or other assets absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and provided that, to the extent such Collateral constitute Excess Shares, Secured Party shall not deliver or cause to be delivered such Excess Shares to close out open borrowing positions created in the course of Secured Party’s hedging activities in connection with the applicable Forward Transaction;
(ii) if such delivery shall be insufficient to satisfy in full all sell or cause the sale of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof any Collateral as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunderSecured Obligations then due, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactoryreasonably satisfactory and Secured Party may be the purchaser, lessee, assignee or recipient of any or all of the Collateral so disposed of at any public sale or at one or more private sales and thereafter hold the same absolutely, free from any claim or right of whatsoever kind, including any right or equity of redemption (statutory or otherwise), of Pledgor;
(iii) demand, xxx for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral, and otherwise exercise all of Pledgor’s rights with respect to any and all of the Collateral, in its own name, in the name of Pledgor or otherwise; provided that Secured Party shall have no obligation to take any of the foregoing actions; and
(iv) apply any Cash on deposit in the Collateral Account to any Secured Obligation; and
(v) take any combination of the actions described in clauses (i) through (iv) above. Pledgor covenants and agrees that it Pledgor will execute and deliver such documents and take such other action as Secured Party deems reasonably necessary or advisable in order that any such sale or exchange may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof (which may be the Secured Party) the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such salefix. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such noticesale. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling sale price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor specifically understands and agrees that any sale by Secured Party of all or part of the Collateral pursuant to the terms of this Pledge Agreement may be effected by Secured Party at times and in manners that could result in the proceeds of such sale being significantly and materially less than might have been received if such sale had occurred at different times or in different manners (including, without limitation, as a result of the provisions of Section 7 hereof). Without limiting the generality of the foregoing, if, in the reasonable opinion of Secured Party, there is a reasonable possibility that a public sale or distribution of any Collateral will violate any state or federal securities law, including without limitation, the Securities Act, Secured Party may (or, to the extent such Collateral constitutes Excess Shares, shall) offer and sell such Collateral in a transaction exempt from registration under the Securities Act, and/or limit purchasers to Qualified Institutional Buyers (as defined in Rule 144A of the Securities Act) and/or who will agree, among other things, to acquire the Collateral for their own account, for investment and not with a view to the distribution or resale thereof, and any such sale made in good faith by Secured Party shall be deemed “commercially reasonable”. Furthermore, Pledgor acknowledges that any such restricted or private sales may be at prices and on terms less favorable to Pledgor than those obtainable through a public sale without such restrictions, and agrees such sales shall not be considered to be not commercially reasonable solely because they are so conducted on a restricted or private basis. Pledgor further acknowledges that any specific disclaimer of any warranty of title or the like by Secured Party will not be considered to adversely affect the commercial reasonableness of any sale of Collateral. Pledgor agrees and acknowledges that the Shares are customarily sold on a recognized market within the meaning of Section 9-610 of the UCC. In the event that a Default Event shall have occurred and be continuing and Secured Party shall desire to exercise any of its rights and remedies with respect to the Collateral, as provided above or otherwise available to it under the UCC, at law or in equity, as contemplated by Section 9-603 of the UCC, the parties hereto agree, to the extent permitted by applicable law, to the standards set forth herein for measuring the fulfillment of the obligations of Secured Party and the rights of Pledgor under the UCC. In the event that notification of disposition of the Collateral is required by applicable law (it being acknowledged and agreed that no such notice shall be required if the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market), the parties hereto agree that notice sent to each of the Persons specified in Section 9-611(e) of the UCC prior to (x) the date of any proposed public sale of the Collateral or (y) the date on or after which Secured Party intends to conduct a private sale of Collateral, shall constitute a reasonable time for such notice; provided that, if Secured Party fails to comply with this sentence in any respect, its liability for such failure shall be limited to the liability (if any) imposed on it as a matter of law under the UCC. In the event that Secured Party determines to sell Shares constituting Collateral in a sale that is a public sale for purposes of the UCC, the parties hereto agree that posting of notice of such sale, such notice to describe the Collateral being sold and the time and place of the sale as described below, through the Bloomberg Professional service or any other comparable on-line service widely used by sophisticated equity traders and/or investors after the close of trading on the Exchange on the day of, but prior to, such sale shall constitute sufficient public notice of any