Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder: (i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents; provided, that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Document or the ability of the Secured Parties to exercise the same. (ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above. (iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). (b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account. (c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default under any Finance Document shall have occurred and be continuing and the Collateral Agent shall have given the Grantors notice to the relevant Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunder:under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of a Bankruptcy Default):
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Agreement and the other Indenture Finance Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, Securities or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Agreement or any other Indenture Finance Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such Pledgoreach Grantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Credit Agreement, the Indenture, the other Indenture Finance Documents and applicable lawslaw; provided, however, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Collateral Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in with any necessary endorsement or instrument of assignment). This paragraph (iii) shall not apply to dividends between or among the Company and the Subsidiary Grantors only of property subject to a manner reasonably satisfactory to perfected security interest under this Agreement; provided that the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, Company notifies the Collateral Agent))Agent in writing, specifically referring to this Section 2.06 at the time of such dividend and takes any actions the Collateral Agent reasonably specifies to ensure the continuance of its perfected security interest in such property under this Agreement.
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and under any Finance Document, after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount notified (or shall be deemed to have notified) the Grantors of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance suspension of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual their rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.under
Appears in 1 contract
Samples: Security Agreement (Alion Science & Technology Corp)
Voting Rights; Dividends and Interest, etc. (a1) Unless and until an Event of Default shall have has occurred and be is continuing and the Collateral Agent shall have has given at least one (1) Business Day’s prior written notice to the relevant Pledgors Borrower of the Collateral Agent’s intention to exercise its rights hereunder:
(ia) Each Pledgor shall each Grantor will be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; provided, that, provided that except as permitted under the IndentureCredit Agreement, such rights and powers shall will not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.;
(iib) The the Collateral Agent shall will promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (ia) above.; and
(iiic) Each Pledgor shall each Grantor will be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, provided that (Ai) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (Bii) any non-cash noncash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall will be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall will be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b2) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after at least one (1) Business Day’s prior written notice by the Collateral Administrative Agent to the Issuers Borrower of the Collateral Administrative Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii1)(c) of this Section 3.05 shall will cease, and all such rights shall will thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Collateral Agent (oror a designated bailee, if in accordance with the First-Lien Termination Date has occurredIntercreditor Agreement), the Collateral Agent) which shall will have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence and during the continuance of an Event of Default, and such one at least one (1) Business Day’s prior written notice, any Pledgor Grantor may continue to exercise dividend receive dividends and distribution rights distributions solely to the extent permitted under subclause (xii6)(a), subclause (6)(c) and subclause (xiii)(A6)(e) of Sections 4A.04(b) and 4B.04(b) Section 6.06 of the Indenture. Credit Agreement.
(3) All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall will be forthwith delivered to the Intercreditor Collateral Agent (oror a designated bailee, if in accordance with the First-Lien Termination Date has occurred, the Collateral AgentIntercreditor Agreement), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (oror a designated bailee, if in accordance with the First-Lien Termination Date has occurred, the Collateral AgentIntercreditor Agreement) pursuant to the provisions of this paragraph (b3) shall subject to the Intercreditor Agreement will be retained by the Intercreditor Collateral Agent (oror a designated bailee, if in accordance with the First-Lien Termination Date has occurred, the Collateral AgentIntercreditor Agreement) in an account to be established by the Intercreditor Collateral Agent (oror a designated bailee, if in accordance with the First-Lien Termination Date has occurred, the Collateral AgentIntercreditor Agreement) upon receipt of such money or other property and shall will be applied in accordance with the provisions of Section 5.02 hereof. After all such Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurredwaived, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall will promptly release repay to each Pledgor Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii1)(c) of this Section 3.05 and that remain in such account.
(c4) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent shall have given at least one (1) Business Day’s prior written notice to the Issuers Borrower of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i1)(a) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii1)(b) of this Section 3.05, shall will cease, and all such rights shall will thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall will have the sole and exclusive right and authority to exercise such voting and consensual rights and powerspowers (subject to the Intercreditor Agreement); provided that, to that unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesRequired Lenders, the Collateral Agent shall will have the right from time to time following and during the continuance of an Event of Default and such at least one (1) Business Day’s prior written notice to permit the Pledgors Grantors to exercise such rights. After all such Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effectwaived, each Pledgor shall Grantor will have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i1)(a) above.
Appears in 1 contract
Samples: Abl Guarantee and Collateral Agreement (Neiman Marcus Group LTD LLC)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors Grantors of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents; provided, that, except as expressly permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities Securities, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)), subject to the terms of the Intercreditor Agreements.
(b) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor AgreementAgreements, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Company of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to receive dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Collateral Agent which, subject to the terms of the Intercreditor Agent (orAgreements, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and and, subject to the Intercreditor Agreements, shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 6.02 hereof. After all Events of Default have been cured or waived and the Issuers have Company has delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such accountaccount established pursuant to this Section 3.05(b).
(c) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor AgreementAgreements, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Company of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, subject to the extent consistent with, the terms of the Intercreditor Agreement Agreements and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesSecurities then outstanding, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Grantors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have Company has delivered to the Collateral Agent a certificate to that effect, each Pledgor Grantor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder:hereunder (to the extent permitted by the Intercreditor Agreements):
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Noteholder Documents; provided, provided that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Indenture Secured Parties under this Agreement, the Indenture or any other Indenture Noteholder Document or the ability of the Indenture Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Noteholder Documents and applicable laws; provided, provided that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but but, subject to the Intercreditor Agreements, shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent Collateral Agent, for the ratable benefit of the Indenture Secured Parties, and shall be forthwith delivered to the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Indenture Secured Parties, in the same form as so received (duly endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)by such Pledgor).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Samples: Senior Secured First Lien Notes Indenture (Claires Stores Inc)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given the Grantors notice to the relevant Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunder:under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under Article VII of the Credit Agreement):
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; provided, that, except as permitted under the Indenture, provided that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, Securities or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, Agreement or the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, provided that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, Parties and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory with any necessary endorsement or instrument of assignment). This paragraph (iii) shall not apply to dividends by or among the Intercreditor Agent (or, if the First-Lien Termination Date has occurredBorrower, the Guarantors and any Subsidiaries only of property subject to a perfected security interest under this Agreement; provided that the Borrower notifies the Collateral Agent))Agent in writing, specifically referring to this Section 3.06 at the time of such dividend and takes any actions the Collateral Agent reasonably specifies to ensure the continuance of its perfected security interest in such property under this Agreement.
