REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, and covenants with, the Collateral Agent as follows: (i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account; (ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement; (iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect; (iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property; (v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time; (vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and (vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.
Appears in 4 contracts
Samples: Credit Agreement (Hut 8 Corp.), Credit Agreement (Hut 8 Corp.), Credit Agreement (Hut 8 Corp.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account The Pledgor has all requisite capacity, power and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented toauthority, and is not otherwise aware ofunder no legal restriction, any person (other than limitation or disability, to own and pledge the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;Collateral.
(ii) it The Pledgor has not granted full capacity, power and will not grantauthority to execute and deliver this Agreement and to perform his obligations hereunder. No other proceedings on the part of the Pledgor are necessary to authorize the consummation of the transactions contemplated hereby on behalf of the Pledgor. This Agreement has been duly and validly executed and delivered by the Pledgor and constitutes the valid and legally binding obligation of the Pledgor, enforceable against the Pledgor in accordance with its terms and conditions. No consents, approvals, orders or authorizations of, or permit to existregistration, declaration or filing with (other than as expressly contemplated hereunder), any security government or other interest in governmental agency is required by or any right or claim (including any adverse claim) with respect to the Collateral except those Pledgor in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement;hereby.
(iii) no authorizationThe Pledgor is or, approval or with respect to the Collateral described in clause (ii) of Section 1(a), not later than the time of the Pledgor’s acquisition thereof will be, the direct record and/or beneficial owner of the Stock. The Pledgor has and will have good, valid and marketable title thereto, free and clear of all Encumbrances other action bythan the security interest created by this Agreement and subject to the Voting Agreement and the Rollover Letter.
(iv) The Collateral is and will be duly and validly pledged to the Company in accordance with law, and no notice to or filing withthe Company has a good, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the valid, and perfected first lien on and security interest in the Collateral purported to be created in favor of and the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;proceeds thereof.
(v) Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, by Pledgor, will (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which the Pledgor will take is subject, or (B) result in a breach of, constitute a default under, result in the acceleration of, create in any person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which the Pledgor is a party or by which he is bound.
(vi) There is no action, claim, suit, proceeding or investigation pending, or to the knowledge of Pledgor, threatened against or affecting the Pledgor, this Agreement, or the transactions contemplated hereby, before or by any court, arbitrator or governmental authority which would reasonably be expected to adversely affect the Pledgor’s ability to perform its obligations under this Agreement or would reasonably be expected to adversely affect the value of the Collateral.
(vii) His full legal name used herein is the same as set forth on his driver license and his address used herein is his primary residency.
(b) Until all Secured Obligations have been paid and performed in full or until this Agreement is terminated pursuant to Section 8 hereof, Pledgor hereby covenants that, unless the Company otherwise consents in advance in writing:
(i) The Pledgor authorizes the Company to file one or more financing statements perfecting the Company’s security interest in the Collateral and shall (A) at the request of the Company, execute, deliver and file any and all actions financing statements, continuation statements, stock powers, instruments, and other documents necessary or desirable desirable, in the Company’s reasonable judgment, to defend (i) title to create, perfect, preserve, validate or otherwise protect the Collateral and (ii) the security interest pledge of the Collateral Agent to the Company and the Company’s lien on and security interest in the Collateral and the first priority thereof, (B) maintain or cause to be maintained at all times the pledge of the Collateral to the Company and the Company’s lien on and security interest in the Collateral and the first priority thereof, and (C) defend the Collateral and the Company’s lien on and security interest therein and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;time claiming the same or any interest therein adverse to the Company, and pay pro rata all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) in connection with such defense.
(viii) the The Pledgor will shall not enter into sell, transfer, pledge, assign or otherwise dispose of any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in of the Collateral or the security interests created hereunder Sections 3.2 any interest therein, and 3.3 above; and
(vii) the Pledgor shall promptly deliver not create, incur, assume or suffer to exist any Encumbrance with respect to the Collateral Agent and Administrative Agent such documents relating or any interest therein (except pursuant hereto or pursuant to the Collateral Account as Voting Agreement and the Collateral Agent or Administrative Agent may reasonably requireRollover Letter).
Appears in 3 contracts
Samples: Pledge and Security Agreement (Perry Ellis International, Inc), Pledge and Security Agreement (Feldenkreis George), Pledge and Security Agreement (Perry Ellis International, Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants toto Pledgee, and covenants withwith Pledgee, the Collateral Agent as followsthat:
(ia) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and (ii) has not consented legal title to, the Pledged Shares listed on Exhibit A, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted such shares are and will not grantremain and all other shares of stock constituting Pledged Collateral will be, or permit to existfree and clear of all pledges, any liens, security or interests and other interest in or any right or claim (including any adverse claim) to encumbrances and restrictions whatsoever, except the Collateral except those contemplated liens and security interests created by this Agreement;
(iiib) Pledgor has full power, authority and legal right to execute the pledge provided for herein and to pledge the Pledged Shares and any additional Pledged Collateral to Pledgee, for the benefit of the Pledgee and the Lenders;
(c) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally;
(d) there are no outstanding options, warrants or other agreements with respect to the Pledged Shares other than as set forth in that certain Stockholders Agreement of the Pledgor dated as of the date hereof;
(e) the Pledged Shares have been, and all additional Pledged Collateral constituting capital stock will be, duly and validly authorized and issued, and are or will be fully paid and non-assessable. The Pledged Shares listed on Exhibit A constitute all of the issued and outstanding capital stock of Panther Sub;
(f) no authorizationconsent, approval or other action by, and no notice to authorization of or designation or filing with, with any governmental authority on the part of Pledgor is required in connection with the pledge and security interest granted under this Agreement, or regulatory body the exercise by Pledgee of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the charter or by-laws of Pledgor or Panther Sub or of any securities issued by Borrower or of any mortgage, indenture, lease, contract, or other agreement, instrument or undertaking to which Pledgor or Panther Sub is a party or which purports to be binding upon Pledgor or Panther Sub or upon any of their respective assets, and will not result in the United States is required for either creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of Pledgor or Panther Sub except as contemplated by this Agreement; and
(ah) the grant by the Pledgor pledge, assignment and delivery to Pledgee of the Pledged Shares pursuant to this Agreement creates a valid first lien on and a first perfected security interest in the Collateral purported to be created Pledged Shares and the proceeds thereof in favor of Pledgee, for the Collateral Agent hereunder benefit of Pledgee and the Lenders, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or (b) the exercise by the Collateral Agent encumbrance or the Administrative Agent of to any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary agreement purporting to perfect the grant to any third party a security interest on in the Collateral granted by property or assets of Pledgor which would include the Pledged Shares. Pledgor covenants and agrees that it will defend Pledgee’s right, title and security interest in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Pledged Shares and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirewhomsoever.
Appears in 3 contracts
Samples: Master Reaffirmation Agreement, Master Reaffirmation Agreement (Panther Expedited Services, Inc.), Master Reaffirmation Agreement (Panther Expedited Services, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The For so long as this Agreement shall remain in effect, the Pledgor represents and represents, warrants to, and covenants with, to and with the Collateral Administrative Agent as follows:
5.01 The Pledgor has the requisite power, authority and legal right to execute, deliver and perform its obligations under this Agreement and to pledge and grant a security interest in all of the Securities Collateral. The execution, delivery and performance of this Agreement, and the pledge of and granting of a security interest in the Securities Collateral hereunder, have been duly authorized by all necessary corporate or other action of the Pledgor and do not contravene (i) any law, rule or regulation, (ii) any provision of the Pledgor's charter documents or by-laws, (iii) any judgment, decree or order of any arbitrator, court or other adjudicatory or regulatory body or (iv) any agreement or instrument to which the Pledgor is a party or by which it or any of its property is bound or affected or constitute a default thereunder other than those, in the case of clauses (i) and (iv), that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
5.02 The Pledgor is the sole entitlement holder (within the meaning owner, legally, beneficially and of Section 8-102(a)(7) record, of all of the UCC) Scheduled Securities free of any Encumbrances, except for Encumbrances specifically permitted under the terms of the Collateral Account Loan Agreement. All of the Scheduled Securities have been duly and the Collateral Account Property from time validly issued, and are fully paid and nonassessable.
5.03 The Pledgor covenants that, with respect to time credited any Additional Securities that it may pledge to the Collateral Account Administrative Agent in the future, at the time of such pledge, (a) the Pledgor will be the legal, beneficial and record owner of such Additional Securities free of any Encumbrances, except for Encumbrances specifically permitted under the terms of the Loan Agreement, (b) the Pledgor will have the requisite legal right, power and authority to pledge same to the Administrative Agent hereunder and (c) all such Additional Securities shall be duly and validly issued, and will be fully paid and nonassessable.
5.04 Schedule 1 accurately sets forth as to each Issuer of Scheduled Securities (i) the total number of issued and outstanding Securities of such Issuer and (ii) has not consented to, and the total number of such Securities that have been pledged hereunder. With respect to each Foreign Subsidiary whose capital stock is not otherwise aware of, any person (other than pledged hereunder by the Secured Parties) having Control over, or any other interest inPledgor, the Collateral Account Property credited Pledgor has pledged stock representing 65% of the total combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote.
5.05 Upon execution and delivery of the Collateral Account;
(ii) it has not granted Loan Documents by the parties thereto and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant delivery by the Pledgor of the Scheduled Securities and related certificates to the Administrative Agent accompanied by instruments of transfer or assignment duly executed in blank in form and substance reasonably satisfactory to the Administrative Agent or, if a security interest in the Collateral purported to be created in favor any of the Securities Collateral Agent hereunder or (b) may not under applicable law be perfected by possession, then upon the exercise by the Collateral Agent or filing of appropriate Financing Statements, the Administrative Agent of any rights or remedies in respect of the Collateralwill obtain a valid first lien on, except for (i) filings and other actions necessary to perfect the perfected security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreementin, the Custody AgreementSecurities Collateral and the Proceeds thereof, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating subject to the Collateral Account or any Collateral Account Property;no prior Encumbrance.
(v) the 5.06 The Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Administrative Agent in the Securities Collateral and against the first priority thereof against any Lien, in each case against all competing claims and demands of all persons at any time;other Persons, other than claims or demands related to Encumbrances specifically permitted under the terms of the Loan Agreement.
(vi) 5.07 Except as may be permitted by the Loan Agreement, the Pledgor will not enter into (a) sell or otherwise dispose of, grant any agreement option with respect to, or take mortgage, pledge (except pursuant to this Agreement) or cause to be taken otherwise encumber any action that could impair of the Collateral Agent's rights Securities Collateral, any shares in the Collateral capital stock of any Subsidiary, or any membership or other ownership interest therein, or (b) consent to or approve the issuance of (i) any additional shares of any class of capital stock of any Subsidiary, or the security issuance of any membership or other ownership interest in any Subsidiary; (ii) any securities convertible voluntarily by the holder thereof or automatically upon the occurrence or nonoccurrence of any event or condition into, or exchangeable for, any such shares or interests; or (iii) any warrants, options, rights, or other commitments entitling any person to purchase or otherwise acquire any such shares or interests created hereunder Sections 3.2 except pursuant to an employee stock option plan of such Subsidiary authorizing the grant of no more than 30% of such Subsidiary's shares or interests.
5.08 The Pledgor, at its sole cost and 3.3 above; and
(vii) expense, will execute and deliver all such instruments, and take all such other action as the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating from time to the Collateral Account as the Collateral Agent or Administrative Agent time may reasonably requirerequest, in order to further effectuate the purposes of this Agreement and to carry out the terms hereof.
Appears in 3 contracts
Samples: Revolving Credit Agreement (Gamestop Corp), Securities Collateral Pledge Agreement (Gamestop Corp), Securities Collateral Pledge Agreement (Gamestop Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsto Secured Party that:
(i) it (i) Pledgor is a limited liability company duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCC) State of Colorado and has the Collateral Account full legal power and authority to own the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;Collateral.
(ii) it Pledgor has not granted all requisite capacity, power and will not grantauthority, being under no legal restriction, limitation or permit disability, to exist, any security or other interest in or any right or claim (including any adverse claim) to own the Collateral except those contemplated by this Agreement;Collateral.
(iii) no authorizationPledgor has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution, approval delivery and performance of this Agreement has been duly and validly authorized by the board of managers of Pledgor. No other corporate proceedings on the part of Pledgor are necessary to authorize the consummation of the transactions contemplated hereby on behalf of Pledgor. This Agreement has been duly and validly executed and delivered by Pledgor and constitutes the valid and legally binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, except that such enforceability may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other action bysimilar laws affecting or relating to enforcement or creditors’ rights generally and (b) general equitable principles. No consents, and no notice to approvals, orders or authorizations of, or registration, declaration or filing with, any government or governmental authority or regulatory body in the United States agency is required for either (a) by or with respect to Pledgor in connection with the grant by execution and delivery of this Agreement or the Pledgor consummation of the transactions contemplated hereby.
(iv) Pledgor is the direct record and beneficial owner of each OP Unit comprising a portion of the Collateral. Pledgor has and will have good, valid and marketable title to each component of the Collateral, free and clear of all Encumbrances other than the security interest created by this Agreement and the Resale Restrictions.
(v) The Collateral is and will be duly and validly pledged to Secured Party in accordance with law, and Secured Party has and will have a good, valid, and perfected first lien on and security interest in the Collateral purported Collateral.
(vi) Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, by Pledgor, will (A) violate any constitution, statute, treaty, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to be created which Pledgor is subject or any provision of its certificate of formation, limited liability company agreement or other organizational documents, as applicable, or (B) result in favor a violation or breach of, constitute a default (or an event which, with or without notice or passage of time or both, would constitute a default) under, result in the acceleration of, create in any person the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Pledgor is a party or by which Pledgor is bound or to which any of its assets are subject.
(vii) There is no action, claim, suit, proceeding or investigation pending, or to the knowledge of Pledgor, threatened or reasonably anticipated, against or affecting Pledgor, this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or governmental authority which might adversely affect Pledgor’s ability to perform its obligations under this Agreement or might adversely affect the value of the Collateral.
(b) Until all Secured Obligations have been irrevocably paid and performed in full to Secured Party, Pledgor hereby covenants that, unless Secured Party otherwise consents in advance in writing:
(i) Pledgor shall (A) at the request of Secured Party, execute, deliver and file any and all financing statements, continuation statements, instruments (of transfer and otherwise), and other documents necessary or desirable, in Secured Party’s opinion, to create, perfect, preserve, validate or otherwise protect the pledge of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings to Secured Party and other actions necessary to perfect the Secured Party’s lien on and security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof, (B) maintain or cause to be maintained at all times the pledge of the Collateral to Secured Party and Secured Party’s lien on and security interest in the Collateral and the first priority thereof, and (C) defend the Collateral and Secured Party’s lien on and security interest therein and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;time claiming the same or any interest therein adverse to Secured Party, and pay all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) in connection with such defense.
(viii) the Pledgor will shall not enter into sell, transfer, pledge, assign or otherwise dispose of any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in of the Collateral or any interest therein (and the security interests created hereunder Sections 3.2 inclusion in “Collateral” of proceeds shall not be an authorization of any such sale, transfer, pledge, assignment or other disposal), and 3.3 above; and
(vii) the Pledgor shall promptly deliver not create, incur, assume or suffer to exist any Encumbrance with respect to the Collateral Agent and Administrative Agent such documents relating to or any interest therein (except pursuant hereto).
(iii) Pledgor shall not take any action in connection with the Collateral Account or otherwise which would impair the value of the interests or rights of Pledgor therein or which would impair the interests or rights of Secured Party therein or with respect thereto.
(iv) Pledgor shall not change its name, type of organization, jurisdiction of organization or principal address without first (a) providing at least ten (10) days’ advance notice to Secured Party and (b) taking such actions as may be requested by Secured Party for the Collateral Agent or Administrative Agent may reasonably requirepurpose of ensuring the continued effectiveness, perfection and priority of the Pledge.
Appears in 3 contracts
Samples: Pledge Agreement, Pledge and Security Agreement (Dividend Capital Trust Inc), Pledge and Security Agreement (DCT Industrial Trust Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor will take does not violate any and all actions necessary provision of any applicable law or desirable to defend (i) title to the Collateral and (ii) the security interest regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral Agent certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other material agreement or material instrument to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will not result in the Collateral and creation or imposition of any lien or encumbrance on any of the first priority thereof against assets of such Pledgor or any Lien, in each case against all claims and demands of all persons at any time;
its Subsidiaries except as contemplated by this Agreement; (vi) all the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.shares of Stock of Subsidiaries
Appears in 2 contracts
Samples: Pledge Agreement (Therma Wave Inc), Pledge Agreement (Therma Wave Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants toto Pledgee, and covenants withwith Pledgee, the Collateral Agent as followsthat:
(ia) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and (ii) has not consented legal title to, the Pledged Shares listed on Exhibit A, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted such shares are and will not grantremain and all other shares of stock constituting Pledged Collateral will be, or permit to existfree and clear of all pledges, any liens, security or interests and other interest in or any right or claim (including any adverse claim) to encumbrances and restrictions whatsoever, except the Collateral except those contemplated liens and security interests created by this Agreement;
(iiib) Pledgor has full power, authority and legal right to execute the pledge provided for herein and to pledge the Pledged Shares and any additional Pledged Collateral to Pledgee, for the benefit of the Pledgee and the Lenders;
(c) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally;
(d) there are no outstanding options, warrants or other agreements with respect to the Pledged Shares other than as set forth in that certain Stockholders Agreement of the Pledgor dated as of the date hereof;
(e) the Pledged Shares have been, and all additional Pledged Collateral constituting capital stock will be, duly and validly authorized and issued, and are or will be fully paid and non-assessable. The Pledged Shares listed on Exhibit A constitute all of the issued and outstanding capital stock of Borrower;
(f) no authorizationconsent, approval or other action by, and no notice to authorization of or designation or filing with, with any governmental authority on the part of Pledgor is required in connection with the pledge and security interest granted under this Agreement, or regulatory body the exercise by Pledgee of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the charter or by-laws of Pledgor or Borrower or of any securities issued by Borrower or of any mortgage, indenture, lease, contract, or other agreement, instrument or undertaking to which Pledgor or Borrower is a party or which purports to be binding upon Pledgor or Borrower or upon any of their respective assets, and will not result in the United States is required for either creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of Pledgor or Borrower except as contemplated by this Agreement; and
(ah) the grant by the Pledgor pledge, assignment and delivery to Pledgee of the Pledged Shares pursuant to this Agreement creates a valid first lien on and a first perfected security interest in the Collateral purported to be created Pledged Shares and the proceeds thereof in favor of Pledgee, for the Collateral Agent hereunder benefit of Pledgee and the Lenders, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or (b) the exercise by the Collateral Agent encumbrance or the Administrative Agent of to any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary agreement purporting to perfect the grant to any third party a security interest on in the Collateral granted by property or assets of Pledgor which would include the Pledged Shares. Pledgor covenants and agrees that it will defend Pledgee’s right, title and security interest in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Pledged Shares and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirewhomsoever.
Appears in 2 contracts
Samples: Master Reaffirmation Agreement, Master Reaffirmation Agreement (Panther Expedited Services, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, to the Collateral Agent Secured Parties as follows:
(ia) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and (ii) has not consented good and marketable title to, his Shares pledged hereunder, free of any and is not otherwise aware ofall liens, any person (other than the Secured Parties) having Control overcharges, or any other interest in, the Collateral Account Property credited to the Collateral Accountencumbrances and security interests of every kind and nature;
(iib) it Pledgor has not granted good right and will not grant, legal authority to pledge the Shares owned by such Pledgor in the manner hereby done or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreementcontemplated;
(iiic) no No authorization, approval approval, or other action by, and no notice to or filing with, any third party, governmental authority or regulatory body in the United States is required for either the validity of the pledge by Pledgor of his Shares pursuant to this Agreement or for the execution, delivery or performance of this Agreement by Pledgor;
(ad) This Agreement constitutes the grant by legal, valid and binding obligation of Pledgor, enforceable against the Pledgor of in accordance with its terms, and the pledge and security interest effected hereby is effective to vest in the Collateral purported to be created Secured Parties their rights in favor of the Collateral Agent hereunder Shares as set forth herein;
(e) There are no existing purchase agreements, warrants, options, or (b) the exercise by the Collateral Agent other rights, agreements, arrangements or the Administrative Agent commitments of any character (whether or not exercisable), or obligations (whether formal or informal, written or oral, firm or contingent) or restrictions of any nature (other than restrictions on transferability under federal securities laws), relating to his Shares;
(f) Such Pledgor is not a party to any agreement, arrangement or understanding, written or oral, creating rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor any his Shares in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person or entity or relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest voting of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 abovehis Shares; and
(viig) Such Pledgor’s Shares represent the Pledgor’s entire ownership interest in the Company. All representations, warranties and covenants made by each Pledgor contained in this Agreement shall promptly deliver to survive the Collateral Agent execution, delivery and Administrative Agent such documents relating to performance of this Agreement until the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireTermination Date.
Appears in 2 contracts
Samples: Note Purchase Agreement (China SLP Filtration Technology, Inc.), Stock Pledge Agreement (Perpetual Technologies, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants tothat: (a) on the date of delivery to Lender or its designee of any Pledged Bonds in accordance with Section 2 hereof, no other Person will have any right, title or interest in and to the Pledged Bonds; (b) it has, and covenants withon the date of delivery to Lender or its designee of any Pledged Bonds, the Collateral Agent as follows:
(i) it (i) is the sole entitlement holder (within the meaning will have, full power, authority and legal right to pledge all of Section 8-102(a)(7) of the UCC) of the Collateral Account its right, title and the Collateral Account Property from time to time credited interest in and to the Collateral Account pursuant to this Agreement; (c) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable in accordance with its terms; (iid) has not consented no consent of any other party (including, without limitation, any creditors of Pledgor) and no consent, license, permit, approval or authorization of exemption by, notice or report to, and is not otherwise aware ofor registration, filing or declaration with, any person governmental authority, domestic or foreign, is required to be obtained by Pledgor in connection with the execution, delivery or performance of this Agreement; (other than e) the Secured Parties) having Control overexecution, delivery and performance of this Agreement will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the organizational documents of Pledgor or of any securities issued by Pledgor or of any mortgage, indenture, lease, contract, or other interest inagreement, the Collateral Account Property credited instrument or undertaking to the Collateral Account;
(ii) it has not granted which Pledgor is a party or which purports to be binding upon Pledgor or upon any of its assets and will not grantresult in the creation or imposition of any lien, charge or permit to exist, any encumbrance on or security or other interest in or any right or claim (including any adverse claim) to of the Collateral assets of Pledgor except those as contemplated by this Agreement;
; and (iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (af) the pledge, assignment and delivery of such Pledged Bonds and the Proceeds thereof are subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or encumbrance or to any agreement purporting to grant by the Pledgor of the to any third party a security interest in the Collateral purported to be created in favor property or assets of Pledgor which would include the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the CollateralPledged Bonds. Pledgor covenants and agrees that it will defend Lender’s right, except for (i) filings title and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) against the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor whomsoever; and covenants and agrees that it will not enter into any agreement or take or cause have like title to be taken any action that could impair and right to pledge to Lender the Collateral Agent's rights in the Collateral or the hereunder and will likewise defend Lender’s right thereto and security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireinterest therein.