such sale and that no notice thereof in any newspaper or other written publication shall be required. The parties hereto agree that notification of the time and method of a sale of the Collateral conducted in such a manner shall constitute sufficient notice of the time and place of the public sale for purposes of the UCC. Any disposition pursuant to the foregoing procedures shall be deemed to be a public disposition for purposes of the UCC even if Secured Party is the only Person who submits a bid for the Collateral. Pledgor hereby (A) acknowledges that, with respect to Shares constituting Collateral, selling or otherwise disposing of the Collateral in accordance with the restrictions and other provisions set forth in this Section 8(b) may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of Collateral in a single transaction to a single purchaser and (B) agrees and acknowledges that no method of sale or other disposition of Collateral shall be deemed commercially unreasonable solely because of the restrictions set forth in this Section 8(b). Secured Party may purchase the Collateral for its own account at any public disposition within the meaning of the UCC. Pledgor further acknowledges that to the extent Secured Party exercises any of its rights or remedies through any bulk sale or private sale, (x) such bulk sale or private sale may result in a lower sale price than would be obtainable through a public sale and (y) such bulk sale or private sale shall not be considered to be not commercially reasonable solely because it is conducted as a bulk or private sale or results in a lower sale price than would be obtainable through a public sale.
(c) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the CollateralCollateral to the extent necessary to satisfy in full all Secured Obligations that are then due:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,;
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with in respect thereto,thereof;
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), ; and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(cd) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so reasonably requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(de) In the case of If a Default EventEvent shall have occurred and be continuing, Secured Party may proceed to realize upon the security interest Security Interests in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 78. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the reasonable expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral, and any expenses described in Section 5(d); second, to the payment to Secured Party of an the aggregate amount equal (or the value of any delivery or other performance) owed by Pledgor to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default EventSecured Obligations that are then due; and finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement Secured Obligations have been fully discharged or sufficient funds have been set aside by Secured Party, Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may:
(i) deliver purchase or cause to be delivered to itself or to purchased by an affiliate of Secured Party designated by Secured Party from the Collateral Account all Account, Collateral consisting of Shares or other securities with respect to which a market value, as reasonably determined by the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant up to the Agreement) on value sufficient to satisfy in full all Secured Obligations then due and payable, and set off against or apply to the related Early Termination Date or Secured Party’s obligation to pay the date on which purchase price, the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction AgreementSecured Obligations then due and payable, whereupon Secured Party shall hold such Shares or other securities absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and ;
(ii) if such delivery shall be insufficient to satisfy in full all sell or cause the sale of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof any Collateral as may be necessary to generate proceeds up to the amount sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunderSecured Obligations, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory;
(iii) apply any Cash on deposit in the Collateral Account to any Secured Obligation; and
(iv) take any combination of the actions described in clauses (i) through (iii) above; provided that Secured Party shall give Pledgor not less than three day’s prior written notice of the time and place of any delivery, sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes “reasonable authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. Pledgor and Secured Party hereby acknowledge and agree that the Shares are of a type customarily sold on a recognized market. Pledgor covenants and agrees that it Pledgor will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling sale price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor and Secured Party agree that Secured Party shall not be entitled to exercise its rights, including, without limitation, voting rights, and remedies hereunder in a manner that would cause Secured Party or its affiliates, or any “group” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) that includes (or may be deemed to include) Secured Party or its affiliates, to become at any one time the beneficial owner, within the meaning of Section 13 or Section 16 of the Exchange Act, of more than 9.0% of the Shares of the Issuer then outstanding. Pledgor hereby (i) acknowledges that selling or otherwise disposing of the Collateral in accordance with the restriction set forth in this Section 7(b) may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of the Collateral without regard to such restriction and (ii) agrees and acknowledges that no method of sale or other disposition of Collateral shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions.