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention its intent to exercise its rights hereunderunder paragraph (a)(iii) of this Section 3.06, then all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 3.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 3.06 shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit shall be segregated from other property or funds of the Secured Parties, such Grantor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement or instrument of assignment). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof5.02. After all Events of Default have been cured or waived and the Issuers applicable Grantor or Grantors have delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate certificates to that effect, the Intercreditor Collateral Agent (orshall, if the First-Lien Termination Date has occurredpromptly after all such Events of Default have been cured or waived, the Collateral Agent) shall promptly release repay to each Pledgor applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 3.06 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention its intent to exercise its rights hereunderunder paragraph (a)(i) of this Section 3.06, then all rights of any Pledgor Grantor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.053.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.053.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesRequired Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Grantors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to .
(d) Any notice given by the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms Grantors exercising its rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) aboveor paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion (unless the Required Lenders direct otherwise)) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Buffets Holdings, Inc.)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereundercontinuing:
(i) Each Pledgor shall be entitled have the right to exercise any and all voting and/or other consensual rights and powers inuring enuring to an owner of Pledged Collateral Securities or any part thereof for any -4- purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; providedPROVIDED, thatHOWEVER, except as permitted under the Indenture, that such rights and powers shall Pledgor will not be exercised in entitled to exercise any manner that such right if the result thereof could reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.;
(ii) The Each Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such each Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.above and to receive the cash dividends it is entitled to receive pursuant to subparagraph (iii) below; and
(iii) Each Subject to the next sentence, each Pledgor shall be entitled to receive and retain any and all cash dividends, interest, principal and other distributions amounts paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such cash dividends, interest, principal and other distributions amounts are permitted by or not prohibited by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, that (A) any . All noncash dividends, interest, principal and other amounts, and all dividends, interest, principal and other amounts paid or payable in cash or otherwise in connection with a partial or total liquidation or dissolution, return of capital, capital surplus or paid-in surplus, and all other distributions, payments distributions (other than distributions referred to in the preceding sentence) made on or other consideration in respect thereof, including any rights to receive of the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether paid or payable in cash or otherwise, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests capital stock of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Securities Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunderDefault, all rights of any Pledgor to dividends, interest, principal or other distributions amounts that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 above shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indentureamounts. All dividends, interest, principal or other distributions amounts received by any the Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 5 shall be held in trust for the benefit of the Intercreditor Agent (orCollateral Agents, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit shall be segregated from other property or funds of the Secured Parties, such Pledgor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon written demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, in the Collateral Agent) in an account Account established pursuant to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property Security Agreement and shall be applied in accordance with the provisions of Section 5.02 hereof7. After Within five (5) Business Days after all such Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurredwaived, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all cash dividends, interest, interest or principal or other distributions (including interest earned thereon) that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 above and that which remain in such account; PROVIDED, HOWEVER, the Collateral Agent shall be under no obligation with respect to the investment of such cash dividends, interest or principal, including, for the avoidance of doubt, any requirement to invest such cash dividends, interest or principal in any class of investment, interest-bearing or otherwise.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunderDefault, all rights of any Pledgor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.055, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.055, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effectwaived, each such Pledgor shall will have the right to exercise the voting and/or and consensual rights and powers that such Pledgor it would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Samples: Pledge Agreement (Polymer Group Inc)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents; provided, provided that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above; provided that any failure of the Collateral Agent to so deliver any such instrument shall not in any way impair or affect the Collateral Agent’s rights and remedies hereunder.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Documents and applicable laws; provided, provided that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Collateral Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, Parties and shall be forthwith delivered to the Intercreditor First Lien Agent (or, or if the First-First Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor First Lien Agent (or, if the First-First Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and following the First Lien Termination Date and after notice by the Collateral Agent to the Issuers relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of DefaultDefault (other than an Event of Default under Sections
6.01 (e) or (f) of the Indenture), any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Collateral Agent (oror the First Lien Agent, if the First-Lien Termination Date has occurred, the Collateral Agentas applicable), for the ratable benefit of the Secured Parties, and and, following the First Lien Termination Date, shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Collateral Agent (oror the First Lien Agent, if the First-Lien Termination Date has occurred, the Collateral Agentas applicable)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 6.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after the First Lien Termination Date and after notice by the Collateral Agent to the Issuers relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from requisite Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
(d) Notwithstanding anything to the contrary contained in this Section 3.05, if an Event of Default of the type referred to in Sections 6.01(e) or (f) of the Indenture shall have occurred and be continuing, the Collateral Agent shall not be required to give any notice referred to in this Section 3.05 in order to exercise any of its rights described in said Sections, and the suspension of the rights of each of the Pledgors under said Sections shall be automatic upon the occurrence of such Event of Default.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a1) Unless and until an Event of Default shall have has occurred and be is continuing and the Collateral Agent shall have has given at least one (1) Business Day’s prior written notice to the relevant Pledgors Issuer of the Collateral Agent’s intention to exercise its rights hereunder:
(ia) Each Pledgor shall each Grantor will be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Indentures and the other Indenture Notes Documents; provided, provided that, except as permitted under the Indentureboth Indentures, such rights and powers shall will not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Indentures or any other Indenture Document Notes Documents or the ability of the Secured Parties to exercise the same.;
(iib) The the Collateral Agent shall will promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (ia) above.; and
(iiic) Each Pledgor shall each Grantor will be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureIndentures, the other Indenture Notes Documents and applicable laws; provided, provided that (Ai) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (Bii) any non-cash noncash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall will be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall will be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b2) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after at least one (1) Business Day’s prior written notice by the Collateral Agent to the Issuers Issuer of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii1)(c) of this Section 3.05 shall will cease, and all such rights shall will thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall will have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence and during the continuance of an Event of DefaultDefault and such one (1) Business Day’s prior written notice, any Pledgor Grantor may continue to exercise dividend receive dividends and distribution rights distributions solely to the extent permitted under subclause (xiib)(vi)(A), subclause (b)(vi)(C) and subclause (xiii)(Ab)(vi)(E) of Sections 4A.04(bSection 3.4 of each Indenture.
(3) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall will be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall 3), subject to the Intercreditor Agreements, will be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall will be applied in accordance with the provisions of Section 5.02 hereof. After all such Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurredwaived, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall will promptly release repay to each Pledgor Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii1)(c) of this Section 3.05 and that remain in such account.
(c4) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent shall have given at least one (1) Business Day’s prior written notice to the Issuers Issuer of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i1)(a) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii1)(b) of this Section 3.05, shall will cease, and all such rights shall will thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall will have the sole and exclusive right and authority to exercise such voting and consensual rights and powerspowers (subject to the Intercreditor Agreements); provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless that the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall will have the right from time to time following and during the continuance of an Event of Default and such at least one (1) Business Day’s prior written notice to permit the Pledgors Grantors to exercise such rights. After all such Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effectwaived, each Pledgor shall Grantor will have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i1)(a) above.
