October 14, 2022 ORCIC JV WH II LLC, as Pledgor U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Secured Party and U.S. BANK NATIONAL ASSOCIATION, as Securities Intermediary SECURITIES ACCOUNT CONTROL AGREEMENT
Exhibit 10.2
EXECUTION VERSION
October 14, 2022
XXXXX XX XX XX LLC,
as Pledgor
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Secured Party
and
U.S. BANK NATIONAL ASSOCIATION,
as Securities Intermediary
SECURITIES ACCOUNT CONTROL AGREEMENT
-i-
This SECURITIES ACCOUNT CONTROL AGREEMENT (this “Agreement”), dated as of October 14, 2022, among XXXXX XX XX XX LLC (the “Pledgor”), U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as collateral custodian (the “Collateral Custodian”) on behalf of the Secured Parties to the Loan Agreement defined below (the “Secured Party”) and U.S. BANK NATIONAL ASSOCIATION, as securities intermediary (the “Securities Intermediary”).
In consideration of the mutual agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
INTERPRETATION
Section 1. (a) Definitions. The terms defined in Section 13 will have the meanings therein specified for the purpose of this Agreement. In addition, all terms used herein which are defined in the Revolving Loan Agreement, dated as of the date hereof, among the Pledgor, each CLO subsidiary from time to time party thereto, ORCIC BC 9 LLC, as collateral manager, the Collateral Custodian, Royal Bank of Canada, as administrative agent and the Lenders from time to time party thereto (as may be amended, restated, supplemented and modified from time to time, the “Loan Agreement”) or in Article 8 or Article 9 of the UCC and which are not otherwise defined herein are used herein as so defined.
(b) Rules of Construction. Unless the context otherwise clearly requires: (i) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (ii) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (iv) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (v) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (vi) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (vii) the words “herein,” “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (viii) all references herein to Sections shall be construed to refer to Sections of this Agreement and (ix) any reference to “execute”, “executed”, “sign”, “signed”, “signature” or any other like term hereunder shall include execution by electronic signature (including, without limitation, any PDF file, .jpeg file, or any other electronic or image file, or any “electronic signature” as defined under the U.S. Electronic Signatures in Global and National Commerce Act (“E-SIGN”) or the New York Electronic Signatures and Records Act (“ESRA”), which includes any electronic signature provided using Orbit, Adobe Fill & Sign, Adobe Sign, DocuSign, or any other similar platform identified by the Pledgor and reasonably available at no undue burden or expense to the Secured Party or the Securities Intermediary), except to the extent the Securities Intermediary or the Collateral Custodian requests otherwise. Any such electronic signatures shall be valid, effective and legally binding as if such electronic signatures were handwritten signatures and shall be deemed to have been duly and validly delivered for all purposes hereunder.
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APPOINTMENT OF SECURITIES INTERMEDIARY
Section 2. Each of the Pledgor and the Secured Party hereby appoints the Securities Intermediary as securities intermediary hereunder. The Securities Intermediary hereby accepts such appointment.
THE SECURED ACCOUNTS
Section 3. (a) Establishment of Secured Accounts. The Securities Intermediary acknowledges and agrees that, at the direction and on behalf of the Secured Party, it has established and is maintaining on its books and records, in the name of the Pledgor, (i) the securities account designated as the “Collateral Account” with account number 225487-700 (such account, together with any sub-accounts or replacements thereof or substitutions therefor, the “Collateral Account”), (ii) the securities account designated as the “Collection Account”, which shall be comprised of the following two sub-accounts: (1) the sub-account designated as the “Interest Collection Account” with account number 225487-200 and (2) the sub-account designated as the “Principal Collection Account” with account number 225487-201 (such account, together with any sub-accounts or replacements thereof or substitutions therefor, the “Collection Account”), and (iii) the securities account designated as the “Unfunded Exposure Account” with account number 225487-800 (such account, together with any sub-accounts or replacements thereof or substitutions therefor, the “Unfunded Exposure Account” and, together with the Collateral Account and the Collection Account, the “Secured Accounts”). For the avoidance of doubt (i) the Securities Intermediary shall have the right to open such subaccounts of Secured Accounts as it deems necessary or appropriate for convenience of administration of this Agreement and (ii) references herein to a Secured Account shall include all subaccounts of such Secured Account.