(c) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,;
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with in respect thereto,thereof;
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), ; and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(cd) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(de) In the case of If a Default EventEvent shall have occurred and be continuing, Secured Party may proceed to realize upon the security interest Security Interests in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral, and any expenses described in Section 5(e); second, to the payment to Secured Party of an the aggregate amount equal (or the value of any delivery or other performance) owed by Pledgor to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default EventSecured Obligations; and finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement Secured Obligations have been fully discharged or sufficient funds have been set aside by Secured Party, Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(ef) Notwithstanding anything The Secured Party agrees that it will not give any entitlement order directing a disposition or transfer of Shares except (i) as expressly permitted by the PPV Transaction Documents or this Pledge Agreement or (ii) pursuant to the contrary in exercise of its rights as a secured party under the AgreementUCC following a Default Event that has occurred and is continuing.
(g) If a Default Event occurs, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or it shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, continuing unless (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% it is expressly waived by Secured Party in writing or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, it is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares cured in accordance with the restrictions set forth in Section 14 and terms of this Pledge Agreement or the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable PPV Transaction Documents prior to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not having been taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereofthis Section.
Appears in 1 contract
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Account, Collateral consisting of Shares with respect a value (as determined by the Calculation Agent) equal to the value (as determined by the Calculation Agent) of Pledgor's obligations hereunder and under any and all Secured Obligations to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreementa Default Event applies, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and or (ii) if sell such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof Collateral as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement Secured Obligations or hereunder, at public or private sale or at any broker’s 's board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory; or (iii) take any combination of the actions described in clauses (i) and (ii). Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s 's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s its true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) i. to demand, sue for, collect, receive and give acquittance for any and all monies due xxe or to become due upon or by virtue thereof,
(ii) . to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) . to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) . to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s 's prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes "reasonable authenticated notification notification" within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Xxxxxxx’s Pledgor's attorney acting under such power, or such attorney’s 's successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an the aggregate amount equal (or the value of any delivery or other performance) owed by Pledgor to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Eventall Secured Transactions; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement all Secured Transactions have been fully discharged or sufficient funds have been set aside by Secured Party, Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Samples: Pledge Agreement (Welsh Carson Anderson Stowe Viii Lp)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to paragraph 3(k) of the AgreementConfirmation) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreement, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Samples: Pledge Agreement (Sina Corp)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC Uniform Commercial Code (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Account, Collateral consisting of Shares with respect a value (as determined by the Calculation Agent) equal to the value (as determined by the Calculation Agent) of Pledgor's obligations hereunder and under any and all Secured Obligations to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreementa Default Event applies, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and or (ii) if sell such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof Collateral as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement Secured Obligations or hereunder, at public or private sale or at any broker’s 's board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory; or (iii) take any combination of the actions described in clauses (i) and (ii). Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s 's board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s its true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) i. to demand, sue for, collect, receive and give acquittance for any and all monies due dxx or to become due upon or by virtue thereof,
(ii) . to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) . to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) . to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s 's prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes "reasonable authenticated notification notification" within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Xxxxxxx’s Pledgor's attorney acting under such power, or such attorney’s 's successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an the aggregate amount equal (or the value of any delivery or other performance) owed by Pledgor to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Eventall Secured Transactions; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement all Secured Transactions have been fully discharged or sufficient funds have been set aside by Secured Party, Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Samples: Pledge Agreement (Welsh Carson Anderson Stowe Viii Lp)
Remedies upon Default Events. (a) If Subject to Section 7(b) below, if any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may:
(i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Account, Collateral consisting of Shares with respect a value sufficient to which the Representation and Agreement set forth satisfy in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of full all Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction AgreementObligations, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and ;
(ii) if sell such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof Collateral as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunderSecured Obligations, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory;
(iii) collect any amounts payable under the ISDA Receivable and apply such amounts against any Secured Obligation;
(iv) take any combination of the actions described in clauses (i), (ii) and (iii) above. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale sale, may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling sale price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) The Pledgor and the Secured Party agree that (i) the Secured Party shall not be entitled to exercise its remedies hereunder in a manner that would cause it to become at any one time the beneficial owner of more than 9.9% of the common shares of the Issuer then outstanding and (ii) the Secured Party will not sell, in any single transaction, to one or more purchasers, an amount of Shares representing Shares in excess of 9.9% of the common shares of the Issuer then outstanding. The Pledgor hereby (x) acknowledges that selling or otherwise disposing of the Collateral in accordance with the restrictions set forth in this Section 7(b) may result in prices and terms less favorable to the Secured Party than those that could be obtained by selling or otherwise disposing of the Shares in a single transaction to a single purchaser and (y) agrees and acknowledges that no method of sale or other disposition of Collateral shall be deemed commercially unreasonable because of any action taken or not taken by the Secured Party to comply with such restrictions.