Appears in 1 contract
Samples: Pledge and Security Agreement (Steadfast Income REIT, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor hereby represents and warrants to, and covenants with, the Collateral Agent to Pledgeholder as follows:
(i) it (i) is Except for restrictions created hereby and restrictions under applicable state, federal or other securities laws, there are no restrictions upon the sole entitlement holder (within the meaning transfer of Section 8-102(a)(7) any of the UCC) items of Collateral which Pledgor beneficially owns or in which Pledgor has any right or interest and Pledgor has the right and authority to pledge and grant a lien in each and all xx xxxxx xx the Collateral. All of the Collateral Account and the Collateral Account Property Pledged Stock is free from time to time credited to the Collateral Account and (ii) has not consented toall liens, and is not otherwise aware ofclaims, encumbrances, options, purchase money or other security interests or other charge or rights of any person or entity of any kind whatsoever (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;"Liens").
(ii) it has not granted and will not grantNo consent of any other person or party, or permit to existno consent, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorizationlicense, permit, approval or other action byauthorization of, and no exemption by notice to or filing withreport to, or registration, filing, declaration with any governmental authority or regulatory body in the United States body, foreign or domestic, is required for either (aA) for the grant by the Pledgor of the security interests by Pledgor or for the execution, delivery or performance of this Agreement by Pledgor, (B) for the perfection or exercise by Pledgeholder of his rights and remedies hereunder or (C) in an Event of Default(as defined hereunder) for the exercise by Pledgeholder of the voting or other rights provided for in this Agreement or the remedies provided hereunder in respect of the Collateral.
(iii) The Pledgor is the legal and beneficial owner of the Pledged Stock and has full power, authority and legal right to execute, deliver and perform its obligations under this Agreement and to pledge all of its rights, title and interest in and to the shares of the Pledged Stock.
(iv) This Agreement creates a valid security interest in the Collateral purported to be created in favor of Pledgeholder securing the Obligations, which security interest has been perfected and is prior to any and all Liens. None of the Collateral Agent hereunder constitutes "margin stock" as that term is used in Regulations G, T, U or X of the Board of Governors of the Federal Reserve System. This Agreement constitutes a legal, valid and binding obligation, enforceable against Pledgor in accordance with its terms, except as limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws affecting creditors' rights and remedies general or public policy.
(b) the exercise by the Collateral Agent The Pledged Stock has been duly and validly issued and is fully paid and non-assessable and no options, warrants or the Administrative Agent of other rights to acquire any rights or remedies in respect securities of the CollateralCompany have been issued or granted.
(c) Without the prior written consent of Pledgeholder, except for which consent may be withheld in the sole discretion of Pledgeholder, (i) filings and other actions necessary Pledgor will not allow the Company to perfect the security interest on the Collateral granted by the Pledgor in favor issue additional shares of its equity securities, any securities convertible into or exchangeable for any equity securities of the Collateral Agent as may be required under Section 3.5 aboveCompany or any options, warrants or other similar rights to acquire any of the equity securities of the Company; and (ii) Pledgor will not sell, transfer, assign or otherwise dispose of any or all of the approvalsCollateral or any interest therein (voluntarily or involuntarily, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given by operation of law or made and are in full force and effect;otherwise).
(ivd) other than If Pledgor receives any payment or property which it is not entitled to retain pursuant to the terms of this Agreement, such payment or property shall be received in trust for Pledgeholder, shall be segregated from other funds and property of Pledgor and shall immediately be delivered over to Pledgeholder.
(e) Pledgor hereby irrevocably appoints Pledgeholder, with full power of substitution, as Pledgor's attorney-in-fact, with full authority in the Custody Agreementplace and stead of Pledgor and in the name of Pledgor or otherwise, from time to time in the Credit Agreement Pledgeholder's discretion, to take any action and to execute any customary funds transfer, account instruments with Pledgeholder deems necessary or other customer agreement with advisable to accomplish the Custodian not inconsistent with purposes of this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledged LLC Interest. Pledgor represents and hereby represents, warrants to, and covenants with, the Collateral Agent as follows:
(ia) it 110th and 5th (i) is a limited liability company duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCC) State of the Collateral Account New York, and the Collateral Account Property from time has all company powers and all material governmental licenses, authorizations, consents and approvals required to time credited to the Collateral Account carry on its business as now conducted, and (ii) has not consented tofiled or caused to be filed all federal and state tax returns which are required to be filed and has paid or caused to be paid all amounts of taxes required to be paid by it, except for such taxes (x) as are being contested in good faith by proper proceedings and (y) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP.
(b) Pledgor is the sole member of 110th and 5th.
(c) Pledgor owns the Pledged LLC Interest free and clear of any Liens, other than Permitted Liens.
(d) Subject to Section 3 hereof, Pledgee has and shall have a valid, enforceable and perfected first priority Lien on the Pledged LLC Interest and the proceeds thereof. No security agreement, financing statement or other public notice with respect to all or any part of the Pledged LLC Interest is on file or of record in any public office, except as may be filed pursuant to the terms of this Agreement.
(e) Pledgor's membership interest in 110th and 5th has been duly authorized, validly issued and is fully paid and non-assessable. Pledgor has paid in full its capital contribution to 110th and 5th as recorded on the books and records of 110th and 5th, and Pledgor is not otherwise aware of, required to contribute any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited additional amounts to the Collateral Account;capital of 110th and 5th.
(iif) it has not granted No litigation, investigation or proceeding of or before any arbitrator or governmental authority is pending or, to the knowledge of the Pledgor, threatened by or against 110th and 5th or against any of its properties.
(g) Pledgor will not grantcreate, incur or permit to exist, will defend the Pledged LLC Interest against, and will take such other action as is necessary to remove, any security or other interest in or any right Lien or claim (including any adverse claim) on or to the Collateral except those contemplated Pledged LLC Interest, other than the Lien created by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transferother Permitted Liens, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to defend the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any right, title and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in Pledgee in, to and under the Collateral and Pledged LLC Interest against the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;whomsoever.
(vih) The assets of 110th and 5th are listed on Exhibit C hereto. Such assets are not and will not be subject to any Liens during the term of this Agreement, other than as contemplated by Section 3 above and Permitted Liens.
(i) There is no claim or liability, or to the knowledge of the Pledgor, any pending or threatened litigation, investigation, proceeding or arbitration affecting 110th and 5th or its properties or assets.
(j) The LLC Agreement does not and will not prohibit, restrict or otherwise interfere with Pledgee's rights under this Agreement, including, but not limited to Pledgee's right, in the event of a default by Pledgor, under Section 8 of this Agreement, to exercise any and all voting and other consensual rights pertaining to the Pledged LLC Interest and to receive and retain as additional collateral all distributions and interest in respect thereof.
(k) Pledgor will not enter into cause or permit 110th and 5th to violate the terms of the LLC Agreement. Except as contemplated by Section 3 above, Pledgor will not cause or permit 110th and 5th to (i) acquire any agreement assets, (ii) transfer or take dispose of all or cause any portion of any asset (including by license, lease, participation or encumbrance of any kind), (iii) incur any indebtedness, (iv) issue any guarantees, or (v) otherwise incur or contract to be taken incur any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireobligation of any kind whatsoever.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder (within legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account liens and security interests created by this Agreement and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Security Documents; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor does not violate any provision of any applicable law, statute, rule or regulation or of any order, writ, injunction or decree of any court or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will take not result in the creation or imposition of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement; (vi) all the shares of Stock of Subsidiaries of Silgan have been duly and all actions necessary or desirable to defend validly issued, are fully paid and non-assessable; (ivii) title each of the Pledged Notes constituting Intercompany Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the Collateral extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (iiviii) the pledge and assignment of the Securities pursuant to this Agreement, together with the delivery of the Securities pursuant to this Agreement (which delivery has been made), creates a valid and perfected first security interest of the Collateral Agent in the Collateral such Securities and the first priority proceeds thereof, subject to no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Securities and the proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Secured Creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants tothat: (a) it has, and covenants on the date of delivery to Agent of any Pledged Collateral will have, good and marketable title to the Pledged Collateral and full power, authority and legal right to pledge all of its right, title and interest in and to the Pledged Collateral pursuant to this Agreement; (b) this Agreement has been duly executed and delivered by Pledgor and constitutes a legal, valid, and binding obligation of Pledgor enforceable in accordance with its terms; (c) no consent of any other party (including, without limitation, creditors of Pledgor) and no consent, license, permit, approval or authorization of, exemption by, notice or report to or registration, filing or declaration with, any governmental authority, domestic or foreign, is required to be obtained by Pledgor in connection with the Collateral Agent as follows:
execution, delivery or performance of this Agreement; (id) it (i) is the sole entitlement holder (within the meaning execution, delivery and performance of Section 8-102(a)(7) this Agreement will not violate any provision of any applicable law, or of the UCC) certificate/articles of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented toorganization, and is not otherwise aware ofoperating agreement, any person (other than the Secured Parties) having Control overshareholders' agreement or any securityholders' agreement of Pledgor or GFNRC or of any mortgage, indenture, lease, contract, or other agreement, instrument, or undertaking to which Pledgor or GFNRC is a party or which purports to be binding upon Pledgor or GFNRC or upon any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted of their respective assets and will not grant, result in the creation or permit to exist, imposition of any security or other interest in or Lien on any right or claim (including any adverse claim) to of the Collateral assets of Pledgor except those as contemplated by this Agreement;
; (iiie) no authorizationexcept as provided by the Securities Act, approval or other action bythe rules and regulations promulgated thereunder, and state securities laws, there are no notice restrictions on the transferability of the Pledged Collateral to Agent or filing withwith respect to the foreclosure and transfer thereof by Agent or, if there are any such restrictions, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest all restrictions on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which such transferability have been duly obtainedwaived with respect to this assignment, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account pledge, and grant of a security interest to Agent and with respect to the foreclosure and transfer thereof by Agent; and (f) the pledge, assignment and delivery of such Pledged Collateral pursuant to this Agreement will create a valid first Lien on all right, title and interest of Pledgor in or other customer agreement with to such Pledged Collateral subject only to Permitted Liens, and the Custodian not inconsistent with this Agreementproceeds thereof, the Pledgor has not entered into and will not enter into subject to no prior Lien or to any agreement with purporting to grant to any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent third party a Lien in the property or assets of Pledgor which would include the Pledged Collateral. The Pledged Collateral is fully paid and nonassessable. Pledgor covenants and agrees that it will defend Agent's right, title and Lien on the Pledged Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons Persons whomsoever; and covenants and agrees that it will have like title to and the right to pledge any other property at any time;
(vi) the Pledgor time hereafter pledged to Agent as Pledged Collateral hereunder and will not enter into any agreement or take or cause to be taken any action that could impair the Collateral defend Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 right thereto and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireAgent's Lien thereon.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor does not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will take not result in the creation or imposition of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement; (vi) all the shares of Stock of Subsidiaries of Holdings have been duly and all actions necessary or desirable to defend validly issued, are fully paid and nonassessable; (ivii) title each of the Pledged Notes constituting Intercompany Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the Collateral extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (iiviii) the pledge and assignment of the Securities pursuant to this Agreement, together with the delivery of the Securities pursuant to this Agreement (which delivery has been made), creates a valid and perfected first security interest of the Collateral Agent in the Collateral such Securities and the first priority proceeds thereof, subject to no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Securities and the proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Secured Creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, to Secured Party as of the date hereof (which representations and covenants with, warranties shall survive the Collateral Agent execution and delivery of this Agreement as follows:):
(i) it (i) Pledgor is a corporation duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCCState of Delaware and has full power, right and authority to (A) of own the Collateral Account Pledged Collateral, (B) execute, deliver and perform this Agreement, (C) pledge the Collateral Account Property from time to time credited to the Collateral Account Pledged Collateral, and (iiD) has not consented to, grant the security interests and is not otherwise aware of, any person (other than liens in the Secured Parties) having Control over, or any other interest in, the Pledged Collateral Account Property credited pursuant to the Collateral Accountthis Agreement;
(ii) it the execution, delivery and performance by Pledgor of this Agreement and the consummation of the transactions contemplated hereby have been duly and validly authorized by all necessary actions on the part of Pledgor (none of which actions have been modified or rescinded, and all of which actions are in full force and effect), and this Agreement has been duly executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or in equity);
(iii) Pledgor is, or, with respect to the Pledged Collateral described in clause (ii) of the definition of Pledged Collateral not granted later than the time of delivery of certificates therefor will be, the direct record and beneficial owner of each share, security and other interest that comprises the Pledged Collateral, and Pledgor has and will not granthave good, or permit to existvalid and marketable title thereto, any free and clear of all Encumbrances other than the security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated interests created by this Agreement;
(iiiiv) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor all of the security interest Pledged Collateral has been, or, with respect to the Pledged Collateral described in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and clause (ii) of the approvalsdefinition of Pledged Collateral not later than the time of delivery of certificates therefor will be, consentsduly and validly issued, exemptions, authorizations, actions, notices fully paid and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Propertynonassessable;
(v) the Pledgor will take any and all actions necessary or desirable to defend Pledged Collateral described in clause (i) title to the Collateral and (ii) the security interest of the definition of Pledged Collateral Agent in constitutes 100% of the Collateral issued and the first priority thereof against any Lienoutstanding capital stock and other equity securities and ownership interests of Sunset (calculated on a fully diluted, in each case against all claims and demands of all persons at any timeas converted basis);
(vi) the Pledgor Pledged Collateral is and will not enter into any agreement or take or cause be duly and validly pledged to be taken any action that could impair the Collateral Agent's rights Secured Party in accordance with law, and Secured Party has a good, valid and perfected lien on and security interest in the Pledged Collateral or and the security interests created hereunder Sections 3.2 and 3.3 above; andproceeds thereof subject to no Encumbrances in favor of any other Person;
(vii) the execution, delivery and performance by Pledgor of this Agreement and the consummation of the transactions and the creation and granting of the security interests and liens contemplated thereby do not and will not (A) conflict with or violate the certificate of incorporation, by-laws, limited liability company agreement or similar documents of Pledgor or of any entity whose securities constitute part of the Pledged Collateral or any agreement by and between Pledgor or any such entity and its respective shareholders or equity owners or among any such shareholders or equity owners; (B) conflict with, result in a breach of, constitute a default of or an event of default under, or any event, fact, condition or circumstance which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default under, require any consent not obtained under, or result in or require the acceleration of any indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor or any entity whose securities constitute part of the Pledged Collateral is a party or by which Pledgor or any entity whose securities constitute part of the Pledged Collateral or any of its or their respective properties or assets are bound or subject; (C) conflict with or violate any provision of any applicable law, statute, rule, regulation, ordinance, license or tariff or any judgment, decree or order of any court or other governmental authority binding on or applicable to Pledgor or any entity whose securities constitute part of the Pledged Collateral or any of its or their respective properties or assets or any of the Pledged Collateral, or (D) result in the creation or imposition of any lien of any nature whatsoever upon any of the properties or assets of Pledgor or any entity whose securities constitute part of the Pledged Collateral except those contemplated hereunder;
(viii) no approval, consent or authorization of, filing, registration or qualification with, or other action by, Pledgor or any entity whose securities constitute part of the Pledged Collateral, any governmental authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor or consummation of the transactions or creation or granting of the liens and security interests contemplated hereby;
(ix) there is no action, claim, suit, proceeding or investigation pending or, to the knowledge of Pledgor, currently threatened against or affecting the Pledged Collateral, or Pledgor or any entity whose securities constitute part of the Pledged Collateral, or this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or governmental authority (a) that questions or could prevent the validity of this Agreement or the right or ability of Pledgor to enter into this Agreement or to consummate the transactions or create or grant the liens and security interests contemplated hereby, or (b) that could reasonably be expected to result in any change in the current equity ownership of Pledgor or any entity whose securities constitute part of the Pledged Collateral, nor is Pledgor aware that there is any basis for any of the foregoing;
(x) neither Pledgor nor any entity whose securities constitute part of the Pledged Collateral is (A) a party or subject to any judgment, order or decree or any agreement, document or instrument or subject to any restriction, any of which do or would materially adversely affect or prevent Pledgor’s ability to execute or deliver, or perform under, consummate the transactions contemplated by or to observe the covenants and agreements contained in, this Agreement; (B) in default or breach of the performance, observance or fulfillment of any obligation, covenant or condition contained in any agreement, document or instrument to which Pledgor or such entity is a party or by which any of its or their properties or assets are bound or subject, nor is there any event, fact, condition or circumstance which, with notice or passage of time, or both, would constitute or result in a conflict, breach, default or event of default under, any of the foregoing; or (C) a party or subject to any agreement (oral or written), document or instrument with respect to, or obligation to pay any, service or management fee with respect to the ownership, operation, leasing or performance of any of its business or any facility, nor is there any manager with respect to any such facility.
(xii) the obligations of Pledgor under this Agreement are not subordinated in any way to any other obligation of Pledgor or to the rights of any other Person.
(b) Until all Secured Obligations have been performed and satisfied in full and indefeasibly paid in full in cash , Pledgor hereby covenants that:
(A) Pledgor shall not sell, lease, transfer, pledge, assign or otherwise dispose of any of the Pledged Collateral or any interest therein, and (B) Pledgor shall not create, incur, assume or suffer to exist any Encumbrance upon, in, against or with respect to any of the Pledged Collateral or any interest therein (except pursuant hereto);
(ii) Pledgor shall, and shall cause each entity whose securities constitute part of the Pledged Collateral to: (A) preserve and maintain its existence in good standing; (B) comply with all laws, rules, statutes, regulations, ordinances and tariffs and orders of all applicable governmental authorities with respect to or applicable to its business, assets or operations or to any of the Pledged Collateral, and (C) promptly deliver upon the occurrence thereof and in any event within three (3) calendar days after Pledgor or any authorized officer of Pledgor obtains knowledge thereof, give written notice to Secured Party of (1) any action, suit, litigation, investigation, arbitration, dispute resolution proceeding or proceeding of any kind pending, instituted or threatened against or affecting, involving or relating to Pledgor, any such entity or the Pledged Collateral or any of their respective properties or assets, whether or not the claim is covered by insurance, to the Collateral Agent and Administrative Agent such documents relating extent the amount in controversy exceeds $10,000 or to the extent such litigation, suit, investigation, arbitration, dispute resolution proceeding or administrative proceeding seeks injunctive relief, (2) the filing, recording or assessment of any federal, state, local or foreign tax lien against the Pledged Collateral, Pledgor or any such entity, (3) the occurrence of any Event of Default, which notice shall specify the nature and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, (4) the occurrence or existence of any event, fact, circumstance or condition which constitutes or results in, or would constitute or result in with the giving of notice or passage of time or both, an Event of Default, which notice shall specify the nature and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, and (5) any other development, event, fact, circumstance, condition or action of any nature against or affecting Pledgor or any such entity or otherwise, which could reasonably be expected to have, lead to or result in an Event of Default, in each case describing the nature and status thereof and the action Pledgor proposes to take with respect thereto, and (6) any matter(s) affecting the value, enforceability or collectability of any of the Pledged Collateral, including, without limitation, claims or disputes asserted by any obligor or obligors in the amount of $10,000 or more, singly or in the aggregate, in existence at any one time.
(iii) Pledgor shall, and shall cause each entity whose securities constitute part of the Pledged Collateral Account to, (a) perform in accordance with its terms every contract, agreement or other arrangement (oral or written) to which it is a party or by which it or any of the Pledged Collateral is bound, (b) comply in all material respects with all laws, statutes, rules, regulations, ordinances and tariffs of any applicable governmental authority with respect or applicable to its business, assets or operations or to the Pledged Collateral, (c) pay, discharge or otherwise satisfy at or before maturity (subject where applicable to specified grace periods and, in the case of the trade payable, to ordinary course payment practices) all of its and/or their material obligations and liabilities of whatsoever nature, except when the amount or validity thereof is currently being contested in good faith by appropriate proceedings and it shall have provided for such reserves as Secured Party may deem proper and necessary in its sole discretion, (d) pay all taxes, assessments, fees, governmental charges, claims for labor, supplies, rent and all other obligations or liabilities of any kind of or imposed upon such person or upon the Pledged Collateral, except liabilities being contested in good faith and against which adequate reserves have been established, (e) obtain and deliver all required consents, approvals and agreements from such third parties as Secured Party shall determine are necessary or desirable in its sole discretion that are satisfactory to Secured Party with respect to (I) this Agreement and the transactions contemplated hereby and thereby, (II) claims against Pledgor, any such entity or any of the Pledged Collateral, and/or (III) any agreement (oral or written), consent, document or instrument to which any of them is a party or by which any of their properties or assets are bound or subject, (f) perform in accordance with its terms every contract, agreement or other arrangement (oral or written) to which it is a party or by which it or any of the Pledged Collateral Agent or Administrative Agent is bound, and (g) furnish to Secured Party such additional information as Secured Party may reasonably requirerequest from a credit or security perspective or otherwise from time to time;
(iv) Pledgor shall, and shall cause each entity whose securities constitute part of the Pledged Collateral to, keep true, complete and accurate books of record with respect to the Pledged Collateral in accordance with commercially reasonable business practices; and
(v) Pledgor shall not take or permit to be taken, or permit or cause any entity whose securities constitute part of the Pledged Collateral to take or permit to be taken, any action in connection with the Pledged Collateral or otherwise which would impair the value of the Pledged Collateral or any portion thereof or the value of the interests or rights of Pledgor or Secured Party therein or with respect thereto, including, without limitation, any amendment to or modification of the certificate of incorporation (or similar charter documents) or bylaws (or similar documents) of Pledgor or such Person which would result in or cause any of the foregoing.