Appears in 1 contract
Samples: Third Lien Notes Collateral Agreement (Neiman Marcus Group LTD LLC)
Voting Rights; Dividends and Interest, etc. (a) Unless Subject to the ABL Intercreditor Agreement, unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given written notice to the relevant Pledgors Holdings of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor Holdings shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with not prohibited by the terms of this Agreement, the Indenture Asset-Based Revolving Credit Agreement and the other Indenture Loan Documents; provided, that, except as permitted under the IndentureLoan Documents, such rights and powers shall not be exercised in any manner that could be reasonably likely to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Asset-Based Revolving Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorHoldings, or cause to be executed and delivered to such PledgorHoldings, all such proxies, powers of attorney and other instruments as such Pledgor Holdings may reasonably request for the purpose of enabling such Pledgor Holdings to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Holdings shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted not prohibited by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureAsset-Based Revolving Credit Agreement, the any other Indenture Loan Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Borrower or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer the Borrower may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by Holdings, shall be promptly (and in any Pledgorevent within 45 days of their receipt or such longer time as the Applicable Collateral Agent shall permit in its reasonable discretion) delivered to the Applicable Collateral Agent (acting as gratuitous bailee / agent for perfection purposes, pursuant to Section 2.12 of the ABL Intercreditor Agreement, if the Applicable Collateral Agent is not the Collateral Agent), for the benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Applicable Collateral Agent).
(b) Subject to the ABL Intercreditor Agreement, after the occurrence and during the continuance of an Event of Default and upon written notice by the Collateral Agent to Holdings of the Collateral Agent’s intention to exercise its rights hereunder, all rights of Holdings to receive dividends, interest, principal or other distributions that Holdings is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall thereupon become vested, for the benefit of the Secured Parties, in the Collateral Agent, which, subject to the ABL Intercreditor Agreement, shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, that the Collateral Agent, to the extent not objected to by the Required Lenders, shall have the right from time to time following and during the continuance of an Event of Default to permit Holdings to receive and retain such amounts; provided, further, that notwithstanding the occurrence of an Event of Default, Holdings may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (i), subclause (iii) and subclause (v) of Section 6.06(b) of the Asset-Based Revolving Credit Agreement. All dividends, interest, principal or other distributions received by Holdings contrary to the provisions of this Section 3.06 shall not be commingled by such Pledgor Holdings with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.)
Appears in 1 contract
Samples: Holdings Guarantee and Pledge Agreement (Abl) (DS Services of America, Inc.)
Voting Rights; Dividends and Interest, etc. (a) Unless Subject to the First Lien/Second Lien Intercreditor Agreement and the Second Lien/Second Lien Intercreditor Agreement (if entered into), unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given written notice to the relevant Pledgors Holdings of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor Holdings shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with not prohibited by the terms of this Agreement, the Notes Indenture and the other Notes Indenture Documents; provided, that, except as permitted under the IndentureNotes Indenture Documents, such rights and powers shall not be exercised in any manner that could be reasonably likely to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Second-Priority Secured Parties under this Agreement, the Notes Indenture or any other Notes Indenture Document or the ability of the Second-Priority Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorHoldings, or cause to be executed and delivered to such PledgorHoldings, all such proxies, powers of attorney and other instruments as such Pledgor Holdings may reasonably request for the purpose of enabling such Pledgor Holdings to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Holdings shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted not prohibited by, and otherwise paid or distributed in accordance with, the terms and conditions of the Notes Indenture, the any other Notes Indenture Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Issuer or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer the Issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by Holdings, shall be promptly (and in any Pledgorevent within 45 days of their receipt or such longer time as the First-Priority Collateral Agent shall permit in its reasonable discretion pursuant to the Collateral Agreement (First Lien); provided, after the Discharge of First Priority Obligations, promptly shall mean within 45 days for purposes of this Section 2.06(a)(iii)) delivered to the Applicable Collateral Agent (acting as gratuitous bailee / agent for perfection purposes, pursuant to Section 5.5 or 5.6 of the First Lien/Second Lien Intercreditor Agreement, as applicable, if the Applicable Collateral Agent is not the Collateral Agent), for the benefit of the Second-Priority Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Applicable Collateral Agent).
(b) Subject to the First Lien/Second Lien Intercreditor Agreement and the Second Lien/Second Lien Intercreditor Agreement (if entered into), after the occurrence and during the continuance of an Event of Default and upon written notice by the Collateral Agent to Holdings of the Collateral Agent’s intention to exercise its rights hereunder, all rights of Holdings to receive dividends, interest, principal or other distributions that Holdings is authorized to receive pursuant to paragraph (a)(iii) of this Section 2.06 shall cease, and all such rights shall thereupon become vested, for the benefit of the Second-Priority Secured Parties, in the Collateral Agent, which, subject to the First Lien/Second Lien Intercreditor Agreement and the Second Lien/Second Lien Intercreditor Agreement (if entered into), shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, that the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit Holdings to receive and retain such amounts; provided, further, that notwithstanding the occurrence of an Event of Default, Holdings may continue to exercise dividend and distribution rights solely to the extent permitted under subclauses (b)(xii) and (b)(xiii)(A) of Section 4.04 of the Notes Indenture. All dividends, interest, principal or other distributions received by Holdings contrary to the provisions of this Section 2.06 shall not be commingled by such Pledgor Holdings with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Second-Priority Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Second-Priority Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account continue to be established by held as collateral security for the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property Secured Obligations and shall be not constitute payment thereof until applied in accordance with the provisions of Section 5.02 hereof4.02. After all Events of Default have been cured or waived and the Issuers have Issuer has delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor Holdings (without interest) all dividends, interest, principal or other distributions that such Pledgor Holdings would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 2.06 and that remain in such account.
(c) In accordance with, and Subject to the extent consistent with, First Lien/Second Lien Intercreditor Agreement and the terms of the Second Lien/Second Lien Intercreditor AgreementAgreement (if entered into), upon the occurrence and during the continuance of an Event of Default and after written notice by the Collateral Agent to the Issuers Holdings of the Collateral Agent’s intention to exercise its rights hereunder, subject to applicable Requirements of Law, all rights of any Pledgor Holdings to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.052.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Second-Priority Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided provided, that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Holdings to exercise such rights; provided, further, that the Collateral Agent shall have no duty to Holdings to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in doing so. After all Events of Default have been cured or waived and the Issuers have Issuer has delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right all rights of Holdings to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 2.06 shall be reinstated.