(c) Pledgor hereby irrevocably appoints Secured Party Pledgor’s its true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) i. to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
(ii) . to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) . to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) . to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes “reasonable authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. Pledgor and Secured Party hereby acknowledge and agree that the Shares are of a type (or are convertible into securities of a type) customarily sold on a recognized market.
(cd) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(de) In the case of If a Default EventEvent shall have occurred and be continuing, Secured Party may proceed to realize upon the security interest Security Interests in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.;
Appears in 1 contract
Samples: Pledge Agreement (Directv)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party CSFB may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to the Agreement) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction Agreement, whereupon Secured Party shall hold such Shares absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor Counterparty under the Transaction Agreement or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Xxxxxxx, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor Counterparty hereby irrevocably appoints Secured Party Pledgor’s CSFB as Counterparty's true and lawful attorneyattorney (which power of attorney is coupled with an interest), with full power of substitution, in the name of PledgorCounterparty, Secured Party CSFB or otherwise, for the sole use and benefit of Secured PartyCSFB, but at the expense of PledgorCounterparty, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue for, collect, receive and give acquittance for any and axx all monies due or to become due upon or by virtue thereof,;
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,;
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party CSFB were the absolute owner thereof (includingand in connection therewith, without limitationto make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the giving of property, and all instructions and entitlement orders in respect thereof)of the property thus to be (or that is being or has been) sold, transferred, assigned or otherwise dealt in; and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party CSFB shall give Pledgor Counterparty not less than one day’s 's prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party CSFB and Pledgor Counterparty agree that such notice constitutes "reasonable authenticated notification notification" within the meaning of Section 9-611 611(b) of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Xxxxxxx’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) In the case of a Default Event, Secured Party may proceed to realize upon the security interest in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
Appears in 1 contract
Samples: Confirmation Agreement (Internet Capital Group Inc)
Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuingcontinuing or an Early Termination Date with respect to a Default Event shall have occurred or been designated, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) ), including any rights to convert any Notes into Shares when it is commercially reasonable to do so, and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of lawlaw (it being understood that at least one New York Business Day’s prior written notice shall suffice), shall: (i) deliver or cause to be delivered to itself or to an affiliate of Secured Party designated by Secured Party from the Collateral Account all Collateral consisting of Shares Notes with respect to which the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares Notes with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant to paragraph 3(j) of the AgreementConfirmation) on the related Early Termination Date or the date on which the Cancellation Amount is due, as the case may be, in whole or partialpartial satisfaction, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares Notes under the Transaction Agreement, whereupon Secured Party shall hold such Shares Notes absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and (ii) if such delivery shall be insufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof as may be necessary to generate proceeds sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunder, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory. Pledgor covenants and agrees that it will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, exchange and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuingcontinuing or after an Early Termination Date with respect to a Default Event shall have occurred or been designated, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with respect thereto,
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that . The Secured Party shall give and Pledgor not less than one day’s prior written notice of agree that the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is Shares are of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(c) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Xxxxxxx’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(d) Any power of attorney granted hereunder shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which Pledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Agreement.