Appears in 1 contract
Samples: Stock Pledge Agreement (Ibf Vi Guaranteed Income Fund)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor will take does not violate any and all actions necessary provision of any applicable law or desirable to defend (i) title to the Collateral and (ii) the security interest regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral Agent in the Collateral and the first priority thereof against certificate of incorporation or by-laws of such Pledgor or of any Liensecurities issued by such Pledgor or any of its Subsidiaries, in each case against all claims and demands or of all persons at any time;
(vi) the Pledgor will not enter into any mortgage, indenture, deed of trust, loan agreement, credit agreement or take any other material agreement or cause material instrument to be taken which such Pledgor or any action that could impair the Collateral Agent's rights in the Collateral of its Subsidiaries is a party or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.which
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and warrants to, to Secured Party as of the date hereof and covenants with, in all material respects as of the Collateral Agent date of each request for a Revolving Loan except as relates to an earlier date (which representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement) as follows:
(i) it has all requisite power, right and authority to (iA) own its Pledged Collateral, (B) execute, deliver and perform this Agreement, (C) pledge its Pledged Collateral, and (D) grant the security interests and Liens in its Pledged Collateral pursuant to this Agreement and otherwise consummate the transactions contemplated under this Agreement and the other Loan Documents to which it is the sole entitlement holder (within the meaning of Section 8-102(a)(7) a party, and such Pledgor is under no legal restriction or limitation that would prevent it from doing any of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountforegoing;
(ii) it this Agreement has not granted been duly executed and delivered by such Pledgor and constitutes the legal, valid and binding obligation of such Pledgor, enforceable against such Pledgor in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or in equity);
(iii) such Pledgor is the direct record and beneficial owner of its Pledged Collateral, and such Pledgor has and will not granthave good, valid and marketable title thereto, free and clear of all Liens other than the security interests created by this Agreement and Permitted Liens;
(iv) all of its Pledged Collateral has been duly authorized and validly issued, is fully paid and (other than with respect to limited liability company and partnership interests) non-assessable and none of its Pledged Collateral was issued in violation of the preemptive or subscription rights of any Person or of any agreement by which such Pledgor or any Issuer is bound;
(v) such Pledgor’s Pledged Collateral described on Schedule 1.1 attached hereto constitutes 100% of (1) the issued and outstanding Partnership Units of each Partnership, (2) the issued and outstanding LLC Units of each limited liability company Issuer, and (3) the issued and outstanding Pledged Shares of each corporate Issuer (other than, in each case, the Excluded Equity);
(vi) its Pledged Collateral is and will be duly and validly pledged to Secured Party in accordance with Applicable Law, and Secured Party has a good, valid and perfected first priority Lien on and security interest in its Pledged Collateral and the proceeds thereof subject to no Liens in favor of any other Person (except Permitted Liens), and no filing or other action will be necessary to perfect or protect such lien or security interest other than the filing of any financing statement with the appropriate secretary of state naming such Pledgor, as debtor, and Secured Party, as secured party, and describing its Pledged Collateral and delivery to Secured Party of any certificates evidencing its Pledged Collateral endorsed in blank;
(vii) no restrictions or conditions exist with respect to the transfer, voting or capital of any Pledged Collateral and no approval, consent or authorization of, filing, registration or qualification with, or permit to existother action by, any Issuer, any Governmental Authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by such Pledgor or consummation of the transactions or creation or granting of the Liens and security interests contemplated hereby and all documentary stamp and other taxes and fees owing in connection with the issuance transfer or pledge of its Pledged Collateral (or rights in respect thereof) have been paid;
(viii) the foregoing representations and warranties are made with the knowledge and intention that Secured Party is relying and will rely thereon, and such representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement and shall continue until this Agreement is terminated as provided herein;
(ix) such Pledgor has delivered to Secured Party all certificates and instruments evidencing its Pledged Collateral and all such certificates and instruments are valid and genuine and have not been altered; and
(x) as of the date hereof, other than with respect to any corporate Issuer: (1) no Issuer has elected the application of Article 8 of the UCC to apply to any of its Company Rights, and (2) no LLC Rights or Partnership Rights constitutes a “security” within the meaning of, and governed by, Article 8 of the UCC.
(b) Until all Obligations have been Paid in Full and the Loan Agreement has been terminated, each Pledgor hereby covenants that:
(i) Pledgor shall: (A) maintain, or cause to be maintained, at all times, the pledge of its Pledged Collateral to Secured Party and Secured Party’s perfected first priority lien on and security interest in its Pledged Collateral; (B) use commercially reasonable efforts to defend its Pledged Collateral and Secured Party’s security interest therein and perfected first priority lien thereon against all claims and demands (other than Permitted Liens) of all Persons at any time claiming the same or any interest therein adverse to Secured Party, and pay all reasonable costs, fees and expenses (including, without limitation, in-house documentation and diligence fees and legal expenses and reasonable attorneys’ fees and expenses) in connection with such defense, which may at Secured Party’s discretion be charged to such Pledgor’s account and added to the Obligations, and (C) if Secured Party so demands in writing in accordance with this Agreement to the extent entitled thereto pursuant to this Agreement or otherwise at any time during the continuance of an Event of Default, deliver all replacements, products and proceeds of, and dividends, distributions in property, returns of capital or other interest distributions made on or with respect to, its Pledged Collateral to Secured Party promptly upon receipt in or any right or claim a form and manner reasonably satisfactory to Secured Party;
(including any adverse claimii) Each Pledgor shall, and shall cause each Issuer to, keep correct and complete books of record with respect to its Pledged Collateral in accordance with commercially reasonable business practices;
(iii) Each Pledgor shall, and shall cause each Issuer to, take all necessary and appropriate commercially reasonable actions to ensure that (A) this Agreement and the Collateral except those contemplated by security interests and Liens created hereby are and remain perfected and enforceable against such Pledgor in accordance with its terms, and (B) such Pledgor complies with each of its covenants, agreements and obligations under this Agreement;
(iiiiv) no authorizationSuch Pledgor shall not take or permit to be taken, approval or other permit or cause any Issuer to take or permit to be taken, any action byin connection with its Pledged Collateral or otherwise which would reasonably be expected to impair the value of its Pledged Collateral or any portion thereof or the value of the interests or rights of such Pledgor or Secured Party therein or with respect thereto, and no notice including, without limitation, any amendment to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor modification of the security interest articles of incorporation or certificate of formation (or similar charter documents) or bylaws, operating agreement, partnership agreement, or limited liability company agreement (or similar governing documents) of such Person which would reasonably be expected to result in the Collateral purported to be created in favor or cause any of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Propertyforegoing;
(v) Except for the Pledgor will take any Pledged Shares, the Pledged Collateral is not and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons shall not at any timetime be evidenced by any certificates;
(vi) the No Pledgor will not enter into effect or permit any agreement or take or cause amendment to be taken any action that could impair of the Collateral Agent's rights in the Collateral LLC Agreements or the security interests created hereunder Sections 3.2 Partnership Agreements to elect the application of Article 8 of the UCC to apply to any of the LLC Rights or the Partnership Rights or elect to cause the LLC Rights or the Partnership Rights to constitute “securities” within the meaning of, and 3.3 abovegoverned by, Article 8 of the UCC; and
(vii) The certificates evidencing the Pledged Collateral shall at all times be valid and shall not be altered. The Pledged Collateral at all times shall be duly authorized, validly issued, fully paid and (other than with respect to partnership and limited liability company interests) non-assessable, and shall not be issued in violation of the pre-emptive or subscription rights of any Person or of any agreement by which any Pledgor or any Issuer is bound and shall promptly deliver not be subject to the Collateral Agent and Administrative Agent any restrictions with respect to transfer, voting or capital of such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePledged Collateral.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The For so long as this Agreement shall remain in effect, the Pledgor represents and represents, warrants to, and covenants with, to and with the Collateral Agent and the Lenders as follows:
5.01 The Pledgor has the requisite power, authority and legal right to execute, deliver and perform its obligations under this Agreement and to pledge and grant a security interest in all of the Securities Collateral. The execution, delivery and performance of this Agreement, and the pledge of and granting of a security interest in the Securities Collateral hereunder, have been duly authorized by all necessary corporate or other action of the Pledgor and do not contravene (i) any law, rule or regulation, (ii) any provision of the Pledgor's charter documents or by-laws, (iii) any judgment, decree or order of any arbitrator, court or other adjudicatory or regulatory body or (iv) any agreement or instrument to which the Pledgor is a party or by which it or any of its property is bound or affected or constitute a default thereunder.
5.02 Except as set forth on Schedule 5.02, the Pledgor is the owner, legally, beneficially and of record, of all of the Scheduled Securities free of any Encumbrances, except for Encumbrances specifically permitted under the terms of the Credit Agreement. All of the Scheduled Securities have been duly and validly issued, and are fully paid and nonassessable.
5.03 The Pledgor covenants that, with respect to any Additional Securities that it may pledge to the Agent in the future, at the time of such pledge, (a) the Pledgor will be the legal, beneficial and record owner of such Additional Securities free of any Encumbrances, except as set forth on Schedule 5.02 and for Encumbrances specifically permitted under the terms of the Credit Agreement, (b) the Pledgor will have the requisite legal right, power and authority to pledge same to the Agent hereunder and (c) all such Additional Securities shall be duly and validly issued, and will be fully paid and nonassessable.
5.04 Schedule 2 accurately sets forth as to each Issuer of Scheduled Securities (i) is the sole entitlement holder (within the meaning total number of Section 8-102(a)(7) issued and outstanding securities of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account such Issuer and (ii) has not consented to, the total number of such securities that have been pledged hereunder.
5.05 Upon execution and is not otherwise aware of, any person (other than delivery of the Secured Parties) having Control over, or any other interest in, Lender Agreements by the Collateral Account Property credited to parties thereto and the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant delivery by the Pledgor of the Scheduled Securities and related certificates to the Agent accompanied by instruments of transfer or assignment duly executed in blank in form and substance satisfactory to the Agent or, if a security interest in the Collateral purported to be created in favor any of the Securities Collateral may not under applicable law be perfected by possession, then upon the filing of appropriate financing statements, the Agent hereunder or (b) will obtain a valid first lien on, and perfected security interest in, the exercise by Securities Collateral and the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateralproceeds thereof, subject to no prior Encumbrance, except for (i) filings and other actions necessary to perfect the security interest as set forth on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;Schedule 5.02.
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the 5.06 The Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Securities Collateral and against the first priority thereof against any Lien, in each case against all competing claims and demands of all persons at any time;other Persons, other than claims or demands related to Encumbrances specifically permitted under the terms of the Credit Agreement.
(vi) 5.07 Except as may be permitted by the Credit Agreement, and as required by the Agreements set forth on Schedule 5.02, the Pledgor will not enter into (a) sell or otherwise dispose of, grant any agreement option with respect to, or take mortgage, pledge (except pursuant to this Agreement) or cause to be taken otherwise encumber any action that could impair of the Collateral Agent's rights Securities Collateral, any shares in the Collateral capital stock of any Issuer, or any membership or other ownership interest therein, or (b) consent to or approve the issuance of (i) any additional shares of any class of capital stock of any Issuer, or the security interests created hereunder Sections 3.2 issuance of any membership or other ownership interest in any Issuer; (ii) any securities convertible voluntarily by the holder thereof or automatically upon the occurrence or nonoccurrence of any event or condition into, or exchangeable for, any such shares or interests; or (iii) any warrants, options, rights, or other commitments entitling any person to purchase or otherwise acquire any such shares or interests.
5.08 The Pledgor, at its sole cost and 3.3 above; and
(vii) the Pledgor shall promptly expense, will execute and deliver to the Collateral Agent all such instruments, and Administrative Agent take all such documents relating to the Collateral Account other action as the Collateral Agent or Administrative Agent from time to time may reasonably requirerequest, in order to further effectuate the purposes of this Agreement and to carry out the terms hereof.
Appears in 1 contract
Samples: Securities Collateral Pledge Agreement (Green Mountain Coffee Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account legal, record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and has good and marketable title to, all Shares pledged by it hereunder; (ii) has not consented tono consent of any other party (including, and is not otherwise aware ofwith- out limitation, any person (other than stockholder or creditor of the Secured Parties) having Control over, Pledgor or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim of its Subsidiaries (including any adverse claimthe Pledged Company)) to the Collateral except those contemplated by this Agreement;
(iii) and no authorizationconsent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant to be obtained by the Pledgor in connection with the execution, delivery or performance of this Agreement, or in connection with the security interest exercise of its rights and remedies pursuant to this Agreement, except those which have been obtained or made or as may be required by laws affecting the offer and sale of securities generally in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) connection with the exercise by the Collateral Agent or the Administrative Agent Pledgee of any rights or certain of its remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, hereunder and (iiiii) all the approvals, consents, exemptions, authorizations, actions, notices and filings which Shares have been duly obtainedand validly issued, takenare fully paid and nonassessable. The Pledgor covenants and agrees that it will defend the Pledgee's right, given or made title and are security interest in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Shares and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and the Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. Pledgor hereby represents and warrants to and covenants and agrees with Lender with respect to Pledgor and the Pledged Collateral that:
(a) The Pledgor represents has all requisite power and warrants toauthority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby.
(b) This Agreement has been duly authorized, executed and delivered by Pledgor, is the legal, valid and binding obligation of Pledgor, and covenants is enforceable in accordance with its terms, subject, however, to bankruptcy, insolvency and other rights of creditors generally.
(c) The execution, delivery, observance and performance by Pledgor of this Agreement and the transactions contemplated hereby will not result in any violation of either or both of the Certificates of Formation, either or both of the Operating Agreements or of any applicable constitutional provision, law, statute, ordinance, rule or regulation, or of any judgment, decree or order applicable to Pledgor and will not conflict with, or cause a breach of, or default under, any agreement or other document to which Pledgor, Holdings, Camp Hill or any Affiliate of either of them is a party or, except for the Collateral Agent liens created or contemplated hereby, result in the creation of any mortgage, lien, pledge, charge or encumbrance upon any of Pledgor's, Holdings' or Camp Hill's or any of their Affiliates' properties or assets.
(d) It is not necessary for Pledgor, Holdings, Camp Hill or any of their Affiliates to obtain or make any (1) governmental consent, approval or authorization, registration or filing (except for appropriate UCC financing statements) from or with any governmental authorities or (ii) consent, approval, waiver or notification of partners, lenders, mortgagees, creditors, lessors or other nongovernmental persons, in each case, in connection with the execution and delivery of this Agreement or the consummation of the transactions herein presently contemplated which has not been obtained.
(e) Pledgor is as follows:
of the date hereof (i) it (i) is the sole entitlement holder (within the meaning equity member of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented toHoldings, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvalssole member of Camp Hill and (iii) the sole owner of the Pledged Collateral. Pledgor owns the Pledged Collateral, consentsand the Pledged Collateral is and shall remain, exemptionsfree and clear of any lien, authorizationsmortgage, actionsencumbrance, notices and filings which have been duly obtainedcharge, takenpledge, given security interest, or made and are in full force and effect;
claim of any kind (ivincluding, without limitation, any unconditional sale or other title retention agreement) other than as created by this Agreement or the other Loan Documents.
(f) This Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement together with the Custodian not inconsistent with this Agreementfiling of necessary UCC financing statements in the appropriate jurisdiction in each state where Pledgor resides or has its principal office, as the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the case may be, creates a perfected first priority, continuing security interest of the Collateral Agent Lender in the Pledged Collateral, except to the extent of Pledged Collateral in the form of cash.
(g) Pledgor covenants and agrees that Pledgor shall defend, at Pledgor's sole cost and expense, Lender's right, title and Security Interest in and to the first priority thereof Pledged Collateral, created pursuant hereto, against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirewhomsoever.
Appears in 1 contract
Samples: Pledge and Security Agreement (Cedar Income Fund LTD /Md/)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, to Secured Party as of the date hereof and covenants with, as of the Collateral Agent date of each request for Revolving Loan (which representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement) as follows:
(i) it has full legal capacity and all requisite power, right and authority to (iA) own the Pledged Collateral, (B) execute, deliver and perform this Agreement, (C) pledge the Pledged Collateral, and (D) grant the security interests and Liens in the Pledged Collateral pursuant to this Agreement and otherwise consummate the transactions contemplated under this Agreement and the other Loan Documents to which it is the sole entitlement holder (within the meaning of Section 8-102(a)(7) a party, and Pledgor is under no legal restriction, limitation or disability that would prevent it from doing any of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountforegoing;
(ii) it this Agreement has not granted been duly executed and will not grantdelivered by Pledgor and constitutes the legal, or permit valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to existthe effect of any applicable bankruptcy, any security moratorium, insolvency, reorganization or other interest in or any right or claim (including any adverse claim) similar law affecting the enforceability of creditors’ rights generally and to the Collateral except those contemplated by this Agreementeffect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or in equity);
(iii) no authorization, approval or Pledgor is the direct record and beneficial owner of each security and other action byinterest that comprises the Pledged Collateral, and no notice to or filing withPledgor has and will have good, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor valid and marketable title thereto, free and clear of all Encumbrances other than the security interest in the Collateral purported to be interests created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings this Agreement and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectPermitted Liens;
(iv) all of the Pledged Collateral has been duly authorized and validly issued, are fully paid and (other than this Agreement, with respect to limited liability company and partnership interests) non-assessable and none of the Custody Agreement, Pledged Collateral was issued in violation of the Credit Agreement and preemptive rights of any customary funds transfer, account Person or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into of any agreement with any person relating to the Collateral Account by which Pledgor or any Collateral Account PropertyIssuer is bound;
(v) the Pledgor will take any Pledged Collateral described on Schedule 1.1 attached hereto constitute 100% of (1) the issued and all actions necessary or desirable to defend outstanding partnership interests of each Partnership if any, (i2) title to the Collateral issued and outstanding LLC Units of each limited liability company Issuer, if any, (3) the issued and outstanding ULC Shares of each unlimited liability company Issuer, if any, and (ii4) the security interest issued and outstanding Pledged Shares of the Collateral Agent in the Collateral and the first priority thereof against any Lieneach corporate Issuer, in each case against all claims and demands that is owned by Pledgor as of all persons at any timethe date hereof;
(vi) the Pledgor Pledged Collateral is and will not enter into any agreement or take or cause be duly and validly pledged to be taken any action that could impair the Collateral Agent's rights Secured Party in accordance with applicable law, and Secured Party has a good, valid and perfected first priority Lien on and security interest in the Pledged Collateral and the proceeds thereof subject to no Liens in favour of any other Person (other than Permitted Liens), and no filing or other action will be necessary to perfect or protect such lien or security interest other than the security interests created hereunder Sections 3.2 filing of any financing statement under the PPSA in the jurisdiction where the Pledgor is located (as determined in accordance with the PPSA) naming Pledgor, as debtor, and 3.3 above; andSecured Party, as secured party, and describing the Pledged Collateral and delivery to Secured Party of any certificates evidencing the Pledged Collateral (properly endorsed for transfer to Secured Party or in blank);
(vii) the execution, delivery and performance by Pledgor of this Agreement and the consummation of the transactions and the creation and granting of the security interests and liens contemplated thereby do not and will not (A) conflict with or violate the certificate of formation, articles of formation, articles of incorporation, bylaws, LLC Agreements, Partnership Agreements or similar documents of any Issuer or any agreement by and between Pledgor or any such Issuer and its respective equity owners or among any such equity owners; (B) conflict with, result in a breach of, constitute a default of or an event of default under, or constitute any event, fact, condition or circumstance which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default under, require any consent not obtained under, or result in or require the acceleration of any indebtedness pursuant to, any agreement, indenture or other instrument to which any Issuer is a party or by which any Issuer or any of its or their respective properties or assets are bound or subject, in each case, the effect of which would reasonably be expected to have or result in a Material Adverse Effect; (C) conflict with or violate any provision of any applicable law, statute, rule, regulation, ordinance, license or tariff or any judgment, decree or order of any court or other Governmental Authority binding on or applicable to any Issuer or any of its or their respective properties or assets or any of the Pledged Collateral, the effect of which would reasonably be expected to have or result in a Material Adverse Effect; or (D) result in the creation or imposition of any Lien of any nature whatsoever upon any of the properties or assets of any Issuer except those contemplated hereunder;
(viii) no restrictions or conditions exist with respect to the transfer, voting or capital of any Pledged Collateral and no approval, consent or authorization of, filing, registration or qualification with, or other action by, any Issuer, any Governmental Authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor or consummation of the transactions or creation or granting of the Liens and security interests contemplated hereby and all documentary stamp and other taxes and fees owing in connection with the issuance transfer or pledge of the Pledged Collateral (or rights in respect thereof) have been paid;
(ix) there is no action, claim, suit, proceeding or investigation pending or, to the knowledge of Pledgor, currently threatened against or affecting the Pledged Collateral, any Issuer, the Pledgor, or this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or Governmental Authority (A) that questions or could prevent the validity of this Agreement or the right or ability of Pledgor to enter into this Agreement or to consummate the transactions or create or grant the Liens and security interests contemplated hereby, (B) that would reasonably be expected to have or result in, either individually or in the aggregate, any Material Adverse Effect, or (C) that would reasonably be expected to result in any change in the current equity ownership of any Issuer, nor is Pledgor aware that there is any basis for any of the foregoing;
(x) no Issuer is a party or subject to any judgment, order or decree or any agreement, document or instrument or subject to any restriction, any of which do or would adversely affect or prevent Pledgor’s ability to execute or deliver, perform under, consummate the transactions contemplated by, or to observe the covenants and agreements contained in this Agreement;
(xi) the obligations of Pledgor under this Agreement are not subordinated in any way to any other obligation of Pledgor or to the rights of any other Person; and neither Pledgor nor any entity whose security constitutes part of the Pledged Collateral is a party to or has entered into any agreement, document or instrument that conflicts with this Agreement or that otherwise relates to the Pledged Collateral which would reasonably be expected to have a Material Adverse Effect;
(xii) the foregoing representations and warranties are made with the knowledge and intention that Secured Party is relying and will rely thereon, and such representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement;
(xiii) Pledgor has delivered to Secured Party all certificates and instruments evidencing Pledged Collateral and all such certificates and instruments are valid and genuine and have not been altered;
(xiv) no Issuer has any outstanding stock rights, rights to subscribe, options, warrants or convertible securities outstanding or any other rights outstanding whereby any Person would be entitled to have issued to it units of ownership interest, stock or partnership or membership interests in any Issuer; and
(b) Until all Obligations (other than contingent indemnification obligations, to the extent no claim giving rise thereto has been asserted) have been satisfied in full and indefeasibly paid in full in cash and the Loan Agreement has been terminated, Pledgor hereby covenants that:
(i) Pledgor shall: (A) at the request of Secured Party, execute, obtain, deliver, file, register and/or record any and all financing statements, continuation statements, instruments and other documents, or cause the execution, filing, registration, recording or delivery of any and all of the foregoing, that are necessary or required under law or otherwise reasonably requested by Secured Party to be executed, filed, registered, obtained, delivered or recorded to create, perfect, preserve, validate or otherwise protect the pledge of the Pledged Collateral to Secured Party and Secured Party’s perfected security interest in and lien on the Pledged Collateral; (B) maintain, or cause to be maintained, at all times, the pledge of the Pledged Collateral to Secured Party and Secured Party’s perfected first priority lien on and security interest in the Pledged Collateral; (C) use commercially reasonable efforts to defend the Pledged Collateral and Secured Party’s security interest therein and perfected first priority lien thereon against all claims and demands (other than Permitted Liens) of all Persons at any time claiming the same or any interest therein adverse to Secured Party, and pay all reasonable costs, fees and expenses (including, without limitation, in-house documentation and diligence fees and legal expenses and reasonable attorneys’ fees and expenses) in connection with such defense, which may at Secured Party’s discretion be charged to Pledgor’s account and added to the Obligations, and (D) if Secured Party so demands in writing in accordance with this Agreement to the extent entitled thereto pursuant to this Agreement or otherwise at any time during the continuance of an Event of Default, deliver all replacements, products and proceeds of, and dividends, distributions in property, returns of capital or other distributions made on or with respect to, the Pledged Collateral to Secured Party promptly upon receipt in a form and manner reasonably satisfactory to Secured Party;
(ii) Pledgor shall, and shall cause each Issuer to, keep true, complete and accurate books of record with respect to the Pledged Collateral in accordance with commercially reasonable business practices;
(iii) Pledgor shall, and shall cause each Issuer to, take all necessary and appropriate commercially reasonable actions to ensure that (A) this Agreement and the security interests and Liens created hereby are and remain perfected and enforceable against Pledgor in accordance with its and their terms, and (B) Pledgor complies with each of its covenants, agreements and obligations under this Agreement;
(iv) Pledgor shall promptly deliver not take or permit to be taken, or permit or cause any Issuer to take or permit to be taken, any action in connection with the Pledged Collateral Agent or otherwise which would reasonably be expected to impair the value of the Pledged Collateral or any portion thereof or the value of the interests or rights of Pledgor or Secured Party therein or with respect thereto, including, without limitation, any amendment to or modification of the certificate of formation (or similar charter documents) or bylaws or limited liability company agreement (or similar documents) of such Person which would reasonably be expected to result in or cause any of the foregoing;
(v) Pledgor shall not, and Administrative Agent shall not permit any Issuer to, cause or permit to be done, or enter into or make or become a party to any agreement (oral or written), arrangement or commitment to do or cause to be done, any of the things prohibited by this Agreement or that would breach this Agreement, any of the other Loan Documents or any other instrument, agreement, arrangement, commitment or document to which Pledgor or any Issuer is a party or by which Pledgor or any of its properties or assets is or may be bound or subject; and
(vi) Except for the Pledged Shares, the Pledged Collateral is not and shall not at any time be evidenced by any certificates. The certificates evidencing the Pledged Collateral shall at all times be valid and shall not be altered. The Pledged Collateral at all times shall be duly authorized, validly issued, fully paid and (other than with respect to partnership and limited liability company interests) non-assessable, and shall not be issued in violation of the pre-emptive rights of any Person or of any agreement by which Pledgor or any Issuer is bound and shall not be subject to any restrictions with respect to transfer, voting or capital of such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePledged Collateral.