(d) In order to permit the Collateral Agent to exercise the voting and other consensual rights that such Pledgor would otherwise it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions that it may be entitled to receive hereunder, (i) Holdings shall promptly execute and deliver (or cause to be executed and delivered) to the terms Collateral Agent all such proxies, dividend payment orders and other instruments as the Collateral Agent may from time to time reasonably request (it being understood that after the Discharge of First-Priority Obligations, the Applicable Collateral Agent shall be under no obligation to make such requests and the applicable Pledgor shall take such necessary actions to satisfy this subclause (i) of Section 2.06(d) without such requests being made by the Applicable Collateral Agent) and (ii) without limiting the effect of clause (i) above, Holdings hereby grants to the Collateral Agent an irrevocable proxy, coupled with an interest, to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the discharge of the Secured Obligations.
(e) Any notice given by the Collateral Agent to Holdings suspending its rights under paragraph (a) of this Section 2.06 (i) shall be in writing and (ii) may suspend the rights of Holdings under paragraph (a)(i) aboveor paragraph (a)(iii) of this Section 2.06 in part without suspending all such rights (to the extent that the First-Priority Collateral Agent exercises its sole and absolute discretion pursuant to the Collateral Agreement (First Lien) (it being understood that after the Discharge of First-Priority Obligations, the Applicable Collateral Agent shall be under no obligation to exercise such discretion)) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Holdings Pledge Agreement (Second Lien) (DS Services of America, Inc.)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent Agent, acting at the written direction of the Applicable Authorized Representative, shall have given the Grantors notice to the relevant Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunder:under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under paragraph (g) or (h) of Article VII of the Credit Agreement or an equivalent default section of any other Loan Document (it being understood that the Applicable Authorized Representative shall provide the Collateral Agent with notice of such an Event of Default)):
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Agreement and the other Indenture Loan Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall not be exercised in any manner that could would materially and adversely affect the rights inuring to a holder of any Pledged Collateral, Securities or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, Agreement and the Indenture or any other Indenture Document Loan Documents or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent Agent, acting at the written direction of the Applicable Authorized Representative, shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such Pledgoreach Grantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph paragraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities, to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and are otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable lawslaw; provided, however, that (A) any noncash non-cash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, Parties and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed with any necessary endorsement or instrument of assignment). Notwithstanding the foregoing, this paragraph (iii) shall not apply to dividends between or among the Loan Parties and any Domestic Subsidiaries consisting only of property subject to a perfected security interest under this Agreement; provided, however, that the Loan Parties’ Agent, on behalf of the applicable Loan Parties, notifies the Collateral Agent and the Applicable Authorized Representative in a manner writing, specifically referring to this Section 2.06 at the time of such dividend and take any actions required by law or reasonably satisfactory to requested by the Intercreditor Collateral Agent (or, if acting at the First-Lien Termination Date has occurred, written direction of the Collateral Agent))Applicable Authorized Representative) to ensure the continuance of its perfected security interest in such property under this Agreement.
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by of which the Collateral Agent has received written notice from the Applicable Authorized Representative, after the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 2.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(iii) of this Section 2.06, then all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 2.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 2.06 shall be held in trust for the benefit of the Intercreditor Collateral Agent (or, if and the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the other Secured Parties, shall be segregated from other property or funds of such Grantor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement or instrument of assignment). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof4.02. After all Events of Default have been cured or waived and the Issuers have each applicable Grantor has delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) Applicable Authorized Representative a certificate of a Responsible Officer to that effect, the Intercreditor Collateral Agent (orshall promptly, if after receiving written notice from the First-Lien Termination Date has occurredApplicable Authorized Representative that all such Events of Default have been cured or waived, the Collateral Agent) shall promptly release return to each Pledgor applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that 2.06 to the extent any amounts remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by of which the Collateral Agent has received written notice from the Applicable Authorized Representative, after the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 2.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(i) of this Section 2.06, all rights of any Pledgor Grantor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.052.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.052.06, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless that the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to Default, at the written direction of the Applicable Authorized Representative, permit the Pledgors Grantors to exercise such rights. After ; provided further that after all Events of Default have been cured or waived waived, and the Issuers have delivered to the Collateral Agent shall have received from the Applicable Authorized Representative a certificate of a Responsible Officer of the Loan Parties’ Agent to that effect, each Pledgor Grantor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) aboveof this Section 2.06.
(d) Any notice given by the Collateral Agent to the Grantors exercising its rights under paragraphs (b) and (c) of this Section 2.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent acting at the written direction of the Applicable Authorized Representative) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors Grantors of the Collateral Agent’s intention to exercise its rights hereunderhereunder or under the Indenture, as applicable:
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Note Documents; provided, provided that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Note Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall shall, at such Grantor’s sole expense and upon receipt of a written request, promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Note Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged SecuritiesSecurities to the extent such Grantor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities to the extent such Grantor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
. This clause (biii) In accordance with, and shall not apply to dividends between or among the extent consistent withCompany, the terms Grantors and the Subsidiaries consisting only of property which is subject to a perfected security interest under this Agreement; provided that the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by Company notifies the Collateral Agent in writing, specifically referring to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, at the time of such dividend and the obligations of takes any actions the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority specifies to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during ensure the continuance of an Event of Default to permit the Pledgors to exercise its perfected security interest in such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) aboveproperty under this Agreement.
Appears in 1 contract
Samples: Collateral Agreement (Anywhere Real Estate Group LLC)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents; provided, that, except as expressly permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities, to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor First Lien Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Issuer of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have Issuer has delivered to the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor First Lien Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such accountaccount established pursuant to this Section 3.05(b).
(c) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Issuer of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, subject to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesNotes then outstanding, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have Issuer has delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Applicable Agent shall have given notice to the relevant Pledgors of the Collateral Applicable Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents, the Credit Agreement Documents and any Other First Lien Agreement; provided, provided that, except as permitted under the Indenture, the Credit Agreement and any Other First Lien Agreement, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the other Indenture Documents, the Credit Agreement Documents or any other Indenture Document Other First Lien Agreement or the ability of the Secured Parties to exercise the same. For the avoidance of doubt, nothing in this subparagraph (i) shall be read to suggest that a Pledgor holding ULC Interests does not have all of the rights described in Section 2.06.
(ii) The Where any Pledged Collateral is registered in the name of the Applicable Agent, the Applicable Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureIndenture Documents, the other Indenture Documents Credit Agreement Documents, any Other First Lien Agreement and applicable laws; provided, provided that (A) any noncash non-cash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged SecuritiesSecurities to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Applicable Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Applicable Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Applicable Agent)). For the avoidance of doubt, nothing in this subparagraph (iii) shall be read to suggest that a Pledgor holding ULC Interests does not have all of the rights described in Section 2.06.