(e) In the case of a Default EventEvent or a related Early Termination Date, Secured Party may proceed to realize upon the security interest in the Collateral Security Interests against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral; second, to the payment to Secured Party of an amount equal to the Close-out Amount Loss of Secured Party or the Cancellation Amount, as the case may be, and any other amounts owing to the Secured Party under the Transaction Agreement or hereunder as a result of such Default Event; finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement have been fully discharged or sufficient funds have been set aside by Secured Party, at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(e) Notwithstanding anything to the contrary in the Agreement, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares in accordance with the restrictions set forth in Section 14 and the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereof.
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Remedies upon Default Events. (a) If any Default Event shall have occurred and be continuing, Secured Party may exercise all the rights of a secured party under the UCC (whether or not in effect in the jurisdiction where such rights are exercised) and, in addition, without being required to give any notice, except as herein provided or as may be required by mandatory provisions of law, shall: may:
(i) deliver purchase or cause to be delivered to itself or to purchased by an affiliate of Secured Party designated by Secured Party from the Collateral Account all Account, Collateral consisting of Shares or other securities with respect to which a market value, as reasonably determined by the Representation and Agreement set forth in Section 9.11 of the Equity Definitions (as modified in the Transaction Agreement) are true and satisfied (or, at the absolute discretion of Secured Party, Shares with respect to which such Representation and Agreement are not true or satisfied) (but not in excess of the number thereof that Pledgor is obligated to deliver pursuant up to the Agreement) on value sufficient to satisfy in full all Secured Obligations then due and payable, and set off against or apply to the related Early Termination Date or Secured Party’s obligation to pay the date on which purchase price, the Cancellation Amount is due, as the case may be, in whole or partial, as the case may be, satisfaction of Pledgor’s obligations to deliver Shares under the Transaction AgreementSecured Obligations then due and payable, whereupon Secured Party shall hold such Shares or other securities absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and Pledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted; and ;
(ii) if such delivery shall be insufficient to satisfy in full all sell or cause the sale of the obligations of Pledgor under the Transaction Agreement or hereunder, sell all of the remaining Collateral, or such lesser portion thereof any Collateral as may be necessary to generate proceeds up to the amount sufficient to satisfy in full all of the obligations of Pledgor under the Transaction Agreement or hereunderSecured Obligations, at public or private sale or at any broker’s board or on any securities exchange, for cash, upon credit or for future delivery, and at such price or prices as Secured Party may deem satisfactory;
(iii) apply any Cash on deposit in the Collateral Account to any Secured Obligation; and
(iv) take any combination of the actions described in clauses (i) through (iii) above; provided that Secured Party shall give Pledgor not less than three day’s prior written notice of the time and place of any delivery, sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes “reasonable authenticated notification of disposition” within the meaning of Section 9-611 of the UCC. Pledgor and Secured Party hereby acknowledge and agree that the Shares are of a type customarily sold on a recognized market. Pledgor covenants and agrees that it Pledgor will execute and deliver such documents and take such other action as Secured Party deems necessary or advisable in order that any such sale may be made in compliance with law. Upon any such sale Secured Party shall have the right to deliver, assign and transfer to the buyer thereof the Collateral so sold. Each buyer at any such sale shall hold the Collateral so sold absolutely and free from any claim or right of whatsoever kind, including any equity or right of redemption of Pledgor that may be waived or any other right or claim of Pledgor, and XxxxxxxPledgor, to the extent permitted by law, hereby specifically waives all rights of redemption, stay or appraisal that Pledgor has or may have under any law now existing or hereafter adopted. The notice (if any) of such sale required by Section 9-611 of the UCC shall (1) in case of a public sale, state the time and place fixed for such sale, (2) in case of sale at a broker’s board or on a securities exchange, state the board or exchange at which such sale is to be made and the day on which the Collateral, or the portion thereof so being sold, will first be offered for sale at such board or exchange, and (3) in the case of a private sale, state the day after which such sale may be consummated. Any such public sale shall be held at such time or times within ordinary business hours and at such place or places as Secured Party may fix in the notice of such sale. At any such sale the Collateral may be sold in one lot as an entirety or in separate parcels, as Secured Party may determine. Secured Party shall not be obligated to make any such sale pursuant to any such notice. Secured Party may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at the time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Secured Party until the selling sale price is paid by the buyer thereof, but Secured Party shall not incur any liability in case of the failure of such buyer to take up and pay for the Collateral so sold and, in case of any such failure, such Collateral may again be sold upon like notice. Secured Party, instead of exercising the power of sale herein conferred upon it, may proceed by a suit or suits at law or in equity to foreclose the Security Interests and sell the Collateral, or any portion thereof, under a judgment or decree of a court or courts of competent jurisdiction.