Appears in 1 contract
Samples: Canadian Pledge Agreement (Mad Catz Interactive Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants toto Pledgee, and covenants withwith Pledgee, the Collateral Agent as follows:
(ia) it (i) Pledgor is the sole entitlement holder record and beneficial owner of, and has legal title to, the Pledged Shares listed on Exhibit A and such shares are, and all other shares of stock constituting Pledged Collateral will be, free and clear of all Liens except the Liens created by this Agreement.
(within b) Pledgor has full power, authority and legal right to execute the meaning pledge provided for herein and to pledge the Pledged Shares and any additional Pledged Collateral to Pledgee.
(c) This Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Section 8-102(a)(7Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally or by the availability of equitable remedies.
(d) There are no outstanding options, warrants or other agreements with respect to the Pledged Shares and there will be no outstanding options, warrants or other agreements with respect to any Pledged Collateral, other than as set forth on Exhibit A.
(e) No consent, approval or authorization of or designation or filing with any governmental authority on the part of Pledgor is required in connection with the pledge and security interest granted under this Agreement or the exercise by Pledgee of the UCCvoting and other rights provided for in this Agreement.
(f) The execution, delivery and performance of this Agreement by Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority applicable to Pledgor, or of the Collateral Account and the Collateral Account Property from time agreement of limited partnership of Pledgor or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to time credited to the Collateral Account and (ii) has not consented towhich Pledgor is a party or which is binding upon Pledgor or upon any of its property, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, result in the creation or permit to exist, imposition of any security or other interest in or Lien on any right or claim (including any adverse claim) to of the Collateral assets of Pledgor except those as contemplated by this Agreement;.
(iiig) no authorizationThe pledge, approval or other action by, assignment and no notice delivery to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor Pledgee of the Pledged Shares pursuant to this Agreement creates a valid first perfected security interest in the Collateral purported to be created Pledged Shares and the proceeds thereof in favor of the Collateral Agent hereunder Pledgee, subject to no prior Lien or (b) the exercise by the Collateral Agent or the Administrative Agent of to any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary agreement purporting to perfect the grant to any third party a security interest on in the Collateral granted by property or assets of Pledgor which would include the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;Pledged Shares.
(ivh) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and agrees that it will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the Pledgee's security interest of the Collateral Agent in the Pledged Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePersons.
Appears in 1 contract
Samples: Pledge Agreement (Credentials Services International Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and hereby represents, warrants to, and covenants with, the Collateral Agent as follows:
(ia) it Pledgor is organized under the laws of the State of Delaware; Pledgor has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; the general partner of Pledgor is Xxxxxx, Xxxxxxx Strategic Partners, L.P., a Delaware limited partnership, the general partners of which are Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxx; and Pledgor shall not change the General Partner of Pledgor without prior written notice to Secured Party.
(ib) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) legal and beneficial owner of the UCCCollateral, including, without limitation, the Securities.
(c) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) Pledgor has not consented tosold, and is not otherwise aware ofassigned, any person (other than the Secured Parties) having Control overpledged, created a lien or security interest in, or otherwise transferred any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted any other person or entity, and without Secured Party's prior written consent, Pledgor will not grantsell, assign, transfer, convey xxxxx x xxxx or permit to exist, any security or other interest in or otherwise dispose of all, or any right or claim portion of, the Collateral, including, without limitation, the Securities, except in accordance with the provisions of Section 4 hereof.
(including d) Unless otherwise agreed to in writing by Secured Party, the Securities shall comply with the criteria specified in Exhibit A at all times that any adverse claim) amounts are due and unpaid to Secured Party under the Note. In addition, Pledgor shall direct all limited partners of Pledgor to deliver capital contributions to the Pledged Account. Pursuant to Pledgor's Limited Partnership Agreement, capital contributions are expected to be funded in cash within 30 days of each capital call. No Collateral except those contemplated by (including, without limitation, cash) will be removed from the Pledged Account until any then outstanding principal balance and any accrued and unpaid interest on the Note is paid in full.
(e) Pledgor shall furnish or cause to be furnished to Secured Party, from time to time, such additional information and copies of such documents relating to this Agreement;, the Collateral, and Pledgor's financial condition as Secured Party may reasonably request.
(iiif) no authorizationPledgor shall, approval upon the request of Secured Party or Financial Intermediary, furnish to Secured Party or Financial Intermediary, such further information, execute and deliver to Secured Party or Financial Intermediary such other action bydocuments evidencing that all right, title and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the interest of Pledgor of the security interest in the Collateral purported have been pledged and assigned to Secured Party, and do such other acts and things, all as Secured Party or Financial Intermediary may at any time reasonably request relating to the perfection or protection of Secured Party's interests created by this Agreement or for the purpose of carrying out the intent of this Agreement.
(g) All compensation, charges, fees, taxes, costs, and expenses relating to the Pledged Account, Collateral or this Agreement shall be created in favor of the Collateral Agent hereunder or (b) the exercise paid by the Collateral Agent or the Administrative Agent of Pledgor, and Secured Party shall have no responsibility for such amounts nor shall any rights or remedies in respect of such amounts be deductible from the Collateral, except for as otherwise provided or permitted in Section 6(m) hereof.
(h) Pledgor agrees to pay promptly when due all taxes, assessments or governmental charges with respect to the Collateral.
(i) filings and other actions necessary Pledgor shall cause, as a precautionary measure, a financing statement to perfect be duly filed with the security interest on the Collateral granted by the Pledgor in favor office of the Collateral Agent Secretary of State of the State of Delaware (Uniform Commercial Code Division) and such other filing offices as may be required under Section 3.5 abovereasonably requested by Secured Party with respect to the Collateral, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest shall provide satisfactory evidence of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.filing(s)
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor will take does not violate any and all actions necessary provision of any applicable law or desirable to defend (i) title to the Collateral and (ii) the security interest regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral Agent certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other material agreement or material instrument to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will not result in the Collateral and creation or imposition of any lien or encumbrance on any of the first priority thereof against assets of such Pledgor or any Lien, in each case against all claims and demands of all persons at any time;
its Subsidiaries except as contemplated by this Agreement; (vi) all the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair shares of Stock of Subsidiaries of the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 Borrower have been duly and 3.3 abovevalidly issued, are fully paid and nonassessable; and
(vii) each of the Pledgor shall promptly deliver Pledged Notes constituting Intercompany Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the Collateral Agent and Administrative Agent such documents relating to extent that the Collateral Account as the Collateral Agent or Administrative Agent enforceability thereof may reasonably require.be limited by applicable
Appears in 1 contract
Samples: Pledge Agreement (McMS Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and warrants torepresents, warrants, and covenants with, the Collateral Agent to Lender solely for itself and not for any other Pledgor as follows:
(i) it (i) is Pledgor holds the corresponding Equity Interests set forth on Schedule A, and Pledgors collectively are the sole entitlement holder (within the meaning of Section 8-102(a)(7) legal and beneficial owners of the UCC) Pledged Interests free and clear of any lien except for the Collateral Account security interest created by this Agreement and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral AccountLoan Documents;
(ii) it Pledgor has not granted full power and will not grant, or permit authority to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by enter into this Agreement;
(iii) there are no restrictions upon the voting rights (to the extent granted therein) associated with, or upon the transfer of, any of the Pledged Interests;
(iv) Pledgor has the right to vote (to the extent the Pledged Interest contain voting rights), pledge and grant a security interest in or otherwise transfer the Pledged Interests;
(v) no authorization, approval approval, or other action by, and no notice to or filing with, any United States governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor pledge of the security interest in Pledged Interests pursuant to this Agreement or for the Collateral purported to be created in favor execution, delivery or performance of the Collateral Agent hereunder or (b) the exercise this Agreement by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any timePledgor;
(vi) each of the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 abovePledged Interests are set forth on Schedule A; and
(vii) each of the Pledged Interests certificated as of the date hereof shall at all times remain certificated, and in connection herewith, Pledgor shall promptly deliver such certificates to Lender endorsed to Lender in blank.
(viii) if any of the Pledged Interests which are not certificated as of the date hereof shall at any time become certificated, or if any of the vested stock options listed on Schedule A are exercised, Pledgor will immediately notify Lender and deliver such certificates to Lender endorsed to Lender in blank.
(ix) each Pledgor shall not enter into any agreements or instruments, that would (1) create or impose supermajority voting requirements in the organizational documents of ECEC, Holdco or Borrower (by the relevant governing body of such entity or by its equity owners) for any corporate or company action other than with respect to a vote on the filing of a voluntary bankruptcy (it being understood and agreed that a voluntary bankruptcy is any bankruptcy filing other than one made by a third party, unaffiliated creditor of ECEC, Borrower, Holdco, or after the Closing, KEM (each a “Buyer Party”), or an affiliate solely because of the non-payment of debt by a Buyer party or an affiliate); (2) dilute the ownership interests of a Pledgor in ECEC, result in the issuance of additional equity interests of any kind (whether or not convertible) other than pursuant to those vested stock options listed on Schedule 1 attached hereto, or cause ECEC to incur additional debt (except in the ordinary course of business) unless the holders of such additional equity interests or additional debt pledge such additional equity interests or subordinate such additional debt to Lender pursuant to an agreement substantially in the same form as this Agreement; provided, however, that if the proceeds of any such issuance of equity or incurrence of debt will be used to pay all amounts due with respect to the Collateral Agent Senior Note in full, then such issuance and/or incurrence shall be permitted and Administrative Agent the holders of such documents relating additional equity interests or debt shall not be required to pledge such additional equity or subordinated such additional debt as provided above in this clause (ix); (3) dilute the Collateral Account as ownership interest of Borrower in KEM in any respect; or (4) result in the Collateral Agent termination of the existence of any entity party to a Loan Document, whether by reorganization, winding up, merger, dissolution or Administrative Agent may reasonably requireotherwise.
Appears in 1 contract
Samples: Pledge Agreement (Cil&d, LLC)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants torepresents, warrants, and covenants with, the Collateral Agent to Lender as follows:
(i) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) legal and beneficial owner of the UCC) Pledged Interests free and clear of any lien except for the Collateral Account security interest created by this Agreement and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral AccountLoan Documents;
(ii) it Pledgor has not granted full power and will not grant, or permit authority to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by enter into this Agreement;
(iii) there are no restrictions upon the voting rights associated with, or upon the transfer of, any of the Pledged Interests;
(iv) Pledgor has the right to vote, pledge and grant a security interest in or otherwise transfer the Pledged Interests;
(v) no authorization, approval approval, or other action by, and no notice to or filing with, any United States governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor pledge of the security interest in Pledged Interests pursuant to this Agreement or for the Collateral purported to be created in favor execution, delivery or performance of the Collateral Agent hereunder or (b) the exercise this Agreement by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any timePledgor;
(vi) each of the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 abovePledged Interests are set forth on Schedule A; and
(vii) each of the Pledged Interests certificated as of the date hereof shall at all times remain certificated, and in connection herewith, Pledgor shall promptly deliver such certificates to Lender endorsed to Lender in blank.
(viii) if any of the Pledged Interests which are not certificated as of the date hereof shall at any time become certificated, Pledgor will immediately notify Lender and deliver such certificates to Lender endorsed to Lender in blank.
(ix) Pledgor shall not enter into any agreements or instruments, that would (1) create or impose supermajority voting requirements in the organizational documents of ECEC, Holdco or Borrower (by the relevant governing body of such entity or by its equity owners) for any corporate or company action other than with respect to a vote on the filing of a voluntary bankruptcy (it being understood and agreed that a voluntary bankruptcy is any bankruptcy filing other than one made by a third party, unaffiliated creditor of ECEC, Borrower, Holdco, or after the Closing, KEM (each a “Buyer Party”), or an affiliate solely because of the non-payment of a debt by a Buyer Party or an affiliate); (2) dilute the ownership interests of Pledgor in KEM, result in the issuance of additional equity interests of any kind (whether or not convertible) or cause KEM to incur additional debt (except in the ordinary course of business) unless the holders of such additional equity interests or additional debt pledge such additional equity interests or subordinate such additional debt to Lender pursuant to an agreement substantially in the same form as this Agreement; provided, however, that if the proceeds of any such issuance of equity or incurrence of debt will be used to pay all amounts due with respect to the Collateral Agent Senior Note in full, then such issuance and/or incurrence shall be permitted and Administrative Agent the holders of such documents relating additional equity interests or debt shall not be required to pledge such additional equity or subordinated such additional debt as provided above in this clause (ix); (3) dilute the Collateral Account as ownership interest of Borrower in KEM in any respect; or (4) result in the Collateral Agent termination of the existence of any entity party to a Loan Document, whether by reorganization, winding up, merger, dissolution or Administrative Agent may reasonably requireotherwise.
Appears in 1 contract
Samples: Pledge Agreement (Cil&d, LLC)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants that (a) he is the legal record and beneficial owner of, and has good and marketable title to, the Capital Stock, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the lien and covenants withsecurity interests created, and other encumbrances allowed, by this Agreement; (b) he has full power, authority and legal right to pledge the Collateral Agent as follows:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time Pledged Securities pursuant to time credited this Agreement subject to the Collateral Account consent of Whale Securities Co., L.P. ("Whale") with respect to the Lock-Up Agreement dated June 19, 1998, between Pledgor and Whale; (iic) has this Agreement constitutes a legal, valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and subject to general principles of equity; (d) no consent of any creditor of Pledgor is required in connection with the execution, delivery and performance of this Agreement; (e) the execution, delivery and performance of this Agreement will not consented toviolate any provision of any mortgage, and is not otherwise aware ofindenture, any person (other than the Secured Parties) having Control overlease, contract, or other agreement, instrument or undertaking to which Pledgor is a party or which purports to be binding upon Pledgor, or upon any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted of his assets and will not grantresult in the creation or imposition of any lien, charge or permit to exist, any encumbrance on or security or other interest in or any right or claim (including any adverse claim) to of the Collateral assets of Pledgor except those as contemplated by this Agreement;
(iii) no authorization. Pledgor covenants and agrees that Xxxxxxx will defend Xxxxxxx's right, approval or other action by, title and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Pledged Securities and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and covenants and agrees that Xxxxxxx will likewise defend Xxxxxxx's right to and security interest in any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause time hereafter pledged to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account Pledgee as the Collateral Agent or Administrative Agent may reasonably requirecollateral hereunder.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants toto Pledgee, and covenants withwith Pledgee, the Collateral Agent as follows:
(ia) it (i) Pledgor is the sole entitlement holder record and beneficial owner of, and has legal title to, the Pledged Shares listed on Exhibit A and such shares are, and all other shares of stock constituting Pledged Collateral will be, free and clear of all Liens except the Liens created by this Agreement.
(within b) Pledgor has full power, authority and legal right to execute the meaning pledge provided for herein and to pledge the Pledged Shares and any additional Pledged Collateral to Pledgee.
(c) This Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Section 8-102(a)(7Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency and other similar laws affecting the enforcement of creditors' rights generally or by the availability of equitable remedies.
(d) There are no outstanding options, warrants or other agreements with respect to the Pledged Shares and there will be no outstanding options, warrants or other agreements with respect to any Pledged Collateral, other than as set forth on Exhibit A.
(e) No consent, approval or authorization of or designation or filing with any governmental authority on the part of Pledgor is required in connection with the pledge and security interest granted under this Agreement or the exercise by Pledgee of the UCCvoting and other rights provided for in this Agreement.
(f) The execution, delivery and performance of this Agreement by Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority applicable to Pledgor, or of the Collateral Account and agreement of limited partnership of Pledgor or the Collateral Account Property from time charter or by-laws of Borrower or of any securities issued by Borrower or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to time credited to the Collateral Account and (ii) has not consented towhich Pledgor or Borrower is a party or which is binding upon Pledgor or Borrower or upon any of their respective property, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, result in the creation or permit to exist, imposition of any security Lien on any of the assets of Pledgor or other interest in or any right or claim (including any adverse claim) to the Collateral Borrower except those as contemplated by this Agreement;.
(iiig) no authorizationThe pledge, approval or other action by, assignment and no notice delivery to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor Pledgee of the Pledged Shares pursuant to this Agreement creates a valid first perfected security interest in the Collateral purported to be created Pledged Shares and the proceeds thereof in favor of the Collateral Agent hereunder Pledgee, subject to no prior Lien or (b) the exercise by the Collateral Agent or the Administrative Agent of to any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary agreement purporting to perfect the grant to any third party a security interest on in the Collateral granted by property or assets of Pledgor which would include the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;Pledged Shares.
(ivh) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and agrees that it will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the Pledgee's security interest of the Collateral Agent in the Pledged Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePersons.