(b) Status of Secured Accounts; Treatment of Property as Financial Assets; Relationship of Parties. The Securities Intermediary hereby agrees with the Pledgor and Secured Party that: (i) each Secured Account is a “securities account” (within the meaning of Section 8-501(a) of the UCC and Article 1(1)(b) of the Hague Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the “Hague Securities Convention”)) in respect of which the Securities Intermediary is a “securities intermediary” (within the meaning of Section 8-102(a)(14) of the UCC) and an “intermediary” within the meaning of Article 1(1)(c) of the Hague Securities Convention, (ii) each item of property (whether cash, a security, an instrument or any other property) credited to any Secured Account shall be treated as a “financial asset” (within the meaning of Section 8-102(a)(9) of the UCC), provided that nothing herein shall require the Securities Intermediary to credit to the Secured Accounts or to treat as a financial asset (within the
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meaning of Section 8-102(a)(9) of the UCC) or other asset in the nature of a general intangible (as defined in Section 9-102(a)(42) of the UCC) or to “maintain” a sufficient quantity thereof (within the meaning of Section 8-504 of the UCC) and (iii) each Secured Account and any rights or proceeds derived therefrom are subject to a security interest in favor of the Secured Party arising under the Loan Agreement. The Pledgor and Secured Party hereby direct the Securities Intermediary, subject to the terms of this Agreement, to identify the Secured Party on its books and records as the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) with respect to each Secured Account and the property held therein and the Securities Intermediary agrees to do the same. Notwithstanding any term hereof or elsewhere to the contrary, it is hereby expressly acknowledged that (a) interests in loans (each, a “Loan”) may be acquired and delivered by the Pledgor to the Securities Intermediary from time to time which are not evidenced by, or accompanied by delivery of, a security (as that term is defined in UCC Section 8-102(15)) or an instrument (as that term is defined in Section 9-102(a)(47) of the UCC), and may be evidenced solely by delivery to the Securities Intermediary of a facsimile copy of an assignment agreement (“Loan Assignment Agreement”) in favor of the Pledgor as assignee, (b) any such Loan Assignment Agreement (and the registration of the related Loan on the books and records of the applicable obligor or bank agent) shall be registered in the name of the Pledgor, (c) any duty on the part of the Securities Intermediary with respect to such Loan (including in respect of any duty it might otherwise have to maintain a sufficient quantity of such Loan for purposes of UCC Section 8-504) shall be limited to the exercise of reasonable care by the Securities Intermediary in the physical custody of any such Loan Assignment Agreement that may be delivered to it, and (d) the Collateral and any rights or proceeds derived therefrom are subject to the liens and other security interests in favor of the Collateral Custodian on behalf of the Secured Parties as set forth in the Loan Agreement and that the rights of the Pledgor in respect of the Collateral are also subject to such liens and such other security interests as set forth in the Loan Agreement.
(c) Crediting Property. The Securities Intermediary will, by book-entry notation, promptly credit to the applicable Secured Account all property to be credited thereto pursuant to the Loan Agreement.
(d) Form of Securities, Instruments, etc. All securities and other financial assets credited to any Secured Account that are in registered form or that are payable to or to the order of shall be (i) registered in the name of, or payable to or to the order of, the Securities Intermediary, (ii) indorsed to or to the order of the Securities Intermediary or in blank or (iii) credited to another securities account maintained in the name of the Securities Intermediary; and in no case will any financial asset credited to any Secured Account be registered in the name of, or payable to or to the order of, the Pledgor or any other person or indorsed to or to the order of the Pledgor or any other person, except to the extent the foregoing have been specially indorsed to or to the order of the Securities Intermediary or in blank.