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Applicable Agent to the Issuers relevant Pledgors of the Collateral Applicable Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to receive dividends, interest, principal or other distributions with respect to Pledged Securities that are not ULC Interests that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 2.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (orApplicable Agent, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 2.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Applicable Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Applicable Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Applicable Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof4.02. After all Events of Default have been cured or waived and an Officer of the Issuers have Issuer has delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph paragraph
(a)(iiia) (iii) of this Section 3.05 2.05 and that remain in such account. Nothing in this paragraph (b) shall limit any of the rights of any Pledgor holding Pledged Securities which are ULC Interests to receive dividends, interest, principal or other distributions, and no such dividends, interest, principal or other distributions shall become vested or held in trust for or on behalf of the Applicable Agent.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Applicable Agent to the Issuers relevant Pledgors of the Collateral Applicable Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.052.05 with respect to Pledged Securities that are not ULC Interests, and the obligations of the Collateral Applicable Agent under paragraph (a)(ii) of this Section 3.052.05, shall cease, and all such rights shall thereupon become vested in the Collateral Applicable Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to that the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Applicable Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and an Officer of the Issuers have Issuer has delivered to the Collateral Applicable Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) aboveabove and the obligations of the Applicable Agent under paragraph (a)(ii) shall be in effect. Nothing in this paragraph (c) shall limit voting and/or other consensual rights and powers of any Pledgor holding Pledged Securities which are ULC Interests, and no such rights shall become vested in the Applicable Agent pursuant hereto.
Appears in 1 contract
Samples: Collateral Agreement (Momentive Performance Materials Inc.)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereundercontinuing:
(i) Each Pledgor shall be entitled have the right to exercise any and all voting and/or all other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with not prohibited by the terms of this Agreement, the Indenture and the other Indenture Loan Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall Pledgor will not be exercised in entitled to exercise any manner that such right if the result thereof could reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.;
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such each Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.above and to receive the dividends it is entitled to receive pursuant to subparagraph (iii) below; and
(iii) Each Subject to Section 3, prior to the occurrence of an Event of Default and notice from the Collateral Agent to the Pledgors of its intent to exercise its rights under this Section, each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions amounts paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such cash dividends, interest, principal and other distributions amounts are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, however, that (A) any noncash certificates or instruments evidencing any and all dividends, interest, principal and other amounts paid on the Pledged Securities consisting of rights or other distributions, payments or other consideration interests in respect thereof, including any rights to receive the same form of securities shall be forthwith delivered to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Collateral Agent to hold as Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, andshall, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for be segregated from the ratable benefit other property or funds of the Secured Parties, such Pledgor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, as Pledged Securities in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsements).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after following notice by from the Collateral Agent to the Issuers Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunderunder this Section, all rights of any Pledgor to dividends, interest, principal or other distributions amounts that such Pledgor is authorized to receive and retain pursuant to paragraph (a)(iii) of this Section 3.05 above shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indentureamounts. All dividends, interest, principal or other distributions amounts received by any the Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 7 shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit shall be segregated from other property or funds of the Secured Parties, such Pledgor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, in the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property Account and shall be applied in accordance with the provisions of Section 5.02 hereof9. After Within five (5) Business Days after all such Events of Default have been cured cured, remedied or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurredwaived, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all cash dividends, interestinterest or principal (including interest earned thereon, principal or other distributions if any) that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 above and that which remain in such account; provided, however, that the Collateral Agent shall be under no obligation with respect to the investment of such cash dividends, interest or principal, including, for the avoidance of doubt, any requirement to invest such cash dividends, interest or principal in any class of investment, interest-bearing or otherwise.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after following notice by from the Collateral Agent to the Issuers Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunderunder this Section, all rights of any Pledgor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.057, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.057, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured cured, remedied or waived and the Issuers have delivered to the Collateral Agent a certificate to that effectwaived, each such Pledgor shall will have the right to exercise the voting and/or and consensual rights and powers that such Pledgor it would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Administrative Agent shall have given the Grantors notice (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under clause (i) or (ii) of Section 8(f) of the Term Loan Credit Agreement with respect to the relevant Pledgors of the Collateral Agent’s intention to exercise its applicable Grantor) that their rights hereunderunder this Section 3.06 are being suspended:
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Term Loan Credit Agreement and the other Indenture Loan Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall not be exercised in any manner that could would reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, Securities or the rights and remedies of any of the Collateral Administrative Agent or the other Secured Parties under this Agreement, Agreement or the Indenture Term Loan Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Administrative Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such Pledgoreach Grantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureTerm Loan Credit Agreement, the other Indenture Loan Documents and applicable lawslaw; provided, however, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured PartiesParties and, and subject to the last sentence of Section 3.02, shall be forthwith delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory with any necessary endorsement or instrument of assignment). This paragraph (iii) shall not apply to dividends between or among the Intercreditor Agent (or, if the First-Lien Termination Date has occurredBorrowers, the Collateral Agent))Guarantors and any Subsidiaries of a Borrower only of property subject to a perfected security interest under this Agreement; provided that the Borrowers’ Agent notifies the Administrative Agent in writing, specifically referring to this Section 3.06 at the time of such dividend and takes any actions the Administrative Agent specifies to ensure the continuance of its perfected security interest in such property under this Agreement.
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent subject to the Issuers terms of the Collateral Agent’s intention Intercreditor Agreement, after the Administrative Agent shall have notified (or shall be deemed to exercise its have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights hereunderunder paragraph (a)(iii) of this Section 3.06, all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 3.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (orAdministrative Agent, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 3.06 shall be held in trust for the benefit of the Intercreditor Agent (orAdministrative Agent, if shall be segregated from other property or funds of such Grantor and shall, subject to the First-Lien Termination Date has occurredlast sentence of Section 3.02, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory with any necessary endorsement or instrument of assignment). Subject to the terms of the Intercreditor Agent (orAgreement, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any any and all money and other property paid over to or received by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof5.02. After all Events of Default have been cured or waived and the Issuers have Borrowers’ Agent has delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate certificates to that effect, the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 3.06 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent subject to the Issuers terms of the Collateral Agent’s intention Intercreditor Agreement, after the Administrative Agent shall have notified (or shall be deemed to exercise its have notified pursuant to Section 3.06(a)) the Grantors of the suspension of their rights hereunderunder paragraph (a)(i) of this Section 3.06, then all rights of any Pledgor Grantor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.053.06, and the obligations of the Collateral Administrative Agent under paragraph (a)(ii) of this Section 3.053.06, shall cease, and all such rights shall thereupon become vested in the Collateral Administrative Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent withMajority Lenders, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Administrative Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Grantors to exercise such rights. .