Appears in 1 contract
Samples: Pledge Agreement (Credentials Services International Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) legal, beneficial and record owner of, and has good and valid title to, all of the Collateral Account and that it has sufficient interest in all of the Collateral Account Property from time in which a security interest is purported to time credited be created hereunder for such security interest to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountattach thereto;
(ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) to pledge all the Collateral except those contemplated pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no authorizationconsent of any other party (including, without limitation, any stockholder, partner, member or creditor of Pledgor) and no material consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either to be obtained by Pledgor in connection with (aA) the grant execution, delivery or performance of this Agreement by Pledgor, (B) the Pledgor validity or enforceability of this Agreement against Pledgor, (C) the perfection or enforceability of Pledgee’s security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (bD) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent compliance with or as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreementby applicable securities laws, the Custody Agreement, the Credit Agreement and exercise by Pledgee of any customary funds transfer, account of its rights or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Propertyremedies provided herein;
(v) neither the execution, delivery or performance by Pledgor of this Agreement or compliance by it with the terms and provisions hereof nor the consummation of the transactions contemplated herein: (A) will take contravene any and all actions necessary provision of any applicable law, statute, rule or desirable regulation, or any applicable order, writ, injunction or decree of any court, arbitrator or governmental instrumentality, domestic or foreign, applicable to defend Pledgor; (iB) title will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the properties or assets of Pledgor pursuant to the terms of any indenture, lease, mortgage, deed of trust, credit agreement, loan agreement or any other material agreement, contract or other instrument to which Pledgor is otherwise bound, or by which it or any of its properties or assets is bound or to which it may be subject; or (C) will violate any provision of the certificate of incorporation or by-laws of Pledgor or of the LLC Agreement; and
(vi) the Limited Liability Company Interests have been duly and validly issued, are fully paid and non-assessable and are not subject to any options to purchase or similar rights;
(vii) Pledgor is a corporation organized and existing under the laws of the State of Delaware and the principal executive office of Pledgor is located at the address for Pledgor given in Section 20 hereof;
(viii) upon the filing with the Secretary of State of the State of Delaware of a UCC-1 financing statement naming Pledgor as “debtor,” Pledgee as “secured party” and describing the Collateral and (ii) as the collateral, the security interest of the Collateral Agent Pledgee in the Collateral will be a valid and perfected, first priority security interest.
(b) Pledgor covenants and agrees that it will defend Pledgee’s right, title and security interest in and to Pledgor’s Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;whomsoever.
(vic) Pledgor shall not change its legal name, its type of organization, its jurisdiction of organization, or its Location, except that any such changes shall be permitted if (i) it shall have given to Pledgee not less than 30 days’ prior written notice of each change and (ii) in connection with the Pledgor will not enter into any agreement respective such change or take or cause changes, it shall have taken all action reasonably requested by Pledgee to be taken any action that could impair maintain the Collateral Agent's rights security interests of Pledgee in the Collateral or the security interests created hereunder Sections 3.2 intended to be granted hereby at all times fully perfected and 3.3 above; andin full force and effect.
(viid) So long as no Event of Default has occurred and is continuing, Pledgor or its affiliates shall have the right, upon at least thirty (30) days’ prior written notice to Pledgee, to obtain the release of any collateral securing the Obligations, provided that Pledgor or one or more of its affiliates shall concurrently execute and deliver to Pledgee an additional or supplemental mortgage or security agreement, in form similar to the Mortgage or otherwise satisfactory to Pledgee in its reasonable discretion, granting to Pledgee a lien on Property (the “Substitute Collateral”) of the same or greater value as the collateral securing the obligations being concurrently released (the “Release Collateral”). Concurrently with such substitution of collateral (a) Pledgor or its affiliate, as applicable, shall execute and deliver to Pledgee all documents, instruments and financing statements necessary to perfect the lien and security interest in the Substitute Collateral and (b) Pledgee shall execute and deliver to Pledgor all documents, instruments, releases and financing statement amendments or terminations necessary to release Pledgee’s lien and security interest in the Release Collateral. Pledgor shall promptly deliver pay all costs and expenses of substituting and releasing collateral pursuant to this Section 16(d), including filing and recording expenses, and the Collateral Agent reasonable fees and Administrative Agent disbursements of Pledgee’s legal counsel incurred in connection with such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requiresubstitution of collateral.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, to Secured Party as of the date hereof and covenants with, as of the Collateral Agent date of each request for Revolving Loan (which representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement) as follows:
(i) it has full legal capacity and all requisite power, right and authority to (iA) own the Pledged Collateral, (B) execute, deliver and perform this Agreement, (C) pledge the Pledged Collateral, and (D) grant the security interests and Liens in the Pledged Collateral pursuant to this Agreement and otherwise consummate the transactions contemplated under this Agreement and the other Loan Documents to which it is the sole entitlement holder (within the meaning of Section 8-102(a)(7) a party, and Pledgor is under no legal restriction, limitation or disability that would prevent it from doing any of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountforegoing;
(ii) it this Agreement has not granted been duly executed and will not grantdelivered by Pledgor and constitutes the legal, or permit valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to existthe effect of any applicable bankruptcy, any security moratorium, insolvency, reorganization or other interest in or any right or claim (including any adverse claim) similar law affecting the enforceability of creditors’ rights generally and to the Collateral except those contemplated by this Agreementeffect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or in equity);
(iii) no authorization, approval or Pledgor is the direct record and beneficial owner of each security and other action byinterest that comprises the Pledged Collateral, and no notice to or filing withPledgor has and will have good, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor valid and marketable title thereto, free and clear of all Encumbrances other than the security interest in the Collateral purported to be interests created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings this Agreement and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectPermitted Liens;
(iv) all of the Pledged Collateral has been duly authorized and validly issued, are fully paid and (other than this Agreement, with respect to limited liability company and partnership interests) non-assessable and none of the Custody Agreement, Pledged Collateral was issued in violation of the Credit Agreement and preemptive rights of any customary funds transfer, account Person or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into of any agreement with any person relating to the Collateral Account by which Pledgor or any Collateral Account PropertyIssuer is bound;
(v) the Pledgor will take any Pledged Collateral described on Schedule 1.1 attached hereto constitute 100% of (1) the issued and all actions necessary or desirable to defend outstanding partnership interests of each Partnership if any, (i2) title to the Collateral issued and outstanding LLC Units of each limited liability company Issuer, if any, and (ii3) the security interest issued and outstanding Pledged Shares of each corporate Issuer (other than, in each case, the Collateral Agent in the Collateral and the first priority thereof against any LienExcluded Equity), in each case against all claims and demands that is owned by Pledgor as of all persons at any timethe date hereof;
(vi) the Pledgor Pledged Collateral is and will not enter into any agreement or take or cause be duly and validly pledged to be taken any action that could impair the Collateral Agent's rights Secured Party in accordance with applicable law, and Secured Party has a good, valid and perfected first priority Lien on and security interest in the Pledged Collateral and the proceeds thereof subject to no Liens in favor of any other Person (other than Permitted Liens), and no filing or other action will be necessary to perfect or protect such lien or security interest other than the security interests created hereunder Sections 3.2 filing of any financing statement with the secretary of state (or equivalent government official) of the state in which Pledgor is organized naming Pledgor, as debtor, and 3.3 above; andSecured Party, as secured party, and describing the Pledged Collateral and delivery to Secured Party of any certificates evidencing the Pledged Collateral (properly endorsed for transfer to Secured Party or in blank);
(vii) the execution, delivery and performance by Pledgor of this Agreement and the consummation of the transactions and the creation and granting of the security interests and liens contemplated thereby do not and will not (A) conflict with or violate the certificate of formation, articles of formation, articles of incorporation, bylaws, LLC Agreements, Partnership Agreements or similar documents of any Issuer or any agreement by and between Pledgor or any such Issuer and its respective equity owners or among any such equity owners; (B) conflict with, result in a breach of, constitute a default of or an event of default under, or constitute any event, fact, condition or circumstance which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default under, require any consent not obtained under, or result in or require the acceleration of any indebtedness pursuant to, any agreement, indenture or other instrument to which any Issuer is a party or by which any Issuer or any of its or their respective properties or assets are bound or subject, in each case, the effect of which would reasonably be expected to have or result in a Material Adverse Effect; (C) conflict with or violate any provision of any applicable law, statute, rule, regulation, ordinance, license or tariff or any judgment, decree or order of any court or other Governmental Authority binding on or applicable to any Issuer or any of its or their respective properties or assets or any of the Pledged Collateral, the effect of which would reasonably be expected to have or result in a Material Adverse Effect; or (D) result in the creation or imposition of any Lien of any nature whatsoever upon any of the properties or assets of any Issuer except those contemplated hereunder;
(viii) no restrictions or conditions exist with respect to the transfer, voting or capital of any Pledged Collateral and no approval, consent or authorization of, filing, (other than UCC financing statements), registration or qualification with, or other action by, any Issuer, any Governmental Authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor or consummation of the transactions or creation or granting of the Liens and security interests contemplated hereby and all documentary stamp and other taxes and fees owing in connection with the issuance transfer or pledge of the Pledged Collateral (or rights in respect thereof) have been paid;
(ix) there is no action, claim, suit, proceeding or investigation pending or, to the knowledge of Pledgor, currently threatened against or affecting the Pledged Collateral, any Issuer, the Pledgor, or this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or Governmental Authority (A) that questions or could prevent the validity of this Agreement or the right or ability of Pledgor to enter into this Agreement or to consummate the transactions or create or grant the Liens and security interests contemplated hereby, (B) that would reasonably be expected to have or result in, either individually or in the aggregate, any Material Adverse Effect, or (C) that would reasonably be expected to result in any change in the current equity ownership of any Issuer, nor is Pledgor aware that there is any basis for any of the foregoing;
(x) no Issuer is a party or subject to any judgment, order or decree or any agreement, document or instrument or subject to any restriction, any of which do or would adversely affect or prevent Pledgor’s ability to execute or deliver, perform under, consummate the transactions contemplated by, or to observe the covenants and agreements contained in this Agreement;
(xi) the obligations of Pledgor under this Agreement are not subordinated in any way to any other obligation of Pledgor or to the rights of any other Person; and neither Pledgor nor any entity whose security constitutes part of the Pledged Collateral is a party to or has entered into any agreement, document or instrument that conflicts with this Agreement or that otherwise relates to the Pledged Collateral which would reasonably be expected to have a Material Adverse Effect;
(xii) the foregoing representations and warranties are made with the knowledge and intention that Secured Party is relying and will rely thereon, and such representations and warranties shall survive the execution and delivery of this Agreement and the making of Loans and advances under the Loan Agreement;
(xiii) Pledgor has delivered to Secured Party all certificates and instruments evidencing Pledged Collateral and all such certificates and instruments are valid and genuine and have not been altered;
(xiv) no Issuer has any outstanding stock rights, rights to subscribe, options, warrants or convertible securities outstanding or any other rights outstanding whereby any Person would be entitled to have issued to it units of ownership interest, stock or partnership or membership interests in any Issuer; and
(xv) Pledgor has not, nor has any Issuer, elected the application of Article 8 of the UCC to apply to any Issuer or any Company Rights, and Article 8 of the UCC is thus not applicable to any Issuer other than any corporate Issuer.
(b) Until all Obligations (other than contingent indemnification obligations, to the extent no claim giving rise thereto has been asserted) have been satisfied in full and indefeasibly paid in full in cash and the Loan Agreement has been terminated, Pledgor hereby covenants that:
(i) Pledgor shall: (A) at the request of Secured Party, execute, obtain, deliver, file, register and/or record any and all financing statements, continuation statements, instruments and other documents, or cause the execution, filing, registration, recording or delivery of any and all of the foregoing, that are necessary or required under law or otherwise reasonably requested by Secured Party to be executed, filed, registered, obtained, delivered or recorded to create, perfect, preserve, validate or otherwise protect the pledge of the Pledged Collateral to Secured Party and Secured Party’s perfected security interest in and lien on the Pledged Collateral; (B) maintain, or cause to be maintained, at all times, the pledge of the Pledged Collateral to Secured Party and Secured Party’s perfected first priority lien on and security interest in the Pledged Collateral; (C) use commercially reasonable efforts to defend the Pledged Collateral and Secured Party’s security interest therein and perfected first priority lien thereon against all claims and demands (other than Permitted Liens) of all Persons at any time claiming the same or any interest therein adverse to Secured Party, and pay all reasonable costs, fees and expenses (including, without limitation, in-house documentation and diligence fees and legal expenses and reasonable attorneys’ fees and expenses) in connection with such defense, which may at Secured Party’s discretion be charged to Pledgor’s account and added to the Obligations, and (D) if Secured Party so demands in writing in accordance with this Agreement to the extent entitled thereto pursuant to this Agreement or otherwise at any time during the continuance of an Event of Default, deliver all replacements, products and proceeds of, and dividends, distributions in property, returns of capital or other distributions made on or with respect to, the Pledged Collateral to Secured Party promptly upon receipt in a form and manner reasonably satisfactory to Secured Party;
(ii) Pledgor shall, and shall cause each Issuer to, keep true, complete and accurate books of record with respect to the Pledged Collateral in accordance with commercially reasonable business practices;
(iii) Pledgor shall, and shall cause each Issuer to, take all necessary and appropriate commercially reasonable actions to ensure that (A) this Agreement and the security interests and Liens created hereby are and remain perfected and enforceable against Pledgor in accordance with its and their terms, and (B) Pledgor complies with each of its covenants, agreements and obligations under this Agreement;
(iv) Pledgor shall promptly deliver not take or permit to be taken, or permit or cause any Issuer to take or permit to be taken, any action in connection with the Pledged Collateral Agent or otherwise which would reasonably be expected to impair the value of the Pledged Collateral or any portion thereof or the value of the interests or rights of Pledgor or Secured Party therein or with respect thereto, including, without limitation, any amendment to or modification of the certificate of formation (or similar charter documents) or bylaws or limited liability company agreement (or similar documents) of such Person which would reasonably be expected to result in or cause any of the foregoing;
(v) Pledgor shall not, and Administrative Agent shall not permit any Issuer to, cause or permit to be done, or enter into or make or become a party to any agreement (oral or written), arrangement or commitment to do or cause to be done, any of the things prohibited by this Agreement or that would breach this Agreement, any of the other Loan Documents or any other instrument, agreement, arrangement, commitment or document to which Pledgor or any Issuer is a party or by which Pledgor or any of its properties or assets is or may be bound or subject; and
(vi) Except for the Pledged Shares, the Pledged Collateral is not and shall not at any time be evidenced by any certificates. The certificates evidencing the Pledged Collateral shall at all times be valid and shall not be altered. The Pledged Collateral at all times shall be duly authorized, validly issued, fully paid and (other than with respect to partnership and limited liability company interests) non-assessable, and shall not be issued in violation of the pre-emptive rights of any Person or of any agreement by which Pledgor or any Issuer is bound and shall not be subject to any restrictions with respect to transfer, voting or capital of such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePledged Collateral.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of Pledgor has all requisite capacity, power and authority, being under no legal restriction, limitation or disability, to own the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account execute, deliver and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;perform this Agreement.
(ii) it This Agreement has not granted been duly authorized, executed and will not grantdelivered by Pledgor and constitutes a legal, or permit to existvalid, any security or other interest and binding obligation of Pledgor, enforceable in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;accordance with its terms.
(iii) no authorizationPledgor is the record and beneficial owner of each share of the Collateral. Pledgor has and will have good, approval or valid and marketable title thereto, free and clear of all Encumbrances other action bythan the security interest created by this Agreement with respect to the Collateral, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor second priority security interest under the Term Loan Security Agreements.
(iv) All of the shares of the Collateral have been duly and validly issued, fully paid and nonassessable.
(v) The Collateral is and will be duly and validly pledged for the benefit of Secured Party in accordance with law, and the Secured Party has and will have a good, valid, and perfected first lien on and security interest in the Collateral purported and the proceeds thereof.
(vi) The execution, delivery and performance by Pledgor of this Agreement does not and will not: (A) conflict with or result in a breach of or constitute a default or require any consent (which has not been obtained) under, or result in or require the acceleration of any of its indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor is a party or by which Pledgor, or any of may be created in favor of the Collateral Agent hereunder bound or affected; or (bB) conflict with or violate any judgment, decree, order, law, statute, ordinance, license or other governmental rule or regulation applicable to Pledgor.
(vii) No approval, consent or other action by Pledgor, any governmental authority, or any other person or entity is or will be necessary to permit the exercise valid execution, delivery or performance of this Agreement by Pledgor.
(viii) There is no action, claim, suit, proceeding or investigation pending, or to the Collateral Agent knowledge of Pledgor, threatened or reasonably anticipated, against or affecting Pledgor, this Agreement, or the Administrative Agent of transactions contemplated hereby, before or by any rights court, arbitrator or remedies in respect governmental authority which might adversely affect Pledgor's ability to perform its obligations under this Agreement or might materially adversely affect the value of the Collateral, except for .
(iix) filings and other actions necessary Other than (A) financing statements listed in Schedule 5(a)(ix) to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, this Agreement and (ii) financing statements in favor of Secured Party, no effective financing statement naming Pledgor as debtor, assignor, grantor, mortgagor, pledgor or the approvals, consents, exemptions, authorizations, actions, notices like and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account covering an or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest part of the Collateral Agent is on file in the Collateral and the first priority thereof against any Lien, filing or recording office in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirejurisdiction.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it is the legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (i) is the sole entitlement holder and (within the meaning x) of Section 8-102(a)(7) 8.01 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor will take does not violate any and all actions necessary provision of any applicable law or desirable to defend (i) title to the Collateral and (ii) the security interest regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral Agent certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other material agreement or material instrument to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will not result in the Collateral and creation or imposition of any lien or encumbrance on any of the first priority thereof against assets of such Pledgor or any Lien, in each case against all claims and demands of all persons at any time;
its Subsidiaries except as contemplated by this Agreement; (vi) all the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 shares of Stock of Subsidiaries of Holding have been duly and 3.3 abovevalidly issued, are fully paid and nonassessable; and
(vii) each of the Pledgor shall promptly deliver to Pledged Notes constituting Intercompany Notes, when executed by the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.obligor thereof, will be the
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) legal, beneficial and record owner of, and has good and valid title to, all of the Collateral Account and that it has sufficient interest in all of the Collateral Account Property from time in which a security interest is purported to time credited be created hereunder for such security interest to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountattach thereto;
(ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) to pledge all the Collateral except those contemplated pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable against Pledgor in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, no authorizationconsent of any other party (including, without limitation, any stockholder, partner, member or creditor of Pledgor) and no material consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either to be obtained by Pledgor in connection with (aA) the grant execution, delivery or performance of this Agreement by Pledgor, (B) the Pledgor validity or enforceability of this Agreement against Pledgor, (C) the perfection or enforceability of Pledgee’s security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (bD) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent compliance with or as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreementby applicable securities laws, the Custody Agreement, the Credit Agreement and exercise by Pledgee of any customary funds transfer, account of its rights or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Propertyremedies provided herein;
(v) neither the execution, delivery or performance by Pledgor of this Agreement or compliance by it with the terms and provisions hereof nor the consummation of the transactions contemplated herein: (A) will take contravene any and all actions necessary provision of any applicable law, statute, rule or desirable regulation, or any applicable order, writ, injunction or decree of any court, arbitrator or governmental instrumentality, domestic or foreign, applicable to defend Pledgor; (iB) title will conflict or be inconsistent with or result in any breach of any of the terms, covenants, conditions or provisions of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the properties or assets of Pledgor pursuant to the terms of any indenture, lease, mortgage, deed of trust, credit agreement, loan agreement or any other material agreement, contract or other instrument to which Pledgor is otherwise bound, or by which it or any of its properties or assets is bound or to which it may be subject; or (C) will violate any provision of the certificate of incorporation or by-laws of Pledgor or of the LLC Agreement;
(vi) the Limited Liability Company Interests have been duly and validly issued, are fully paid and non-assessable and are not subject to any options to purchase or similar rights;
(vii) Pledgor is a corporation organized and existing under the laws of the State of Delaware and the principal executive office of Pledgor is located at the address for Pledgor given in Section 20 hereof; and
(viii) upon the filing with the Secretary of State of the State of Delaware of a UCC-1 financing statement naming Pledgor as “debtor,” Pledgee as “secured party” and describing the Collateral and (ii) as the collateral, the security interest of the Collateral Agent Pledgee in the Collateral will be a valid and perfected, first priority security interest.
(b) Pledgor covenants and agrees that it will defend Pledgee’s right, title and security interest in and to Pledgor’s Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;whomsoever.
(vic) Pledgor shall not change its legal name, its type of organization, its jurisdiction of organization, or its Location, except that any such changes shall be permitted if (i) it shall have given to Pledgee not less than 30 days’ prior written notice of each change and (ii) in connection with the Pledgor will not enter into any agreement respective such change or take or cause changes, it shall have taken all action reasonably requested by Pledgee to be taken any action that could impair maintain the Collateral Agent's rights security interests of Pledgee in the Collateral intended to be granted hereby at all times fully perfected and in full force and effect.
(d) So long as no Event of Default has occurred and is continuing, Pledgor or its affiliates shall have the right, upon at least thirty (30) days’ prior written notice to Pledgee, to obtain the release of any collateral securing the Obligations, provided that Pledgor or one or more of its affiliates shall concurrently execute and deliver to Pledgee an additional or supplemental mortgage or security agreement, in form similar to the Mortgage or otherwise satisfactory to Pledgee in its reasonable discretion, granting to Pledgee a lien on Property (the “Substitute Collateral”) of the same or greater value as the collateral securing the obligations being concurrently released (the “Release Collateral”). Concurrently with such substitution of collateral (a) Pledgor or its affiliate, as applicable, shall execute and deliver to Pledgee all documents, instruments and financing statements necessary to perfect the lien and security interest in the Substitute Collateral and (b) Pledgee shall execute and deliver to Pledgor all documents, instruments, releases and financing statement amendments or terminations necessary to release Pledgee’s lien and security interest in the Release Collateral. Pledgor shall pay all costs and expenses of substituting and releasing collateral pursuant to this Section 16(d), including filing and recording expenses, and the reasonable fees and disbursements of Pledgee’s legal counsel incurred in connection with such substitution of collateral.
(e) Pledgor or Pledgee may request on or prior to January 30th of each applicable year that the Approved Petroleum Engineer prepare an annual Reserve Report evaluating the Production Payment as of the immediately preceding December 31st. Promptly after receipt of any such annual Reserve Report or the occurrence and continuance of a Material Event, upon the written request of Pledgee, applicable calculations shall be made to determine whether a Value Gap exists; provided that, upon the occurrence and continuance of a Material Event described in clause (b) of the definition thereof, the Pledgor and Pledgee may agree to undertake an update of the most recent Reserve Report. If it is determined that a Value Gap exists, then Pledgor or one or more of its affiliates will, as soon as practicable (but in any event no later than thirty days after the date on which it was determined that a Value Gap exists or such later date as is reasonably necessary for Pledgee to value and accept such additional Property as Collateral and for the grantor thereof and Pledgee to document and perfect its lien or security interest therein), at its option, either, or any combination of the following, (i) grant to Pledgee a perfected security interest in additional Property, (ii) convey additional overriding royalty interests created hereunder Sections 3.2 to Verano or otherwise increase the Production Payment Value or (iii) make one or more additional Contributions payments so as to decrease the Current Total Subject Amount, such that the total remaining Production Payment Value, together with the value of any additional Property provided as Collateral pursuant to clause (i) of this sentence and 3.3 above; andtogether with reductions to the then Current Total Subject Amount resulting from additional Contribution payments, reduces the Value Gap to at least zero.