(e) Securities Intermediary’s Jurisdiction. The Securities Intermediary agrees that, for the purposes of the UCC, its “securities intermediary’s jurisdiction” (within the meaning of Section 8-110(e) of the UCC) shall be the State of New York.
(f) Conflicts with other Agreements. The Securities Intermediary agrees that, if there is any conflict between this Agreement (or any portion thereof) and any other agreement (whether now existing or hereafter entered into) relating to any Secured Account, the provisions of this Agreement shall prevail.
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(g) No Other Agreements. The Securities Intermediary hereby confirms and agrees that:
(i) other than the other account forms required by the Securities Intermediary and this Agreement (such documents, the “Account Documents”) to the best of its knowledge, there are no other agreements entered into between the Securities Intermediary and the Pledgor with respect to any Secured Account or any financial asset or security entitlement credited thereto (other than customary agreements relating to the creation and maintenance of the Secured Accounts);
(ii) other than the Account Documents, it has not entered into, and until the termination of this Agreement will not enter into, any other agreement with any other Person (including the Pledgor) relating to any Secured Account and/or any financial asset or security entitlement thereto (A) pursuant to which it has agreed or will agree to comply with entitlement orders (as defined in Section 8-102(a)(8) of the UCC) of such other Person or (B) with respect to the creation or perfection of any other security interest in any Secured Account or any financial asset or security entitlement credited thereto; and
(iii) it has not entered into, and until the termination of this Agreement will not enter into, any agreement with the Pledgor or the Secured Party purporting to limit or condition the obligation of the Securities Intermediary to comply with entitlement orders as set forth in Section 3(h).
(h) Transfer Orders, Standing Instructions.
(i) The Pledgor, the Secured Party and the Securities Intermediary each agree that if at any time a Responsible Officer of the Securities Intermediary shall receive an “entitlement order” (within the meaning of Section 8-102(a)(8) of the New York UCC) or any other order originated by the Secured Party and relating to any Secured Account or any financial assets or security entitlements credited thereto (collectively, a “Transfer Order”), the Securities Intermediary shall comply with such Transfer Order without further consent by the Pledgor or any other Person. The Securities Intermediary shall have no obligation to act and shall be fully protected in refraining from acting, in respect of any such Collateral in the absence of such Transfer Order.
(ii) At any time prior to the delivery to and receipt by the Securities Intermediary of a Notice of Exclusive Control or after such Notice of Exclusive Control is withdrawn or rescinded by the Secured Party in writing, the Securities Intermediary shall comply with each Transfer Order it receives from the Pledgor (or the Collateral Manager on the Pledgor’s behalf) without the further consent of the Secured Party or any other Person.
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(iii) Upon receipt by the Securities Intermediary of a Notice of Exclusive Control, and until such Notice of Exclusive Control is withdrawn or rescinded by the Secured Party in writing, the Securities Intermediary shall not comply with any Transfer Order it receives from the Pledgor and shall act solely upon Transfer Orders received from the Secured Party.
(iv) The Secured Party hereby agrees with the Pledgor that it shall (x) not deliver a Notice of Exclusive Control except after the occurrence and during the continuation of an Event of Default and (y) at the direction of the Administrative Agent, promptly rescind any Notice of Exclusive Control if the Event of Default under the Loan Agreement has been waived or cured in accordance with the terms of the Loan Agreement.