(d) Any notice given by the Administrative Agent to the Grantors suspending their rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such rights (as specified by the Administrative Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Administrative Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
(e) After all Events of Default have been cured or and waived and the Issuers have Borrowers’ Agent has delivered to the Collateral Administrative Agent a certificate to stating that effectno Event of Default has occurred and is continuing, each Pledgor Grantor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph subparagraph (a)(i) aboveabove and the obligations of the Administrative Agent under subparagraph (a)(ii) shall be in effect.
Appears in 1 contract
Samples: Term Loan Credit Agreement (SunCoke Energy Partners, L.P.)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Administrative Agent shall have given notice to the relevant Pledgors of the Collateral Administrative Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; provided, that, except as expressly permitted under the IndentureCredit Agreement, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Administrative Agent or the other Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Administrative Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Administrative Agent, for the ratable benefit of the Secured Parties, and and, subject to the Intercreditor Agreement shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Administrative Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Administrative Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Administrative Agent to the Issuers Borrower of the Collateral Administrative Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Administrative Agent which, subject to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which Agreement shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Administrative Agent), for the ratable benefit of the Secured Parties, and and, subject to the Intercreditor Agreement, shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Administrative Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Administrative Agent)). Any and all money and other property paid over to or received by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have Borrower has delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Administrative Agent to the Issuers Borrower of the Collateral Administrative Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Administrative Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Administrative Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent withRequired Lenders, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Administrative Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have Borrower has delivered to the Collateral Administrative Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Samples: Second Lien Guarantee and Collateral Agreement (Covalence Specialty Adhesives LLC)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given the Grantors notice to the relevant Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunder:under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under paragraph (g) or (h) of Article VII of the Credit Agreement):
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall not be exercised in any manner that could reasonably be expected to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, Securities or the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such Pledgoreach Grantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph paragraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Documents Loan Documents, and applicable lawslaw; provided, however, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, Parties and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if prior to the First-Lien Termination Date has occurredDischarge of Term Loan/Notes Obligations and with respect to the Term Loan/Notes Priority Collateral, to the Term Loan Collateral Agent), for the ratable benefit of the Secured Parties, as gratuitous bailee) in the same form as so received (endorsed in a manner reasonably satisfactory with any necessary endorsement or instrument of assignment). This paragraph (iii) shall not apply to dividends between or among the Intercreditor Agent (or, if the First-Lien Termination Date has occurredBorrower, the Collateral Agent))Guarantors and any Subsidiaries only of property subject to a perfected security interest under this Agreement.
(b) In accordance with, and to To the fullest extent consistent with, the terms of the Intercreditor Agreementpermitted by applicable law, upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(iii) of this Section 3.06, then all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 3.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 3.06 shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit shall be segregated from other property or funds of the Secured Parties, such Grantor and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement or instrument of assignment). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof5.02. After all Events of Default have been cured or waived and the Issuers have each applicable Grantor has delivered to the Intercreditor Administrative Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate certificates to that effect, the Intercreditor Collateral Agent (orshall, if the First-Lien Termination Date has occurredpromptly after all such Events of Default have been cured or waived, the Collateral Agent) shall promptly release repay to each Pledgor applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 3.06 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(i) of this Section 3.06, then all rights of any Pledgor Grantor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.053.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.053.06, shall cease, and and, subject to compliance with any applicable healthcare laws, all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesRequired Lenders, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Grantors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have each applicable Grantor has delivered to the Collateral Administrative Agent a certificate to that effect, each Pledgor shall have the right to exercise the such voting and/or and consensual rights shall automatically vest in the applicable Grantor, and powers the Collateral Agent shall (1) take such steps reasonably requested by the applicable Grantor, at such Grantor’s expense, to allow all Pledged Securities registered under its name to be registered under the name of the applicable Grantor and (2) promptly repay to each applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be entitled have been permitted to exercise retain pursuant to the terms of paragraph (a) of this Section 3.06 that were not applied to repay the Obligations.
(d) Any notice given by the Collateral Agent to the Grantors exercising its rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) aboveor paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Community Health Systems Inc)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors Grantors of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Documents; provided, that, except as expressly permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities Securities, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received received
(iv) by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)), subject to the terms of the Intercreditor Agreements.
(b) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor AgreementAgreements, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Company of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to receive dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Collateral Agent which, subject to the terms of the Intercreditor Agent (orAgreements, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and and, subject to the Intercreditor Agreements, shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 6.02 hereof. After all Events of Default have been cured or waived and the Issuers have Company has delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release repay to each Pledgor Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such accountaccount established pursuant to this Section 3.05(b).
(c) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor AgreementAgreements, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Company of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, subject to the extent consistent with, the terms of the Intercreditor Agreement Agreements and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesSecurities then outstanding, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors Grantors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have Company has delivered to the Collateral Agent a certificate to that effect, each Pledgor Grantor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.
Appears in 1 contract
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the First Priority Agent (or, except as provided in the Intercreditor Agreements, following the First Priority Lien Obligations Payment Date, the Collateral Agent Agent) shall have given notice to the relevant Pledgors Grantors of the First Priority Agent’s or the Collateral Agent’s intention intention, as applicable, to exercise its rights hereunderhereunder or under the First Priority Documents:
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Note Documents; provided, provided that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture or any other Indenture Note Document or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall shall, at such Grantor’s sole expense and upon receipt of a written request, promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Note Documents and applicable laws; provided, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged SecuritiesSecurities to the extent such Grantor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities to the extent such Grantor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor First Priority Agent (or, if except as provided in the First-Intercreditor Agreements, following the First Priority Lien Termination Date has occurredObligations Payment Date, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor First Priority Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for as applicable). This clause (iii) shall not apply to dividends between or among the ratable benefit Company, the Grantors and the Subsidiaries only of the Secured Parties, property which shall have the sole and exclusive right and authority is subject to exercise such voting and consensual rights and powersa perfected security interest under this Agreement; provided that, to that the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless Company notifies the Collateral Agent shall have received written objections from Holders in writing, specifically referring to this Section 3.06, at the time of at least 25% in principal amount of the Notes, such dividend and takes any actions the Collateral Agent shall have the right from time specifies to time following and during ensure the continuance of an Event of Default to permit the Pledgors to exercise its perfected security interest in such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) aboveproperty under this Agreement.