(viif) Promptly after Pledgor becomes aware of the Pledgor occurrence of any Material Event, it shall promptly deliver provide notice thereof to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirePledgee.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and warrants to, to Secured Party as of the date hereof (which representations and covenants with, warranties shall survive the execution and delivery of this Agreement and the making of Advances under the Loan Agreement) as to the Collateral Agent listed on the Schedule hereto applicable to such Pledgor as follows:
(i) it (i) Each Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented toa corporation, and is not otherwise aware ofwith Chief Executive Offices located at 0000 Xxxxxxxxx Xxxx, any person (other than the Secured Parties) having Control overXxxxx 000, or any other interest inXxxxxxxx, the Collateral Account Property credited to the Collateral AccountXxxxxxxx 00000;
(ii) it Pledgor has not granted all requisite power and will not grantauthority to (A) own the Collateral, (B) execute, deliver and perform this Agreement, (C) pledge the Collateral, and (D) grant the security interests and Liens in the Collateral pursuant to this Agreement, and Pledgor is under no legal restriction, or permit limitation that would prevent it from doing any of the foregoing;
(iii) the execution, delivery and performance by Pledgor of this Agreement have been duly and validly authorized by all necessary actions on the part of Pledgor (none of which actions have been modified or rescinded, and all of which actions are in full force and effect), and this Agreement has been duly executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to existthe effect of any applicable bankruptcy, any security moratorium, insolvency, reorganization or other interest similar law affecting the enforceability of creditors' rights generally and to the effect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or any right or claim in equity);
(including any adverse claimiv) Pledgor is, or, with respect to the Collateral except those contemplated described in clauses (ii) and (iii) of the definition of Collateral not later than the time of delivery of certificates therefor will be, the direct record and beneficial owner of each share, security and other interest that comprise the Collateral, and Pledgor has and will have good, valid and marketable title thereto, free and clear of all Encumbrances other than the security interests created by this Agreement;
(v) all of the Collateral has been, or, with respect to the Collateral described in clauses (ii) and (iii) of the definition of Collateral not later than the time of delivery of certificates therefor will be, duly and validly issued, fully paid and nonassessable;
(vi) the Collateral described in clause (i) of the definition of Collateral constitutes (a) 100 % of the issued and outstanding capital stock and other equity securities and ownership interests of Borrower and (b) 100% of the issued and outstanding capital stock and other equity securities and ownership interests of each Subsidiary Guarantor (calculated on a fully diluted, as converted basis);
(vii) the Collateral is and will be duly and validly pledged to Secured Party in accordance with law, and Secured Party has a good, valid and perfected first priority Lien on and security interest in the Collateral and the proceeds thereof subject to no authorizationEncumbrances in favor of any other Person, approval and no filing or other action will be necessary to perfect or protect such Lien or security interest;
(viii) the execution, delivery and performance by Pledgor of this Agreement and the consummation of the transactions and the creation and granting of the security interests and Liens contemplated thereby do not and will not (A) conflict with or violate the certificate of incorporation, by-laws, limited liability company agreement or similar documents of Pledgor, Borrower or any Subsidiary Guarantor whose securities constitute part of the Collateral; (B) be in conflict with, result in a breach of, constitute a default of or an event of default under, or an event which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default under, require any consent under, or result in or require the acceleration of any indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor, Borrower or any such Subsidiary Guarantor is a party or by which Pledgor, Borrower or any such Subsidiary Guarantor or any of its or their respective properties or assets are bound or subject; (C) conflict with or violate any provision of any applicable law, statute, rule, regulation, ordinance, license or tariff or any judgment, decree or order of any court or other Governmental Authority binding on or applicable to Pledgor, Borrower or any such Subsidiary Guarantor or any of their respective properties or assets, or (D) result in the creation or imposition of any Lien of any nature whatsoever upon any of the properties or assets of Pledgor, Borrower or any such Subsidiary Guarantor except those contemplated hereunder;
(ix) no approval, consent or authorization of, filing, registration or qualification with, or other action by, Pledgor, Borrower, any such Subsidiary Guarantor, any Governmental Authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor or consummation of the transactions or creation or granting of the Liens and security interests contemplated hereby;
(x) there is no notice action, claim, suit, proceeding or investigation pending or, to the knowledge of Pledgor, currently threatened or reasonably anticipated, against or affecting Pledgor, Borrower, any such Subsidiary Guarantor, this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or Governmental Authority, or that questions or could prevent the validity of this Agreement or the right or ability of Pledgor to enter into this Agreement or to consummate the transactions or create or grant the Liens and security interests contemplated hereby;
(xi) no Pledgor is (A) a party or subject to any judgment, order or decree or any agreement, document or instrument or subject to any restriction, any of which do or could adversely affect or prevent Pledgor's ability to execute or deliver or to perform under or to observe the covenants and agreements contained in this Agreement; or (B) in default or breach of the performance, observance or fulfillment of any obligation, covenant or condition contained in any agreement or instrument to which Pledgor or such Person is a party or by which any of its or their properties or assets are bound or subject;
(xii) Pledgor is in compliance with all laws, statutes, rules, regulations, ordinances and tariffs applicable to Pledgor and Pledgor's assets and properties and is not in violation in any material respect of any order, judgment or decree of any court or other Governmental Authority or arbitration board or tribunal;
(xiii) neither Pledgor, Borrower nor any such Subsidiary Guarantor is a party to or filing withhas entered into any agreement, any governmental authority document or regulatory body in instrument that conflicts with this Agreement or that otherwise relates to the United States is required for either Collateral;
(axiv) the grant by obligations of Pledgor under this Agreement are not subordinated in any way to any other obligation of Pledgor or to the Pledgor rights of any other Person; and
(xv) the foregoing representations and warranties are made with the knowledge and intention that Secured Party will rely thereon and that such representations and warranties shall survive the execution and delivery of this Agreement.
(b) Until all Secured Obligations have been performed in full and indefeasibly paid in full in cash or until all of the Collateral is returned to Pledgor pursuant to this Agreement, whichever is earlier, Pledgor hereby covenants that, unless Secured Party otherwise consents in advance in writing:
(i) Pledgor shall, and shall cause Borrower and any Subsidiary Guarantor whose securities constitute part of the Collateral to: (A) at the request of Secured Party, execute, obtain, deliver, file, register and/or record any and all financing statements, continuation statements, stock powers, instruments and other documents, or cause the execution, filing, recording or delivery of any and all of the foregoing, that are necessary or required under law or otherwise reasonably requested by Secured Party to be executed, filed, registered, obtained, delivered or recorded to create, perfect, preserve, validate or otherwise protect the pledge of the Collateral to Secured Party and Secured Party's perfected first priority security interest in and Lien on the Collateral; (B) maintain, or cause to be maintained, at all times, the pledge of the Collateral to Secured Party and Secured Party's perfected first priority Lien on and security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or Collateral; (bC) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the Secured Party's security interest of the Collateral Agent in the Collateral therein and the perfected first priority thereof against any Lien, in each case Lien thereon against all claims and demands of all persons Persons at any time claiming the same or any interest therein adverse to Secured Party, and pay all costs and expenses (including, without limitation, Secured Party's in-house documentation and diligence fees and legal expenses and reasonable attorneys' fees and expenses) in connection with such defense, which may at Secured Party's discretion be charged to Pledgor's account and added to the Secured Obligations, and (D) if Secured Party so demands in writing in accordance with this Agreement, deliver all replacements, products and proceeds of, and dividends, distributions in property, returns of capital or other distributions made on or with respect to, the Collateral to Secured Party promptly upon receipt in a form and manner satisfactory to Secured Party;
(ii) Pledgor shall not sell, lease, transfer, pledge, assign or otherwise dispose of any of the Collateral or any interest therein, and Pledgor shall not create, incur, assume or suffer to exist any Encumbrance with respect to any of the Collateral or any interest therein (except pursuant hereto);
(iii) Pledgor shall, and shall cause each entity whose securities constitute part of the Collateral to: (A) preserve and maintain its existence in good standing (except as permitted or required under the Loan Agreement); (B) comply with the requirements of all applicable laws, rules, statutes, regulations, ordinances and tariffs and orders of all applicable Governmental Authorities; (C) immediately upon the occurrence thereof and in any event within two (2) calendar days after obtaining knowledge thereof, give written notice to Secured Party of (1) any action, suit, litigation, investigation or proceeding of any kind pending, instituted or threatened against or affecting, involving or relating to Pledgor, Borrower, any such Subsidiary Guarantor or the Collateral or any of their respective properties or assets, whether or not the claim is covered by insurance, (2) the filing, recording or assessment of any federal, state, local or foreign tax lien against the Collateral, Pledgor, Borrower or any such Subsidiary Guarantor, (3) the occurrence of any Default or Event of Default, which notice shall specify the nature and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, (4) the occurrence or existence of any event, fact, circumstance or condition which constitutes or results in, or would constitute or result in with the giving of notice or passage of time or both, a Default or an Event of Default, which notice shall specify the nature and status thereof, the period of existence thereof and what action is proposed to be taken with respect thereto, (5) a default or assertion of a default under any other agreement, instrument or indenture to which Pledgor, Borrower or any such Subsidiary Guarantor is a party or by which any of them or the Collateral may be bound or subject, and (6) any other development, event, fact, circumstance, condition or action of any nature against or affecting Pledgor, Borrower or any such Guarantor or otherwise, which could reasonably be expected to have, lead to or result in a Material Adverse Effect, a Default, an Event of Default or a material adverse effect upon the value of the Collateral or in any loss or damage to the Collateral in excess of $10,000, however occasioned, in each case describing the nature and status thereof and the action proposed to be taken with respect thereto.
(iv) Pledgor shall, and shall cause Borrower and each Subsidiary Guarantor whose securities are included in the Collateral to, (A) pay and discharge all debts and perform all obligations promptly and in accordance with the terms thereof, (B) pay and discharge promptly all taxes, assessments, fees, governmental charges, levies, claims for labor, supplies, rent and all other obligations or liabilities of any kind imposed upon such Person or upon the Collateral before the same shall become past due, except liabilities being contested in good faith and against which adequate reserves have been established, except where the failure to perform, comply or pay could not reasonably be expected to have a Material Adverse Effect, (C) obtain and deliver all required consents, approvals and agreements from such Persons as Secured Party shall determine are necessary or desirable with respect to claims against Pledgor, Borrower, any such Subsidiary Guarantor or the Collateral or with respect to any agreement, consent, document or instrument to which any of them is a party or by which any of their properties or assets are bound or subject, (D) perform in accordance with its terms every contract, agreement or other arrangement (oral or written) to which it is a party or by which it or any of the Collateral is bound, (E) comply with all laws, statutes, rules, regulations, ordinances and tariffs of any applicable Governmental Authority with respect or applicable to its business, assets or operations or to the Collateral, and (F) furnish to Secured Party such additional information as Secured Party may reasonably request from time to time;
(v) Pledgor shall not take or permit to be taken, or permit Borrower or any Subsidiary Guarantor whose securities are included in the Collateral to take or permit to be taken, any action in connection with the Collateral or otherwise which would impair the value of any part of the Collateral or the value of the interests or rights of Pledgor or Secured Party therein or with respect thereto, including, without limitation, any amendment to or modification of the certificate of incorporation (or similar charter documents) or bylaws (or similar documents) of Pledgor, Borrower or any such Subsidiary Guarantor;
(vi) Pledgor shall, and shall cause Borrower and any Subsidiary Guarantor whose securities are included in the Collateral to, keep true, complete and accurate books of record with respect to the Collateral in accordance with commercially reasonable business practices;
(vii) Pledgor will shall, and shall cause Borrower and any Subsidiary Guarantor whose securities are included in the Collateral to, take all necessary and appropriate actions to ensure that (A) this Agreement and the security interests and Liens created hereby are and remain enforceable against Pledgor in accordance with its and their terms, and (B) Pledgor complies with each of its covenants, agreements and obligations under this Agreement; and
(viii) Pledgor shall not, and shall not enter into permit Borrower or any Subsidiary Guarantor whose securities are included in the Collateral to, cause or permit to be done, or become a party to any agreement (oral or take written), arrangement or commitment to do or cause to be taken done, any action that could impair of the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirethings prohibited by this Agreement.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledged LLC Interest. Pledgor represents and hereby represents, warrants to, and covenants with, the Collateral Agent as follows:
(ia) it ERC (i) is a limited liability company duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCC) State of the Collateral Account Delaware, and the Collateral Account Property from time has all company powers and all material governmental licenses, authorizations, consents and approvals required to time credited to the Collateral Account carry on its business as now conducted, and (ii) has not consented tofiled or caused to be filed all federal and state tax returns which are required to be filed and has paid or caused to be paid all amounts of taxes required to be paid by it, except for such taxes (x) as are being contested in good faith by proper proceedings and (y) against which adequate reserves shall have been established in accordance with and to the extent required by GAAP.
(b) Pledgor is the sole member of ERC.
(c) As of the date hereof, Dean A. Christiansen, Lord SPV, is the sole Independent Manager (as xxxxxxx xx xxx XXX Xgreement) of ERC, and Christopher D. Cerf and Peter T. Levine are the only Managers (as dexxxxx xx xxx XXX Xxreemexx) xx XXX.
(d) Pledgor owns the Pledged LLC Interest free and clear of any Liens, other than Permitted Liens.
(e) Pledgee has and shall have a valid, enforceable and perfected first priority Lien on the Pledged LLC Interest and the proceeds thereof. No security agreement, financing statement or other public notice with respect to all or any part of the Pledged LLC Interest is on file or of record in any public office, except as may be filed pursuant to the terms of this Agreement.
(f) Pledgor's membership interest in ERC has been duly authorized, validly issued and is fully paid and non-assessable. Pledgor has paid in full its capital contribution to ERC as recorded on the books and records of ERC, and, except as set forth in the Merrill Loan Agreement, Pledgor is not otherwise aware of, required to contribute any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited adxxxxxxxl amounts to the Collateral Account;capital of ERC.
(iig) it has not granted and No litigation, investigation or proceeding of or before any arbitrator or governmental authority is pending or, to the knowledge of the Pledgor, threatened by or against ERC or against any of its properties or assets.
(h) Pledgor will not grantcreate, incur or permit to exist, will defend the Pledged LLC Interest against, and will take such other action as is necessary to remove, any security or other interest in or any right Lien or claim (including any adverse claim) on or to the Collateral except those contemplated Pledged LLC Interest, other than the Lien created by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transferother Permitted Liens, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to defend the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any right, title and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in Pledgee in, to and under the Collateral and Pledged LLC Interest against the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;whomsoever.
(vii) The LLC Agreement does not and will not prohibit, restrict or otherwise interfere with Pledgee's rights under this Agreement, including, but not limited to Pledgee's right, in the event of a default by Pledgor, under Section 6 of this Agreement, to receive and retain as additional collateral all distributions and interest in respect of the Pledged LLC Interests.
(j) Pledgor will not enter into any agreement cause or take or cause permit ERC to be taken any action that could impair violate the Collateral Agent's rights terms of the LLC Agreement. Except as provided in the Collateral Merrill Loan Agreement, the Purchase and Contribution Agreement, and xxxx xespect to any Permitted ERC Financing, Pledgor will not cause or the security interests created hereunder Sections 3.2 and 3.3 above; and
permit ERC to (viii) the Pledgor shall promptly deliver acquire any assets, (ii) transfer or dispose of all or any portion of any asset (including by license, lease, participation or encumbrance of any kind), (iii) incur any indebtedness, (iv) issue any guarantees, or (v) otherwise incur or contract to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireincur any obligation of any kind whatsoever.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account legal, record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and (ii) has not consented good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accountsecurity interests created by this Agreement;
(ii) it has full power, authority and legal right to pledge all the Securities pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms except as the enforceability thereof may be limited by bankruptcy, reorganization, moratorium or similar laws relating to or limiting creditors' rights generally or by equitable principles (regardless of whether enforcement is sought in equity or in law);
(iv) no consent of any other party (including, without limitation, any stockholder, member, limited or general partner or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required to be obtained by such Pledgor in connection with (a) the execution, delivery or performance of this Agreement, (b) the validity or enforceability of this Agreement, (c) the perfection or enforceability of the Pledgee's security interest in the Collateral or (d) except for compliance with or as may be required by applicable securities laws, the exercise by the Pledgee of any of its rights or remedies provided herein;
(v) the execution, delivery and performance of this Agreement does not granted violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or domestic or foreign governmental authority, or of the certificate of incorporation, certificate of formation or by-laws, as the case may be, of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any indenture, mortgage, lease, deed of trust, credit agreement, loan agreement, agreement or other instrument to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will not grant, result in the creation or permit to exist, imposition of any security lien or other interest in encumbrance on any of the assets of such Pledgor or any right or claim (including any adverse claim) to the Collateral of its Subsidiaries except those as contemplated by this Agreement;
(iiivi) no authorizationall the shares of Stock have been duly and validly issued, approval or are fully paid and nonassessable (other action bythan pursuant to Section 630 of the New York Business Corporation Law, and no notice to or filing with, any governmental authority or regulatory body in the United States case of Stock of a Subsidiary that is required for either a New York Corporation) and are subject to no options to purchase or similar rights;
(avii) each of the Pledged Notes constitute, or, when executed by the obligor thereof, will constitute, the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms; and
(viii) the grant by pledge, assignment and delivery to the Pledgor Pledgee of the Securities pursuant to this Agreement, creates a valid and perfected first security interest in such Securities and the Collateral purported proceeds thereof, subject to be created in favor no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Collateral Agent hereunder or Securities.
(b) Each Pledgor covenants and agrees that it will defend the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the CollateralPledgee's right, except for (i) filings title and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Securities and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;time hereafter pledged to the Pledgee as Collateral hereunder and will likewise defend the right thereto and security interest therein of the Pledgee and the Secured Creditors.