(b) Pledgor and Secured Party agree that Secured Party shall not be entitled to exercise its rights, including, without limitation, voting rights, and remedies hereunder in a manner that would cause Secured Party or its affiliates, or any “group” (within the meaning of Section 13 of the Exchange Act and the rules promulgated thereunder) that includes (or may be deemed to include) Secured Party or its affiliates, to become at any one time the beneficial owner, within the meaning of Section 13 or Section 16 of the Exchange Act, of more than 9.0% of the Shares of the Issuer then outstanding. Pledgor hereby (i) acknowledges that selling or otherwise disposing of the Collateral in accordance with the restriction set forth in this Section 7(b) may result in prices and terms less favorable to Secured Party than those that could be obtained by selling or otherwise disposing of the Collateral without regard to such restriction and (ii) agrees and acknowledges that no method of sale or other disposition of Collateral shall be deemed commercially unreasonable because of any action taken or not taken by Secured Party to comply with such restrictions.
(c) Pledgor hereby irrevocably appoints Secured Party Pledgor’s true and lawful attorney, with full power of substitution, in the name of Pledgor, Secured Party or otherwise, for the sole use and benefit of Secured Party, but at the expense of Pledgor, to the extent permitted by law, to exercise, at any time and from time to time while a Default Event has occurred and is continuing, all or any of the following powers with respect to all or any of the Collateral:
(i) to demand, sue xxx for, collect, receive and give acquittance for any and all monies due or to become due upon or by virtue thereof,;
(ii) to settle, compromise, compound, prosecute or defend any action or proceeding with in respect thereto,thereof;
(iii) to sell, transfer, assign or otherwise deal in or with the same or the proceeds or avails thereof, as fully and effectually as if Secured Party were the absolute owner thereof (including, without limitation, the giving of instructions and entitlement orders in respect thereof), ; and
(iv) to extend the time of payment of any or all thereof and to make any allowance and other adjustments with reference thereto; provided that Secured Party shall give Pledgor not less than one day’s prior written notice of the time and place of any sale or other intended disposition of any of the Collateral, except any Collateral that threatens to decline speedily in value, including, without limitation, equity securities, or is of a type customarily sold on a recognized market. Secured Party and Pledgor agree that such notice constitutes reasonable authenticated notification within the meaning of Section 9-611 of the UCC.
(cd) Upon any delivery or sale of all or any part of any Collateral made either under the power of delivery or sale given hereunder or under judgment or decree in any judicial proceedings for foreclosure or otherwise for the enforcement of this Pledge Agreement, Secured Party is hereby irrevocably appointed the true and lawful attorney of Pledgor, in the name and stead of Pledgor, to make all necessary deeds, bills of sale, instruments of assignment, transfer or conveyance of the property, and all instructions and entitlement orders in respect of the property, thus delivered or sold. For that purpose Secured Party may execute all such documents, instruments, instructions and entitlement orders. This power of attorney shall be deemed coupled with an interest, and Pledgor hereby ratifies and confirms that which XxxxxxxPledgor’s attorney acting under such power, or such attorney’s successors or agents, shall lawfully do by virtue of this Pledge Agreement. If so requested by Secured Party or by any buyer of the Collateral or a portion thereof, Pledgor shall further ratify and confirm any such delivery or sale by executing and delivering to Secured Party or to such buyer or buyers at the expense of Pledgor all proper deeds, bills of sale, instruments of assignment, conveyance or transfer, releases, instructions and entitlement orders as may be designated in any such request.