Appears in 1 contract
Samples: Collateral Agreement (Realogy Corp)
Voting Rights; Dividends and Interest, etc. (a1) Unless and until an Event of Default shall have has occurred and be is continuing and the Collateral Agent shall have has given at least one (1) Business Day’s prior written notice to the relevant Pledgors Lead Borrower of the Collateral Agent’s intention to exercise its rights hereunder:
(ia) Each Pledgor shall each Grantor will be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture Credit Agreement and the other Indenture Loan Documents; provided, provided that, except as permitted under the IndentureCredit Agreement, such rights and powers shall will not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other applicable Secured Parties under this Agreement, the Indenture Credit Agreement or any other Indenture Loan Document or the ability of the applicable Secured Parties to exercise the same.;
(iib) The the Collateral Agent shall will promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such PledgorGrantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (ia) above.; and
(iiic) Each Pledgor shall each Grantor will be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the other Indenture Loan Documents and applicable laws; provided, provided that (Ai) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (Bii) any non-cash noncash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall will be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent Collateral Agent, for the benefit of the applicable Secured Parties, and will be forthwith delivered to the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the applicable Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b2) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after at least one (1) Business Day’s prior written notice by the Collateral Administrative Agent to the Issuers Lead Borrower of the Collateral Administrative Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii1)(c) of this Section 3.05 shall will cease, and all such rights shall will thereupon become vested, for the ratable benefit of the applicable Secured Parties, in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall will have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence and during the continuance of an Event of Default, and such one at least (1) Business Day’s prior written notice, any Pledgor Grantor may continue to exercise dividend receive dividends and distribution rights distributions solely to the extent permitted under subclause (xii6)(a), subclause (6)(c) and subclause (xiii)(A6)(e) of Sections 4A.04(b) and 4B.04(b) Section 6.06 of the Indenture. Credit Agreement.
(3) All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall will not be commingled by such Pledgor Grantor with any of its other funds or property property, but shall will be held separate and apart therefrom, shall will be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the applicable Secured Parties, and shall will be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the applicable Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall 3), subject to the Intercreditor Agreements, will be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall will be applied in accordance with the provisions of Section 5.02 Article V hereof. After all such Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurredwaived, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall will promptly release repay to each Pledgor Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii1)(c) of this Section 3.05 and that remain in such account.
(c4) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent shall have given at least one (1) Business Day’s prior written notice to the Issuers Lead Borrower of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i1)(a) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii1)(b) of this Section 3.05, shall will cease, and all such rights shall will thereupon become vested in the Collateral Agent, for the ratable benefit of the applicable Secured Parties, which shall will have the sole and exclusive right and authority to exercise such voting and consensual rights and powerspowers (subject to the Intercreditor Agreements); provided that, to that unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesRequired Lenders, the Collateral Agent shall will have the right from time to time following and during the continuance of an Event of Default and such at least one (1) Business Day’s prior written notice to permit the Pledgors Grantors to exercise such rights. After all such Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effectwaived, each Pledgor shall Grantor will have the right to exercise the voting and/or consensual rights and powers that such Pledgor Grantor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i1)(a) above.
Appears in 1 contract
Samples: Term Loan Guarantee and Collateral Agreement (Neiman Marcus Group LTD LLC)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder:hereunder (to the extent permitted by the Intercreditor Agreements):
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Noteholder Documents; provided, provided that, except as permitted under the Indenture, such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Indenture Secured Parties under this Agreement, the Indenture or any other Indenture Noteholder Document or the ability of the Indenture Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Noteholder Documents and applicable laws; provided, provided that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or and (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but but, subject to the Intercreditor Agreements, shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent Collateral Agent, for the ratable benefit of the Indenture Secured Parties, and shall be forthwith delivered to the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Indenture Secured Parties, in the same form as so received (duly endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)by such Pledgor).
(b) In accordance with, and Subject to the extent consistent with, the terms of the Intercreditor AgreementAgreements, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers Issuer of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to dividends, interest, principal or other distributions that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 2.05 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Indenture Secured Parties, in the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.and
Appears in 1 contract
Samples: Collateral Agreement
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given three Business Days’ written notice to the relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder:
(i) Each Pledgor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral or any part thereof for any purpose consistent with not prohibited by the terms of this Agreement, the Indenture and the Credit Agreement or any other Indenture Loan Documents; provided, provided that, except as permitted under not prohibited by the IndentureCredit Agreement or any other Loan Documents, such rights and powers shall not be exercised in any manner that could be reasonably likely to materially and adversely affect the rights inuring to a holder of any Pledged Collateral, the rights and remedies of any of the Collateral Agent or the other Secured Parties under this Agreement, the Indenture Agreement or any other Indenture Document Loan Documents or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each Pledgor, or cause to be executed and delivered to such Pledgor, all such proxies, powers of attorney and other instruments as such Pledgor may reasonably request for the purpose of enabling such Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Pledgor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted not prohibited by, and otherwise paid or distributed in accordance with, the terms and conditions of the IndentureCredit Agreement, the any other Indenture Documents Loan Document and applicable laws; provided, provided that (A) any noncash non-cash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, that would constitute Pledged SecuritiesSecurities to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, received in exchange for Pledged Securities or any part thereof, or in redemption thereof, as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities to the extent such Pledgor has the rights to receive such Pledged Securities if they were declared, distributed and paid on the date of this Agreement, in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplus, shall be and become part of the Pledged Collateral, and, if received by any Pledgor, shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, and shall be forthwith promptly delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and after three Business Days’ written notice by the Collateral Agent to the Issuers relevant Pledgors of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to receive dividends, interest, principal or other distributions with respect to Pledged Securities that such Pledgor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 2.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, in the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) which shall have the sole and exclusive right and authority to receive and retain such dividends, interest, principal or other distributions; provided, however, provided that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, and shall be forthwith delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)). Any and all money and other property paid over to or received by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof. After all Events of Default have been cured or waived and the Issuers have delivered to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate to that effect, the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) shall promptly release to each Pledgor (without interest) all dividends, interest, principal or other distributions that such Pledgor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default and after notice by the Collateral Agent to the Issuers of the Collateral Agent’s intention to exercise its rights hereunder, all rights of any Pledgor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.05, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.05, shall cease, and all such rights shall thereupon become vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the Notes, the Collateral Agent shall have the right from time to time following and during the continuance of an Event of Default to permit the Pledgors to exercise receive and retain such rights. After all Events amounts; provided, further, that, notwithstanding the occurrence of Default have been cured or waived and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) above.an Event
Appears in 1 contract
Samples: Collateral Agreement (Cerence Inc.)