(vic) Each Pledgor covenants and agrees that it will take no action which would violate any of the Pledgor will not enter into terms of any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireSecured Debt Agreement.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. The Pledgor represents, warrants and covenants that (a) The Pledgor represents it is the legal, record and warrants beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and covenants with, the Collateral Agent as follows:
security interests created by this Agreement; (i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(iib) it has not granted full power, authority and will not grantlegal right to pledge all the Securities pledged by it pursuant to this Agreement; (c) this Agreement has been duly authorized, executed and delivered by the Pledgor and constitutes a legal, valid and binding obligation of the Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or permit to existsimilar laws generally affecting creditors' rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); (d) no consent of any other party (including, without limitation, any security stockholder or other interest in creditor of the Pledgor or any right or claim (including any adverse claimof its Subsidiaries) to the Collateral except those contemplated by this Agreement;
(iii) and no authorizationconsent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant to be obtained by the Pledgor in connection with the execution, delivery or performance of this Agreement, except those which have been obtained or made or as may be required by laws affecting the security interest offering and sale of securities generally in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) connection with the exercise by the Collateral Agent or Pledgee of its remedies hereunder; (e) the Administrative Agent execution, delivery and performance of this Agreement does not violate any provision of any rights applicable law or remedies in respect regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral, except for (i) filings and other actions necessary to perfect certificate of incorporation or by-laws of the security interest on the Collateral granted Pledgor or of any securities issued by the Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, loan agreement, credit agreement or other material agreement, instrument or undertaking to which the Pledgor or any of its Subsidiaries is a party or which purports to be binding upon the Pledgor or any of its Subsidiaries or upon any of their respective assets and will not result in favor the creation or imposition of any lien or encumbrance on any of the Collateral Agent assets of the Pledgor or any of its Subsidiaries except as may be required under Section 3.5 above, and contemplated by this Agreement; (iif) all the approvals, consents, exemptions, authorizations, actions, notices and filings which shares of the Stock pledged by the Pledgor hereunder have been duly obtainedand validly issued, takenare fully paid and non-assessable; (g) each of the Pledged Notes pledged by the Pledgor hereunder, given when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or made similar laws generally affecting creditors' rights and are by equitable principles (regardless of whether enforcement is sought in full force equity or at law); and effect;
(ivh) other than the pledge and assignment of the Securities pledged by the Pledgor pursuant to this Agreement, together with the Custody Agreement, the Credit delivery of such Securities pursuant to this Agreement and any customary funds transferrelevant filings or recordings (which delivery, account filings and recordings have been made or other customer obtained), creates a valid and perfected first security interest in such Securities and the proceeds thereof, subject to no prior lien or encumbrance or to any agreement with purporting to grant to any third party a lien or encumbrance on the Custodian not inconsistent with this Agreement, property or assets of the Pledgor has not entered into which would include such Securities. The Pledgor covenants and agrees that it will not enter into any agreement with any person relating defend the Pledgee's right, title and security interest in and to the Collateral Account or any Collateral Account Property;
(v) Securities pledged by the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral hereunder and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and the Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the Secured Parties.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
to itself that (i) it on the date hereof (iA) is the sole entitlement holder (within Pledged Stock held by the meaning of Section 8-102(a)(7) Pledgor consists of the UCCnumber and type of shares of (or Warrants to purchase shares of) the stock of the Collateral Account corporations as described in Annex A hereto; (B) such Pledged Stock constitutes that percentage of the issued and outstanding Capital Stock of (or, in the Collateral Account Property from time case of Warrants, the right to time credited to purchase that percentage of the Collateral Account issued and outstanding capital stock of) the issuing corporation as is set forth in Annex A hereto; (C) the Pledged Notes held by the Pledgor consist of the promissory notes described in Annex B hereto; and (iiD) has not consented to, and is not otherwise aware of, any person (other than on the Secured Parties) having Control over, or any other interest indate hereof, the Collateral Account Property credited to the Collateral Account;
Pledgor owns no other Pledged Securities; (ii) it is the legal, record and beneficial owner of, and has not granted good and will not grantmarketable title to, or permit all Pledged Securities pledged by it hereunder, subject to existno pledge, any lien, mortgage, hypothecation, security interest, charge, option or other interest in or any right or claim (including any adverse claim) to encumbrance whatsoever, except the Collateral except those contemplated liens and security interests created by this Agreement;
; (iii) it has full power, authority and legal right to pledge all the Pledged Securities pledged by it pursuant to this Agreement; (iv) this Agreement has been duly authorized, executed and delivered by the Pledgor and constitutes a legal, valid and binding obligation of the Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (v) except to the extent already obtained or made no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of the Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant to be obtained by the Pledgor in connection with the execution, delivery or performance of the security interest this Agreement, or in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) connection with the exercise by the Collateral Agent or the Administrative Agent Pledgee of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest disposition of the Collateral Agent in Pledged Securities by laws affecting the Collateral offering and the first priority thereof against any Lien, in each case against all claims and demands sale of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.securities
Appears in 1 contract
Samples: Pledge Agreement (Consumers Us Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, to Secured Party as of the date hereof (which representations and covenants with, warranties shall survive the Collateral Agent execution and delivery of this Agreement) as follows:
(i) it (i) Pledgor is a corporation duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCCState of Delaware and has full power, right and authority to (A) of own the Collateral Account Pledged Collateral, (B) execute, deliver and perform this Agreement, (C) pledge the Collateral Account Property from time to time credited to the Collateral Account Pledged Collateral, and (iiD) has not consented to, grant the security interests and Liens in the Pledged Collateral pursuant to this Agreement and otherwise consummate the transactions contemplated under the other Loan Documents to which it is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Accounta party;
(ii) it has not granted the execution, delivery and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated performance by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of this Agreement and the security interest in the Collateral purported to be created in favor consummation of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which transactions contemplated hereby have been duly obtainedand validly authorized by all necessary actions on the part of Pledgor (none of which actions have been modified or rescinded, taken, given or made and all of which actions are in full force and effect), and this Agreement has been duly executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of Pledgor, enforceable against Pledgor in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity which may limit the availability of equitable remedies (whether in a proceeding at law or in equity);
(iii) Pledgor is with respect to the Pledged Collateral described in the definition of Pledged Collateral, the direct record and beneficial owner of each share, security and other interest that comprises the Pledged Collateral, and Pledgor has and will have good, valid and marketable title thereto, free and clear of all Encumbrances other than the security interests created by this Agreement; and Holdings is the direct record and beneficial owner of each share, security and other interest that comprises ownership interests in “OmniVision Hong Kong” (as defined herein) (other than one share owned by Xxxx-Xxxx Hong and one share owned by Xinping He (both of which shares are held in trust for Pledgor)) and Holdings has and will have good, valid and marketable title thereto, free and clear of all Encumbrances;
(iv) other than this Agreementall of the Pledged Collateral has been, the Custody Agreementor, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating respect to the Pledged Collateral Account or any described in the definition of Pledged Collateral Account Propertynot later than the time of delivery of certificates therefor will be, duly and validly issued, fully paid and nonassessable;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to Pledged Collateral described in the definition of Pledged Collateral and (ii) the security interest constitutes 65% of the Collateral Agent in the Collateral issued and the first priority thereof against any Lienoutstanding capital stock of Holdings (calculated on a fully diluted, in each case against all claims and demands of all persons at any timeas converted basis);
(vi) the Pledgor Pledged Collateral is and will not enter into any agreement or take or cause be duly and validly pledged to be taken any action that could impair the Collateral Agent's rights Secured Party in accordance with law, and Secured Party has a good, valid and perfected first priority Lien on and security interest in the Pledged Collateral or and the security interests created hereunder Sections 3.2 and 3.3 above; andproceeds thereof subject to no Encumbrances in favor of any other Person;
(vii) the execution, delivery and performance by Pledgor shall promptly deliver of this Agreement and the. consummation of the transactions and the creation and granting of the security interests and Liens contemplated thereby do not and will not (A) conflict with or violate the certificate of incorporation, by-laws, limited liability agreement or similar documents of Pledgor or of any entity whose securities constitute part of the Pledged Collateral or any agreement by and between Pledgor or any such entity and its respective shareholders or equity owners or among any such shareholders or equity owners; (B) conflict with, result in a breach of, constitute a default of or an event of default under, or any event, fact, condition or circumstance which, with notice or passage of time or both, would constitute or result in a conflict, breach, default or event of default under, require any consent not obtained under, or result in or require the acceleration of any indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor or any entity whose securities constitute part of the Pledged Collateral is a party or by which Pledgor or any entity whose securities constitute part of the Pledged Collateral or any of its or their respective properties or assets are bound or subject, the effect of which could reasonably be expected to have or result in a Material Adverse Effect; (C) conflict with or violate any provision of any applicable law, statute, rule, regulation, ordinance, license or tariff or any judgment, decree or order of any court or other Governmental Authority binding on or applicable to Pledgor or any entity whose securities constitute part of the Pledged Collateral or any of its or their respective properties or assets or any of the Pledged Collateral, or (D) result in the creation or imposition of any Lien of any nature whatsoever upon any of the properties or assets of Pledgor or any entity whose securities constitute part of the Pledged Collateral except those contemplated hereunder;
(viii) no approval, consent or authorization of, filing, registration or qualification with, or other action by, Pledgor or any entity whose securities constitute part of the Pledged Collateral, any Governmental Authority or any other Person is or will be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor or consummation of the transactions or creation or granting of the Liens and security interests contemplated hereby;
(ix) there is no action, claim, suit, proceeding or investigation pending or, to the knowledge of Pledgor, currently threatened against or affecting the Pledged Collateral, or Pledgor or any entity whose securities constitute part of the Pledged Collateral, or this Agreement or the transactions contemplated hereby, before or by any court, arbitrator or Governmental Authority (a) that questions or could prevent the validity of this Agreement or the right or ability of Pledgor to enter into this Agreement or to consummate the transactions or create or grant the Liens and security interests contemplated hereby,
(b) that could reasonably be expected to have or result in, either individually or in the aggregate, any Material Adverse Change or Material Adverse Effect, or (c) that could reasonably be expected to result in any change in the current equity ownership of Pledgor or any entity whose securities constitute part of the Pledged Collateral Agent or otherwise in a Change of Control, nor is Pledgor aware that there is any basis for any of the foregoing;
(x) neither Pledgor nor any entity whose securities constitute part of the Pledged Collateral is (A) a party or subject to any judgment, order or decree or any agreement, document or instrument or subject to any restriction, any of which do or would materially adversely affect or prevent Pledgor’s ability to execute or deliver, or perform under, consummate the transactions contemplated by or to observe the covenants and Administrative Agent agreements contained in, this Agreement; (B) to Pledgor’s knowledge, in default or breach of the performance, observance or fulfillment of any obligation, covenant or condition contained in any agreement, document or instrument to which Pledgor or such documents relating entity is a party or by which any of its or their properties or assets are bound or subject, which default or breach, if not remedied within any applicable grace or cure period could reasonably be expected to have or result in a Material Adverse Effect, nor is there any event, fact, condition or circumstance which, with notice or passage of time, or both, would constitute or result in a conflict, breach, default or event of default under, any of the foregoing which, if not remedied within any applicable grace or cure period could reasonably be expected to have or result in a Material Adverse Effect; or (C) a party or subject to any agreement (oral or written), document or instrument with respect to, or obligation to pay any, service or management fee with respect to the Collateral Account as ownership, operation, leasing or performance of any of its business or any facility, nor is there any manager with respect to any such facility.
(xi) [omitted];
(xii) the Collateral Agent obligations of Pledgor under this Agreement are not subordinated in any way to any other obligation of Pledgor or Administrative Agent may reasonably requireto the rights of any other Person; and
(xiii) Other than the capital stock, there are no equity securities or other ownership interests in Holdings (nor will any be issued).
Appears in 1 contract
Samples: Stock Pledge Agreement (Omnivision Technologies Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, to Secured Party as of the date hereof and covenants with, as of each Borrowing Date (which representations and warranties shall survive the Collateral Agent execution and delivery of this Agreement) as follows:
(i) it Pledgor is, or, with respect to the Pledged Collateral described in clauses (iii) is the sole entitlement holder and (within the meaning of Section 8-102(a)(7iii) of the UCC) definition of Pledged Collateral not later than the Collateral Account time of delivery of certificates therefor will be, the direct record and beneficial owner of each share, security and other interest that comprises the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented toPledged Collateral, and is not otherwise aware ofPledgor has and will have good, any person (valid and marketable title thereto, free and clear of all Liens other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated interests created by this Agreement;
(ii) all of the Pledged Collateral has been, or, with respect to the Pledged Collateral described in clauses (ii) and (iii) no authorizationof the definition of Pledged Collateral not later than the time of delivery of certificates therefor will be, approval or other action byduly and validly issued, fully paid and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either nonassessable;
(aiii) the grant by the Pledgor of the security interest Pledged Collateral described in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for clause (i) filings of the definition of Pledged Collateral constitutes the percentage set forth on Schedule 1 of the issued and outstanding equity, membership or limited partnership interests, as applicable, of each Guarantor, Subsidiary of Pledgor and other actions necessary to perfect the security Person in which such Pledged Collateral represents an ownership interest (calculated on the Collateral granted by the Pledgor in favor of the Collateral Agent a fully diluted, as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectconverted basis);
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into Pledged Collateral is and will not enter into be duly and validly pledged to Secured Party in accordance with law, and Secured Party has a good, valid and perfected first priority lien on and security interest in the Pledged Collateral and the proceeds thereof subject to no Liens in favor of any agreement with any person relating to the Collateral Account or any Collateral Account Propertyother Person;
(v) the obligations of Pledgor will take under this Agreement are not subordinated in any way to any other obligation of Pledgor or to the rights of any other Person.
(b) Until all Secured Obligations (exclusive of any indemnity obligations with respect to which no claim has been made and all actions necessary or desirable which pursuant to defend the provisions of the Loan Agreement survive termination of the Loan Agreement) have been performed and satisfied in full and indefeasibly paid in full in cash and the Loan Agreement has been terminated, Pledgor hereby covenants that:
(i) title Pledgor shall not sell, lease, transfer, pledge, assign or otherwise dispose of any of the Pledged Collateral or any interest therein, and Pledgor shall not create, incur, assume or suffer to exist any Lien upon, in, against or with respect to any of the Pledged Collateral and or any interest therein except in accordance with the provisions of the Loan Agreement;
(ii) the security interest Pledgor shall, and shall cause each entity whose securities constitute part of the Pledged Collateral Agent to, keep true, complete and accurate books of record with respect to the Pledged Collateral in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 aboveaccordance with commercially reasonable business practices; and
(viiiii) Except for actions permitted pursuant to the Loan Agreement, Pledgor shall promptly deliver not take or permit to be taken, or permit or cause any entity whose securities constitute part of the Pledged Collateral Agent and Administrative Agent to take or permit to be taken, any action in connection with the Pledged Collateral or otherwise which would impair the value of the Pledged Collateral or any portion thereof or the value of the interests or rights of Pledgor or Secured Party therein or with respect thereto, including, without limitation, any amendment to or modification of the certificate of incorporation (or similar charter documents) or bylaws (or similar documents) of Pledgor or such documents relating to Person which would result in or cause any of the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireforegoing.
Appears in 1 contract
Samples: Pledge and Security Agreement (Skilled Healthcare Group Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clause (within the meaning c) of Section 8-102(a)(7) 9.6 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by the Pledgor and constitutes a legal, valid and binding obligation of the Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of the Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted obtained by the Pledgor in favor connection with the execution, delivery or performance of this Agreement, or in connection with the Collateral Agent exercise of its rights and remedies pursuant to this Agreement, except as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by the Pledgor will take does not violate any and all actions necessary provision of any applicable law or desirable to defend (i) title to the Collateral and (ii) the security interest regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateral Agent certificate of incorporation or by-laws of the Pledgor or of any securities issued by the Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other agreement or material instrument to which the Pledgor or any of its Subsidiaries is a party or which purports to be binding upon the Pledgor or any of its Subsidiaries or upon any of their respective assets and will not result in the Collateral and creation or imposition of any lien or encumbrance on any of the first priority thereof against any Lien, in each case against all claims and demands assets of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.any
Appears in 1 contract
Samples: Credit Agreement (Agency Com LTD)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants torepresents, warrants, and covenants with, the Collateral Agent to Lender as follows:
(i) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) legal and beneficial owner of the UCC) Pledged Interests free and clear of any lien except for the Collateral Account security interest created by this Agreement and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral AccountLoan Documents;
(ii) it Pledgor has not granted full power and will not grant, or permit authority to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by enter into this Agreement;
(iii) there are no restrictions upon the voting rights associated with, or upon the transfer of, any of the Pledged Interests;
(iv) Pledgor has the right to vote, pledge and grant a security interest in or otherwise transfer the Pledged Interests;
(v) no authorization, approval approval, or other action by, and no notice to or filing with, any United States governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor pledge of the security interest in Pledged Interests pursuant to this Agreement or for the Collateral purported to be created in favor execution, delivery or performance of the Collateral Agent hereunder or (b) the exercise this Agreement by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any timePledgor;
(vi) each of the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 abovePledged Interests are set forth on Schedule A; and
(vii) each of the Pledged Interests certificated as of the date hereof shall at all times remain certificated, and in connection herewith, Pledgor shall promptly deliver such certificates to Lender endorsed to Lender in blank.
(viii) if any of the Pledged Interests which are not certificated as of the date hereof shall at any time become certificated, Pledgor will immediately notify Lender and deliver such certificates to Lender endorsed to Lender in blank.
(ix) Pledgor shall not enter into any agreements or instruments, that would (1) create or impose supermajority voting requirements in the organizational documents of Holdco or Borrower (by the relevant governing body of such entity or by its equity owners) for any corporate or company action other than with respect to a vote on the filing of a voluntary bankruptcy (it being understood and agreed that a voluntary bankruptcy is any bankruptcy filing other than one made by a third party, unaffiliated creditor of ECEC, Borrower, Holdco, or after the Closing, KEM (each a “Buyer Party”), or an affiliate solely because of the non-payment of debt by a Buyer Party or an affiliate); (2) dilute the ownership interests of Pledgor in Borrower, result in the issuance of additional equity interests of any kind (whether or not convertible) or cause Borrower to incur additional debt (except as permitted under the Notes) unless the holders of such additional equity interests or additional debt pledge such additional equity interests or subordinate such additional debt to Lender pursuant to an agreement substantially in the same form as this Agreement; provided, however, that if the proceeds of any such issuance of equity or incurrence of debt will be used to pay all amounts due with respect to the Collateral Agent Senior Note in full, then such issuance and/or incurrence shall be permitted and Administrative Agent the holders of such documents relating additional equity interests or debt shall not be required to pledge such additional equity or subordinated such additional debt as provided above in this clause (ix); (3) dilute the Collateral Account as ownership interest of Borrower in KEM in any respect; or (4) result in the Collateral Agent termination of the existence of any entity party to a Loan Document, whether by reorganization, winding up, merger, dissolution or Administrative Agent may reasonably requireotherwise.
Appears in 1 contract
Samples: Pledge Agreement (Cil&d, LLC)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants to, and covenants with, the Collateral Agent as follows:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either that: (a) it has, and on the grant by the Pledgor date of the security interest in the Collateral purported delivery to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the CollateralCollateral will have, except for (i) filings good and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) marketable title to the Collateral and full power, authority and legal right to pledge all of its right, title and interest in and to the Collateral pursuant to this Pledge Agreement; (iib) this Pledge Agreement has been duly executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable in accordance with its terms; (c) no consent of any other party (including, without limitation, creditors of Pledgor) and no consent, license, permit, approval or authorization of, exemption by, notice or report to or registration, filing or declaration with, any governmental authority, domestic or foreign, is required to be obtained by Pledgor in connection with the execution, delivery or performance of this Pledge Agreement; (d) the security interest execution, delivery and performance of this Pledge Agreement will not violate any provision of any applicable law, or of the certificate/articles of incorporation, bylaws, any shareholders' agreement or any securityholders' agreement of Pledgor or Pac-Van or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which Pledgor or Pac-Van is a party or which purports to be binding upon Pledgor or Pac-Van or upon any of their respective assets and will not result in the creation or imposition of any Lien on any of the assets of Pledgor except as contemplated by this Pledge Agreement; (e) except as provided by the Securities Act, the rules and regulations promulgated thereunder and state securities laws, there are no restrictions on the transferability of the Collateral to Agent or with respect to the foreclosure and transfer thereof by Agent or, if there are any such restrictions, any and all restrictions on such transferability have been duly waived with respect to this assignment, transfer, pledge, and grant of a security interest to Agent and with respect to the foreclosure and transfer thereof by Agent; and (f) the pledge, assignment and delivery of such Collateral pursuant to this Pledge Agreement will create a valid first Lien on all right, title and interest of Pledgor in or to such Collateral subject only to Permitted Encumbrances, and the proceeds thereof, subject to no prior Lien or to any agreement purporting to grant to any third party a Lien in the property or assets of Pledgor which would include the Collateral. The Collateral is fully paid and nonassessable. Pledgor covenants and agrees that it will defend Agent's right, title and Lien on the Collateral and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons Persons whomsoever; and covenants and agrees that it will have like title to and the right to pledge any other property at any time;
(vi) the Pledgor time hereafter pledged to Agent as Collateral hereunder and will not enter into any agreement or take or cause to be taken any action that could impair the Collateral defend Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 right thereto and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireLien thereon.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of Pledgor has all requisite capacity, power and authority, being under no legal restriction, limitation or disability, to own the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account execute, deliver and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;perform this Agreement.
(ii) it This Agreement has not granted been duly executed and will not grantdelivered by Pledgor and constitutes a legal, or permit to existvalid, any security or other interest and binding obligation of Pledgor, enforceable in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;accordance with its terms.
(iii) no authorizationPledgor is or, approval or with respect to the Collateral described in Sections 1(b)(ii) and (iii) hereof, not later than the time of delivery of certificates therefor will be, the direct record and beneficial owner of each share of the Collateral. Pledgor has and will have good, valid and marketable title thereto, free and clear of all Encumbrances other action bythan the security interest created by this Agreement.
(iv) The Collateral is and will be duly and validly pledged to Secured Party in accordance with law, and no notice to or filing withSecured Party has a good, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the valid, and perfected first priority security interest in the Collateral purported to and the proceeds thereof, and no filing or other action will be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the or protect such security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;interest.
(v) The execution, delivery and performance by Pledgor of this Agreement does not and will not: (A) conflict with or result in a breach of or constitute a default or require any consent under, or result in or require the acceleration of any of indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor is a party or by which Pledgor or any of his property may be bound or affected; or (B) conflict with or violate any judgment, decree, order, law, statute, ordinance, license or other governmental rule or regulation applicable to Pledgor.
(vi) No approval, consent or other action by Pledgor, any governmental authority, or any other person or entity is or will take be necessary to permit the valid execution, delivery or performance of this Agreement by Pledgor. Pledgor's spouse has waived any and all actions necessary ownership, joint tenancy, community property or desirable common law interest in, or other claim, whether in law or equity, that she may have to, the Collateral.
(vii) There is no action, claim, suit, proceeding or investigation pending, or to defend the knowledge of Pledgor, threatened or reasonably anticipated, against or affecting Pledgor, this Agreement, or the transactions contemplated hereby, before or by any court, arbitrator or governmental authority which might adversely affect Pledgor's ability to perform his obligations under this Agreement or might materially adversely affect the value of the Collateral.