(de) In the case of If a Default EventEvent shall have occurred and be continuing, Secured Party may proceed to realize upon the security interest Security Interests in the Collateral against any one or more of the types of Collateral, at any time, as Secured Party shall determine in its sole discretion subject to the foregoing provisions of this Section 7. The proceeds of any sale of, or other realization upon, or other receipt from, any of the Collateral shall be applied by Secured Party in the following order of priorities: first, to the payment to Secured Party of the expenses of such sale or other realization, including reasonable compensation to the agents and counsel of Secured Party, and all expenses, liabilities and advances incurred or made by Secured Party in connection therewith, including brokerage fees in connection with the sale by Secured Party of any Collateral, and any expenses described in Section 5(e); second, to the payment to Secured Party of an the aggregate amount equal (or the value of any delivery or other performance) owed by Pledgor to the Close-out Amount of Secured Party or the Cancellation Amount, as the case may be, under the Transaction Agreement as a result of such Default EventSecured Obligations; and finally, if all of the obligations of Pledgor hereunder and under the Transaction Agreement Secured Obligations have been fully discharged or sufficient funds have been set aside by Secured Party, Party at the request of Pledgor for the discharge thereof, any remaining proceeds shall be released to Pledgor.
(ef) Notwithstanding anything The Secured Party agrees that it will not give any entitlement order directing a disposition or transfer of Shares except (i) as expressly permitted by the Collar Transaction Documents or this Pledge Agreement or (ii) pursuant to the contrary in exercise of its rights as a secured party under the AgreementUCC following a Default Event that has occurred and is continuing.
(g) If a Default Event occurs, the Confirmation or herein, in no event shall Secured Party be entitled to receive, or it shall be deemed to receive, any Shares, exercise any right of Rehypothecation pursuant to this Agreement or be entitled to vote or exercise its remedies with respect to any Collateral Shares, to the extent that, continuing unless (i) immediately upon giving effect to such receipt of such Shares or such Rehypothecation or such vote or exercise of remedies, as applicable, (i) the Section 13 Percentage would be equal to or greater than 9.0% it is expressly waived by Secured Party in writing or (ii) the Share Amount would exceed the Applicable Share Limit (each such condition described in clauses (i) or (ii), an “Excess Ownership Position”). If any delivery owed to Secured Party under the Confirmation or hereunder, in whole or in part, as a result of Section 14 of the Confirmation or this Section, as applicable, it is prohibited, then the obligation of Pledgor to make such delivery shall not be extinguished and Pledgor shall make such delivery as promptly as practicable after, but in no event later than one Exchange Business Day after, Secured Party gives notice to Pledgor that such delivery would not result in the existence of an Excess Ownership Position, and Secured Party shall be entitled to exercise any right of Rehypothecation, vote or remedies immediately when such exercise would not result in the existing of an Excess Ownership Position. For the avoidance of doubt, this Section 7(e) shall not apply to the initial Rehypothecation of up to the Number of Shares in connection with the Transaction.
(f) Pledgor hereby (i) acknowledges that selling or otherwise disposing of Collateral Shares cured in accordance with the restrictions set forth in Section 14 and terms of this Pledge Agreement or the other provisions of the Confirmation and/or Section 7(e) hereof may result in prices and terms less favorable Collar Transaction Documents prior to Secured Party than those that could be obtained by selling or otherwise disposing of any such Shares at one time in a single transaction and (ii) agrees and acknowledges that no method of sale or other disposition of the available portion of any such Shares shall be deemed commercially unreasonable because of any action taken or not having been taken by Secured Party to comply with such restrictions. For the avoidance of doubt, the inability of Secured Party to acquire, receive or exercise rights with respect to Collateral Shares at any time as a result of an Excess Ownership Position (as defined in Section 7(e) above) shall not preclude Secured Party from taking such action at a later time when no Excess Ownership Position is then existing or would result under the Confirmation. Notwithstanding any provision of the Confirmation to the contrary, Secured Party shall not become the record or beneficial owner, or otherwise have any rights as a holder, of any Collateral Shares that Secured Party is not entitled to exercise any other remedies in respect of at any time until such time as Secured Party is permitted to exercise such remedies in respect thereof pursuant to the limitations set forth in Section 7(e) hereofthis Section.
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