Voting Rights; Dividends and Interest, etc. (a) Unless and until an Event of Default shall have occurred and be continuing and the Collateral Agent shall have given the Grantors notice to the relevant Pledgors of the Collateral Agent’s intention its intent to exercise its rights hereunder:under this Agreement (which notice shall be deemed to have been given immediately upon the occurrence of an Event of Default under paragraph (6) or (7) of Section 7.01 of the Indenture):
(i) Each Pledgor Grantor shall be entitled to exercise any and all voting and/or other consensual rights and powers inuring to an owner of Pledged Collateral Securities or any part thereof for any purpose consistent with the terms of this Agreement, the Indenture and the other Indenture Operative Documents; provided, thathowever, except as permitted under the Indenture, that such rights and powers shall not be exercised in any manner that could materially and adversely affect the rights inuring to is inconsistent with or that would result in a holder breach of any Pledged Collateral, the rights and remedies provision of any of the Collateral Agent this Agreement or the other Secured Parties under this Agreement, the Indenture or any other Indenture Operative Document or the ability of the Secured Parties to exercise the samerights and remedies provided hereunder or under the Indenture or any other Operative Document with respect to such Pledged Securities.
(ii) The Collateral Agent shall promptly execute and deliver to each PledgorGrantor, or cause to be executed and delivered to such Pledgoreach Grantor, all such proxies, powers of attorney and other instruments as such Pledgor Grantor may reasonably request for the purpose of enabling such Pledgor Grantor to exercise the voting and/or consensual rights and powers it is entitled to exercise pursuant to subparagraph paragraph (i) above.
(iii) Each Pledgor Grantor shall be entitled to receive and retain any and all dividends, interest, principal and other distributions paid on or distributed in respect of the Pledged Collateral Securities to the extent and only to the extent that such dividends, interest, principal and other distributions are permitted by, and otherwise paid or distributed in accordance with, the terms and conditions of the Indenture, the other Indenture Operative Documents and applicable lawslaw; provided, however, that (A) any noncash dividends, interest, principal or other distributions, payments or other consideration in respect thereof, including any rights to receive the same to the extent not so distributed or paid, distributions that would constitute Pledged Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding Equity Interests of the issuer of any Pledged Securities, Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise or (B) any non-cash dividends and other distributions paid or payable in respect of any Pledged Securities that would constitute Pledged Securities in connection with a partial or total liquidation or dissolution or in connection with a reduction of capital, capital surplus or paid in surplusotherwise, shall be and become part of the Pledged Collateral, and, if received by any PledgorGrantor, shall not be commingled by such Pledgor Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held in trust for the benefit of the Intercreditor Agent and the Collateral Agent, for the ratable benefit of the Secured Parties, Parties and shall be forthwith delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement or instrument of assignment).
(b) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(iii) of this Section 3.06, then all rights of any Pledgor Grantor to dividends, interest, principal or other distributions that such Pledgor Grantor is authorized to receive pursuant to paragraph (a)(iii) of this Section 3.05 3.06 shall cease, and all such rights shall thereupon become vested, for the ratable benefit of the Secured Parties, vested in the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) , which shall have the sole and exclusive right and authority (subject to the Intercreditor Agreement or any other Acceptable Intercreditor Agreement, as the case may be) to receive and retain such dividends, interest, principal or other distributions; provided, however, that even after the occurrence of an Event of Default, any Pledgor may continue to exercise dividend and distribution rights solely to the extent permitted under subclause (xii) and subclause (xiii)(A) of Sections 4A.04(b) and 4B.04(b) of the Indenture. All dividends, interest, principal or other distributions received by any Pledgor Grantor contrary to the provisions of this Section 3.05 shall not be commingled by such Pledgor with any of its other funds or property but shall be held separate and apart therefrom, 3.06 shall be held in trust for the benefit of the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit shall be segregated from other property or funds of the Secured Parties, such Grantor and shall be forthwith promptly delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent), for the ratable benefit of the Secured Parties, upon demand in the same form as so received (endorsed in a manner reasonably satisfactory to the Intercreditor Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent)with any necessary endorsement or instrument of assignment). Any and all money and other property paid over to or received by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) pursuant to the provisions of this paragraph (b) shall be retained by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) in an account to be established by the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) upon receipt of such money or other property and shall be applied in accordance with the provisions of Section 5.02 hereof5.02. After all Events of Default have been cured or waived and the Issuers have each applicable Grantor has delivered to the Intercreditor Collateral Agent (or, if the First-Lien Termination Date has occurred, the Collateral Agent) a certificate certificates to that effect, the Intercreditor Collateral Agent (orshall, if the First-Lien Termination Date has occurredpromptly after all such Events of Default have been cured or waived, the Collateral Agent) shall promptly release repay to each Pledgor applicable Grantor (without interest) all dividends, interest, principal or other distributions that such Pledgor Grantor would otherwise be permitted to retain pursuant to the terms of paragraph (a)(iii) of this Section 3.05 3.06 and that remain in such account.
(c) In accordance with, and to the extent consistent with, the terms of the Intercreditor Agreement, upon Upon the occurrence and during the continuance of an Event of Default and Default, after notice by the Collateral Agent shall have notified (or shall be deemed to have notified pursuant to Section 3.06(a)) the Issuers Grantors of the Collateral Agent’s intention to exercise its suspension of their rights hereunderunder paragraph (a)(i) of this Section 3.06, then all rights of any Pledgor Grantor to exercise the voting and/or and consensual rights and powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section 3.053.06, and the obligations of the Collateral Agent under paragraph (a)(ii) of this Section 3.053.06, shall cease, and all such rights shall thereupon become become, subject to the Intercreditor Agreement or any other Acceptable Intercreditor Agreement, as the case may be, vested in the Collateral Agent, for the ratable benefit of the Secured Parties, which shall have the sole and exclusive right and authority to exercise such voting and consensual rights and powers; provided that, to unless otherwise directed by the extent consistent with, the terms of the Intercreditor Agreement and the Indenture, unless the Collateral Agent shall have received written objections from Holders of at least 25% in principal amount of the NotesMajority Holders, the Collateral Agent shall have the right from time to time following and during the continuance period when only the Collateral Agent is entitled to exercise such rights under this clause (c) to permit the Grantors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Grantors exercising its rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without suspending all such rights (as specified by the Collateral Agent in its sole and absolute discretion) and without waiving or otherwise affecting the Collateral Agent’s rights to give additional notices from time to time suspending other rights so long as an Event of Default to permit the Pledgors to exercise such rights. After all Events of Default have been cured or waived has occurred and the Issuers have delivered to the Collateral Agent a certificate to that effect, each Pledgor shall have the right to exercise the voting and/or consensual rights and powers that such Pledgor would otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i) aboveis continuing.
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