(b) Until all Secured Obligations have been paid and performed in full or until all of the Collateral is returned to Pledgor pursuant to Section 6 hereof, whichever is earlier, Pledgor hereby covenants that, unless Secured Party otherwise consents in advance in writing:
(i) title Pledgor shall: (A) at the request of Secured Party, execute, deliver, and file any and all financing statements, continuation statements, stock powers, instruments, and other documents, necessary or desirable, in Secured Party's opinion, to create, perfect, preserve, validate or otherwise protect the Collateral and (ii) the security interest pledge of the Collateral Agent to Secured Party and Secured Party's lien on and security interest in the Collateral and the first priority thereof against any Lienthereof; (B) maintain, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair maintained, at all times, the pledge of the Collateral Agentto Secured Party and Secured Party's rights lien on and security interest in the Collateral or and the security interests created hereunder Sections 3.2 first priority thereof; and 3.3 above; and
(viiC) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably require.defend the
Appears in 1 contract
Samples: Restricted Share Award Agreement (Federal Realty Investment Trust)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder (within legal, record and beneficial owner of, and has good title to, all Pledged Securities, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the meaning of liens and security interests created by this Agreement and liens permitted under Section 8-102(a)(7) 9.01 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and Credit Agreement (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
including those referenced in Section 4.10 hereof); (ii) it has not granted requisite power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) to pledge all the Collateral except those contemplated by this Agreement;
Pledged Securities; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and, except for any approval of the Gaming Authorities that may be required as contemplated by Section 13.18(b) of the Credit Agreement or in connection with the exercise of any remedies hereunder, no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing (except any filings required under the Uniform Commercial Code, which filings have been made) or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of this Agreement, or in connection with the Collateral Agent hereunder exercise of its rights and remedies pursuant to this Agreement, except those which have been obtained or (b) made or as may be required by laws affecting the offer and sale of securities generally in connection with the exercise by the Collateral Agent or the Administrative Agent Pledgee of any rights or certain of its remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
hereunder; (v) the execution, delivery and performance of this Agreement by such Pledgor does not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws (or analogous organizational documents) of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, credit agreement or loan agreement, or any other material agreement, contract or instrument to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will take not result in the creation or imposition of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement; (vi) all the shares of Stock and all actions necessary Pledged Limited Liability Company Interests have been duly and validly issued, are fully paid and nonassessable and subject to no options to purchase or desirable to defend similar rights; (ivii) title to the Collateral best knowledge of the respective Pledgor, each of the Pledged Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (iiviii) subject to Section 4.2 hereof, the pledge, assignment and delivery to the Pledgee of the Pledged Securities creates a valid and perfected first security interest in such Securities, subject to no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Collateral Agent Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Collateral Securities and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Secured Creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants withthat (as respects the Company, the Collateral Agent as follows:
(i) it (i) is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account to itself and the Collateral Account Property from time to time credited to the Collateral Account each other Pledgor and (ii) has not consented to, and is not otherwise aware of, as respects any person Pledgor (other than the Secured PartiesCompany) having Control overas to itself only) (a) it is the legal, record and beneficial owner of, and has good and marketable title to, all Stock pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or any other interest inencumbrance whatsoever, except the Collateral Account Property credited liens and security interests created by this Agreement and except liens permitted pursuant to subsections (a) and (b) of Section 9.03 of the Collateral Account;
Credit Agreement; (iib) it has not granted full power, authority and will not grantlegal right to pledge all the Stock pledged by it pursuant to this Agreement; (c) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or permit to existsimilar laws generally affecting creditors’ rights and by equitable principles (regardless of whether enforcement is sought in equity or at law); (d) no consent of any other party (including, without limitation, any security stockholder or other interest in creditor of the Pledgor or any right or claim (including any adverse claimof its Subsidiaries) to the Collateral except those contemplated by this Agreement;
(iii) and no authorizationconsent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance by it of this Agreement, except those which have been obtained or made or as may be required by laws affecting the Collateral Agent hereunder or (b) offering and sale of securities generally in connection with the exercise by the Collateral Agent or Pledgee of its remedies hereunder; (e) the Administrative Agent execution, delivery and performance of this Agreement does not violate any provision of any rights applicable law or remedies in respect regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the Collateralcertificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries or of any mortgage, except for (i) filings indenture, lease, deed of trust, loan agreement, credit agreement or other material agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its subsidiaries or upon any of their respective assets and other actions necessary to perfect will not result in the security interest creation or imposition of any lien or encumbrance on the Collateral granted by the Pledgor in favor any of the Collateral Agent assets of such Pledgor or any of its Subsidiaries except as may contemplated by this Agreement; (f) all the shares of Stock pledged or purported to be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which pledged by such Pledgor have been duly obtainedand validly issued, taken, given are fully paid and nonassessable; and (g) the pledge and assignment of the Stock pledged or made and are in full force and effect;
(iv) other than purported to be pledged by such Pledgor pursuant to this Agreement, together with the Custody Agreement, the Credit delivery of such Stock pursuant to this Agreement and any customary funds transferrelevant filings or recordings (which delivery, account filings and recordings have been made or other customer agreement with obtained), creates a valid and perfected first security interest in such Stock and the Custodian not inconsistent with this Agreementproceeds thereof, the Pledgor has not entered into and will not enter into subject to no prior lien or encumbrance or to any agreement with purporting to grant to any person relating third party a lien or encumbrance on the property or assets of such Pledgor which would include the Stock. Each Pledgor covenants and agrees that it will defend the Pledgee’s right, title and security interest in and to the Collateral Account Stock pledged or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable purported to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral be pledged by it hereunder and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and each Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the Secured Creditors.
Appears in 1 contract
Samples: Pledge Agreement (Primedia Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The For so long as this Agreement shall remain in effect, the Pledgor represents and represents, warrants to, and covenants with, to and with the Collateral Administrative Agent as follows:
5.01 The Pledgor has the requisite power, authority and legal right to execute, deliver and perform its obligations under this Agreement and to pledge and grant a security interest in all of the Securities Collateral. The execution, delivery and performance of this Agreement, and the pledge of and granting of a security interest in the Securities Collateral hereunder, have been duly authorized by all necessary corporate or other action of the Pledgor and do not contravene (i) any law, rule or regulation, (ii) any provision of the Pledgor's charter documents or by-laws, (iii) any judgment, decree or order of any arbitrator, court or other adjudicatory or regulatory body or (iv) any agreement or instrument to which the Pledgor is a party or by which it or any of its property is bound or affected or constitute a default thereunder other than those, in the case of clauses (i) and (iv), that could not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
5.02 The Pledgor is the sole entitlement holder (within the meaning owner, legally, beneficially and of Section 8-102(a)(7) record, of all of the UCC) Scheduled Securities free of any Encumbrances, except for Encumbrances specifically permitted under the terms of the Collateral Account Loan Agreement. All of the Scheduled Securities have been duly and the Collateral Account Property from time validly issued, and are fully paid and nonassessable.
5.03 The Pledgor covenants that, with respect to time credited any Additional Securities that it may pledge to the Collateral Account Administrative Agent in the future, at the time of such pledge, (a) the Pledgor will be the legal, beneficial and record owner of such Additional Securities free of any Encumbrances, except for Encumbrances specifically permitted under the terms of the Loan Agreement, (b) the Pledgor will have the requisite legal right, power and authority to pledge same to the Administrative Agent hereunder and (c) all such Additional Securities shall be duly and validly issued, and will be fully paid and nonassessable.
5.04 Schedule 1 accurately sets forth as to each Issuer of Scheduled Securities (i) the total number of issued and outstanding Securities of such Issuer and (ii) has not consented to, and the total number of such Securities that have been pledged hereunder. With respect to each Foreign Subsidiary whose capital stock is not otherwise aware of, any person (other than pledged hereunder by the Secured Parties) having Control over, or any other interest inPledgor, the Collateral Account Property credited Pledgor has pledged stock representing at least 65%, but not more than 66 1/3% of the total combined voting power of all classes of capital stock of such Foreign Subsidiary entitled to vote.
5.05 Upon execution and delivery of the Collateral Account;
(ii) it has not granted Loan Documents by the parties thereto and will not grant, or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant delivery by the Pledgor of the Scheduled Securities and related certificates to the Administrative Agent accompanied by instruments of transfer or assignment duly executed in blank in form and substance reasonably satisfactory to the Administrative Agent or, if a security interest in the Collateral purported to be created in favor any of the Securities Collateral Agent hereunder or (b) may not under applicable law be perfected by possession, then upon the exercise by the Collateral Agent or filing of appropriate Financing Statements, the Administrative Agent of any rights or remedies in respect of the Collateralwill obtain a valid first lien on, except for (i) filings and other actions necessary to perfect the perfected security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreementin, the Custody AgreementSecurities Collateral and the Proceeds thereof, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating subject to the Collateral Account or any Collateral Account Property;no prior Encumbrance.
(v) the 5.06 The Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Administrative Agent in the Securities Collateral and against the first priority thereof against any Lien, in each case against all competing claims and demands of all persons at any time;other Persons, other than claims or demands related to Encumbrances specifically permitted under the terms of the Loan Agreement.
(vi) 5.07 Except as may be permitted by the Loan Agreement, the Pledgor will not enter into (a) sell or otherwise dispose of, grant any agreement option with respect to, or take mortgage, pledge (except pursuant to this Agreement) or cause to be taken otherwise encumber any action that could impair of the Collateral Agent's rights Securities Collateral, any shares in the Collateral capital stock of any Subsidiary, or any membership or other ownership interest therein, or (b) consent to or approve the issuance of (i) any additional shares of any class of capital stock of any Subsidiary, or the security issuance of any membership or other ownership interest in any Subsidiary; (ii) any securities convertible voluntarily by the holder thereof or automatically upon the occurrence or nonoccurrence of any event or condition into, or exchangeable for, any such shares or interests; or (iii) any warrants, options, rights, or other commitments entitling any person to purchase or otherwise acquire any such shares or interests created hereunder Sections 3.2 except pursuant to an employee stock option plan of such Subsidiary authorizing the grant of no more than 30% of such Subsidiary's shares or interests.
5.08 The Pledgor, at its sole cost and 3.3 above; and
(vii) expense, will execute and deliver all such instruments, and take all such other action as the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating from time to the Collateral Account as the Collateral Agent or Administrative Agent time may reasonably requirerequest, in order to further effectuate the purposes of this Agreement and to carry out the terms hereof.
Appears in 1 contract
Samples: Securities Collateral Pledge Agreement (Barnes & Noble Inc)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and warrants toto Pledgee, and covenants withwith Pledgee, the Collateral Agent as followsthat:
(ia) it (i) Pledgor is the sole entitlement holder (within the meaning of Section 8-102(a)(7) of the UCC) of the Collateral Account record and the Collateral Account Property from time to time credited to the Collateral Account beneficial owner of, and (ii) has not consented legal title to, the Pledged Shares listed on Exhibit A , and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
(ii) it has not granted such shares are and will not grantremain and all other shares of stock constituting Pledged Collateral will be, or permit to existfree and clear of all pledges, any liens, security or interests and other interest in or any right or claim (including any adverse claim) to encumbrances and restrictions whatsoever, except the Collateral except those contemplated liens and security interests created by this Agreement;
(iiib) Pledgor has full power, authority and legal right to execute the pledge provided for herein and to pledge the Pledged Shares and any additional Pledged Collateral to Pledgee, for the benefit of the Pledgee and the Lenders;
(c) this Agreement has been duly authorized, executed and delivered by Pledgor and constitutes a legal, valid and binding obligation of Pledgor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally;
(d) there are no outstanding options, warrants or other agreements with respect to the Pledged Shares other than as set forth in that certain Stockholders Agreement of the Pledgor dated as of the date hereof;
(e) the Pledged Shares have been, and all additional Pledged Collateral constituting capital stock will be, duly and validly authorized and issued, and are or will be fully paid and non-assessable. The Pledged Shares listed on Exhibit A constitute all of the issued and outstanding capital stock of Borrower;
(f) no authorizationconsent, approval or other action by, and no notice to authorization of or designation or filing with, with any governmental authority on the part of Pledgor is required in connection with the pledge and security interest granted under this Agreement, or regulatory body the exercise by Pledgee of the voting and other rights provided for in this Agreement;
(g) the execution, delivery and performance of this Agreement by Pledgor will not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the charter or by-laws of Pledgor or Borrower or of any securities issued by Borrower or of any mortgage, indenture, lease, contract, or other agreement, instrument or undertaking to which Pledgor or Borrower is a party or which purports to be binding upon Pledgor or Borrower or upon any of their respective assets, and will not result in the United States is required for either creation or imposition of any lien, charge or encumbrance on or security interest in any of the assets of Pledgor or Borrower except as contemplated by this Agreement; and
(ah) the grant by the Pledgor pledge, assignment and delivery to Pledgee of the Pledged Shares pursuant to this Agreement creates a valid first lien on and a first perfected security interest in the Collateral purported to be created Pledged Shares and the proceeds thereof in favor of Pledgee, for the Collateral Agent hereunder benefit of Pledgee and the Lenders, subject to no prior pledge, lien, mortgage, hypothecation, security interest, charge, option or (b) the exercise by the Collateral Agent encumbrance or the Administrative Agent of to any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary agreement purporting to perfect the grant to any third party a security interest on in the Collateral granted by property or assets of Pledgor which would include the Pledged Shares. Pledgor covenants and agrees that it will defend Pledgee’s right, title and security interest in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral Pledged Shares and the first priority proceeds thereof against any Lien, in each case against all the claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver to the Collateral Agent and Administrative Agent such documents relating to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requirewhomsoever.
Appears in 1 contract
Samples: Master Reaffirmation Agreement (Panther Expedited Services, Inc.)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor do not violate any provision of any applicable law or regulation or of any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, lease, deed of trust, agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will take not result in the creation or imposition of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement; (vi) all the shares of Stock of Subsidiaries of the Borrower have been duly and all actions necessary or desirable to defend validly issued, are fully paid and nonassessable; (ivii) title each of the Pledged Notes constituting Intercompany Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the Collateral extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (iiviii) the pledge and assignment of the Securities pursuant to this Agreement, together with the delivery of the Securities pursuant to this Agreement (which delivery has been made), creates a valid and perfected first security interest of the Collateral Agent in the Collateral such Securities and the first priority proceeds thereof, subject to no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Securities and the proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Secured Creditors.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. Each Pledgor represents, warrants and covenants to Lenders that:
(a) He is the legal and beneficial owner of the Collateral;
(b) The Pledgor represents Collateral is owned by such Pledgors free and warrants toclear of all security interests, restrictions, charges and other encumbrances of any nature, other than the lien created hereby;
(c) The execution, delivery and performance of this Pledge Agreement do not violate the provisions of or cause a default or constitute an event which, with notice and/or lapse of time, would constitute a default, on the part of Pledgor, under any law or any contract, agreement, other instrument or judgment or decree to which such Pledgors is a party or by which it is bound;
(d) The Collateral is not, to the best of such Pledgor's knowledge, the subject of any present or threatened suit, action, arbitration or administrative or other proceeding, and covenants withPledgors knows of no reasonable grounds for the institution of any such proceeding;
(e) No approvals are required by any governmental or regulatory body, or other third party in connection with the pledge of the Collateral;
(f) Pledgors shall, at their own expense, defend the Lenders' right, title and security interest in and to the Collateral Agent as followsagainst the claims of any person, corporation or other entity;
(g) Such Pledgors shall not:
(i) it (i) is the sole entitlement holder (within the meaning Sell, convey or otherwise dispose of Section 8-102(a)(7) of the UCC) any of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, therein without the prior written consent of Lenders and unless any such purchaser or transferee shall agree in writing for the Shares so transferred to be Collateral Account Property credited hereunder and to be bound by both the Collateral Account;terms of this Agreement; or
(ii) it has not granted and will not grantCreate, incur or permit to exist, exist any security interest, lien, charge or other interest in or encumbrance whatsoever with respect to any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other actions necessary to perfect than the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effectlien created hereby;
(ivh) other than this AgreementThis Agreement constitutes the valid and binding obligation of such Pledgors, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement enforceable in accordance with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any and all actions necessary or desirable to defend (i) title to the Collateral and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against any Lien, in each case against all claims and demands of all persons at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 aboveits terms; and
(viii) In the Pledgor event there is a reclassification or recapitalization of the capital stock of the Borrower or the Borrower shall promptly deliver be a party to a merger or consolidation or sell its assets, and as a result of such event different securities or property shall be issued to the Collateral Agent and Administrative Agent shareholders of the Borrower, such documents relating other securities or property shall be delivered by the Pledgors to the Collateral Account Lenders to be held by the Lenders as part of the Collateral Agent or Administrative Agent may reasonably requirehereunder.
Appears in 1 contract
Samples: Shareholders' Non Recourse Pledge Agreement (Continental Heritage Corp)
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as followsthat:
(i) it (i) Pledgor is a limited liability company duly organized, validly existing and in good standing under the sole entitlement holder (within the meaning of Section 8-102(a)(7) laws of the UCC) State of Kentucky and has the full legal power and authority to own the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account execute, deliver and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;perform this Pledge Agreement.
(ii) it The execution, delivery and performance of this Pledge Agreement has not granted been duly and will not grant, validly authorized by all necessary actions on the part of Pledgor (none of which actions have been modified or permit to exist, any security or other interest in or any right or claim (including any adverse claim) to the Collateral except those contemplated by this Agreement;
(iii) no authorization, approval or other action byrescinded, and no notice to or filing with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor all of the security interest in the Collateral purported to be created in favor of the Collateral Agent hereunder or (b) the exercise by the Collateral Agent or the Administrative Agent of any rights or remedies in respect of the Collateral, except for (i) filings and other which actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;). This Pledge Agreement has been duly executed and delivered by Pledgor and constitutes a legal, valid, and binding obligation of Pledgor, enforceable in accordance with its terms.
(iii) Pledgor is or, with respect to the Collateral described in Section 1 hereof, not later than the time of delivery of certificates therefor will be, the direct record and beneficial owner of each share of the Collateral. Pledgor has and will have good, valid and marketable title thereto, free and clear of all Encumbrances other than the security interest created by this Agreement.
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement with the Custodian not inconsistent with this Agreement, the Pledgor has not entered into The Collateral is and will not enter into any agreement be duly and validly pledged to Security Agent for the benefit of Secured Parties in accordance with any person relating to law, and Security Agent has, for the Collateral Account or any Collateral Account Property;
(v) the Pledgor will take any benefit of Secured Parties, a good, valid, and all actions necessary or desirable to defend (i) title to the Collateral perfected first lien on and (ii) the security interest of the Collateral Agent in the Collateral and the first priority thereof against proceeds thereof.
(v) The execution, delivery and performance by Pledgor of this Pledge Agreement does not and will not: (A) conflict with or violate the Certificate of Incorporation or By-Laws of Pledgor; (B) conflict with or result in a breach of or constitute a default or require any Lienconsent under, or result in each case against all claims and demands or require the acceleration of all persons at any time;of its indebtedness pursuant to, any agreement, indenture or other instrument to which Pledgor is a party or by which Pledgor or any of its properties may be bound or affected; or (C) conflict with or violate any judgment, decree, order, law, statute, ordinance, license or other governmental rule or regulation applicable to Pledgor.
(vi) No approval, consent or other action by Pledgor, any governmental authority, or any other person or entity is or will be necessary to permit the Pledgor will not enter into any agreement valid execution, delivery or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; andperformance of this Pledge Agreement by Pledgor.
(vii) the Pledgor shall promptly deliver There is no action, claim, suit, proceeding or investigation pending, or to the Collateral Agent and Administrative Agent such documents relating knowledge of Pledgor, threatened or reasonably anticipated, against or affecting Pledgor, this Pledge Agreement, or the transactions contemplated hereby, before or by any court, arbitrator or governmental authority which might adversely affect Pledgor's ability to the Collateral Account as the Collateral Agent or Administrative Agent may reasonably requireperform its obligations under this Pledge Agreement.
Appears in 1 contract
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. (a) The Each Pledgor represents and represents, warrants to, and covenants with, the Collateral Agent as follows:
that (i) it (i) is the sole entitlement holder legal, record and beneficial owner of, and has good and marketable title to, all Securities pledged by it hereunder, subject to no pledge, lien, mortgage, hypothecation, security interest, charge, option or other encumbrance whatsoever, except the liens and security interests created by this Agreement and liens permitted under clauses (within the meaning a) and (e) of Section 8-102(a)(7) 8.03 of the UCC) of the Collateral Account and the Collateral Account Property from time to time credited to the Collateral Account and (ii) has not consented to, and is not otherwise aware of, any person (other than the Secured Parties) having Control over, or any other interest in, the Collateral Account Property credited to the Collateral Account;
Credit Agreement; (ii) it has not granted full power, authority and will not grant, or permit legal right to exist, any security or other interest in or any right or claim (including any adverse claim) pledge all the Securities pledged by it pursuant to the Collateral except those contemplated by this Agreement;
; (iii) this Agreement has been duly authorized, executed and delivered by such Pledgor and constitutes a legal, valid and binding obligation of such Pledgor enforceable in accordance with its terms, except to the extent that the enforceability hereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); (iv) no authorizationconsent of any other party (including, without limitation, any stockholder or creditor of such Pledgor or any of its Subsidiaries) and no consent, license, permit, approval or other action authorization of, exemption by, and no notice to or report to, or registration, filing or declaration with, any governmental authority or regulatory body in the United States is required for either (a) the grant by the Pledgor of the security interest in the Collateral purported to be created obtained by such Pledgor in favor connection with the execution, delivery or performance of the Collateral Agent hereunder this Agreement, or (b) in connection with the exercise by the Collateral Agent or the Administrative Agent of any its rights or and remedies in respect of the Collateralpursuant to this Agreement, except for (i) filings and other actions necessary to perfect the security interest on the Collateral granted by the Pledgor in favor of the Collateral Agent as may be required under Section 3.5 above, and (ii) the approvals, consents, exemptions, authorizations, actions, notices and filings which have been duly obtained, taken, given or made and are in full force and effect;
(iv) other than this Agreement, the Custody Agreement, the Credit Agreement and any customary funds transfer, account or other customer agreement connection with the Custodian not inconsistent with this Agreement, disposition of the Pledgor has not entered into Securities by laws affecting the offering and will not enter into any agreement with any person relating to the Collateral Account or any Collateral Account Property;
sale of securities generally; (v) the execution, delivery and performance of this Agreement by such Pledgor does not violate any provision of any applicable law, statute, rule or regulation or of any order, writ, injunction or decree of any court or governmental authority, domestic or foreign, or of the certificate of incorporation or by-laws of such Pledgor or of any securities issued by such Pledgor or any of its Subsidiaries, or of any mortgage, indenture, deed of trust, loan agreement, credit agreement or any other material agreement, instrument or undertaking to which such Pledgor or any of its Subsidiaries is a party or which purports to be binding upon such Pledgor or any of its Subsidiaries or upon any of their respective assets and will take not result in the creation or imposition of any lien or encumbrance on any of the assets of such Pledgor or any of its Subsidiaries except as contemplated by this Agreement; (vi) all the shares of Stock of Subsidiaries of Holdings have been duly and all actions necessary or desirable to defend validly issued, are fully paid and nonassessable; (ivii) title each of the Pledged Notes constituting Intercompany Notes, when executed by the obligor thereof, will be the legal, valid and binding obligation of such obligor, enforceable in accordance with its terms, except to the Collateral extent that the enforceability thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by equitable principles (regardless of whether enforcement is sought in equity or at law); and (iiviii) the pledge and assignment of the Securities pursuant to this Agreement, together with the delivery of the Securities pursuant to this Agreement (which delivery has been made), creates a valid and perfected first security interest of the Collateral Agent in the Collateral such Securities and the first priority proceeds thereof, subject to no prior lien or encumbrance or to any agreement purporting to grant to any third party a lien or encumbrance on the property or assets of such Pledgor which would include the Securities. Each Pledgor covenants and agrees that it will defend the Pledgee's right, title and security interest in and to the Securities and the proceeds thereof against any Lien, in each case against all the claims and demands of all persons whomsoever; and such Pledgor covenants and agrees that it will have like title to and right to pledge any other property at any time;
(vi) the Pledgor will not enter into any agreement or take or cause to be taken any action that could impair the Collateral Agent's rights in the Collateral or the security interests created hereunder Sections 3.2 and 3.3 above; and
(vii) the Pledgor shall promptly deliver time hereafter pledged to the Pledgee as Collateral Agent hereunder and Administrative Agent such documents relating to will likewise defend the Collateral Account as right thereto and security interest therein of the Collateral Agent or Administrative Agent may reasonably requirePledgee and the other Secured Creditors.
Appears in 1 contract