(v) Notwithstanding anything herein or any other Transaction Document to the contrary, the Collateral Manager shall have no authority to hold (directly or indirectly), or otherwise take possession of, any funds or securities in any Secured Account. Without limiting the foregoing, the Collateral Manager shall have no authority to (i) sign checks on the Pledgor’s behalf, (ii) deduct fees from any Secured Account, (iii) withdraw funds or securities from any Secured Account, or (iv) give the Securities Intermediary any “entitlement orders” or any other instruction relating to the Secured Account for any purpose other than pursuant to transactions authorized by the Loan Agreement or the other Transaction Documents. Nothing in this Section 3(h)(v) shall prohibit the Collateral Manager from issuing instructions to the Secured Party or the Securities Intermediary to effect or to settle any bills of sale, assignments, agreements, investments instructions and other instruments in connection with any acquisition, sale or other disposition of any Collateral of the Pledgor as permitted by the Loan Agreement or the other Transaction Documents. The Collateral Manager agrees that any requests regarding the disbursement of any funds in the Secured Accounts must be made in accordance with the Loan Agreement. All disbursements requested by the Collateral Manager may be paid only in accordance with the procedures set forth in the Loan Agreement and expressly set forth herein.
THE SECURITIES INTERMEDIARY
Section 4. (a) Performance of Duties. The Securities Intermediary may execute any of the powers hereunder or perform any of its duties hereunder directly or by or through agents, attorneys or employees; provided that the Securities Intermediary shall not be responsible for any misconduct or negligence on the part of any non-Affiliated agent or non-Affiliated attorney appointed by it with due care. The Securities Intermediary shall be entitled to consult with counsel selected with due care and to act in reliance upon the written opinion of such counsel concerning matters pertaining to its duties hereunder, and shall not be liable for any action taken or omitted to be taken by it in good faith in reliance upon and in accordance with the advice or opinion of such counsel. Except as expressly provided herein, the Securities Intermediary shall not be under any obligation to exercise any of the rights or powers vested in it by this Agreement at the request or direction of the Secured Party.
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(b) No Change to Secured Accounts. Without the prior written consent of the Pledgor, the Collateral Manager and, so long as any Obligations remain unpaid, neither the Secured Party nor the Securities Intermediary will change the account number or designation of any Secured Account.
(c) Certain Information. The Securities Intermediary shall promptly notify the Pledgor and the Secured Party if a Responsible Officer of the Securities Intermediary with direct responsibility for administration of this Agreement has actual knowledge of or receives written notice that any Person asserts or seeks to assert a lien, encumbrance or adverse claim against any portion or all of the property credited to any Secured Account. The Securities Intermediary will send copies of all statements, confirmations and other correspondence relating to each Secured Account (and/or any financial assets credited thereto) simultaneously to the Pledgor, the Collateral Manager and the Secured Party. The Securities Intermediary will furnish to the Secured Party, the Collateral Manager and the Pledgor, upon written request, an account statement with respect to each Secured Account.
(d) Subordination. In the event that the Securities Intermediary has or subsequently obtains by agreement, by operation of law or otherwise a security interest in any of the Secured Accounts, or any financial asset credited thereto, the Securities Intermediary hereby subordinates any such security interest therein to the security interest of the Collateral Custodian for the benefit of the other Secured Parties to the Loan Agreement in the Secured Accounts, in all property credited thereto and in all security entitlements with respect to such property. Without limitation of the foregoing, the Securities Intermediary hereby subordinates to such security interest of the Collateral Custodian any and all statutory, regulatory, contractual or other rights now or hereafter existing in favor of the Securities Intermediary over or with respect to any Secured Account, all property credited thereto and all security entitlements to such property (including (i) any and all contractual rights of set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of the Pledgor with respect to any Secured Account or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in any Secured Account), except the Securities Intermediary may set off (A) the face amount of any checks that have been credited to any Secured Account but are subsequently returned unpaid because of uncollected or insufficient funds and all amounts due to it in respect of customary fees and expenses for the routine maintenance and operation of the Secured Accounts and (B) reversals or cancellations of payment orders and other electronic fund transfers, including ACH and wire transfers.
(e) Limitation on Liability. The Securities Intermediary shall not have any duties or obligations except those expressly set forth herein. The Securities Intermediary shall perform its duties in accordance with the terms hereof and shall satisfy those duties expressly set forth herein so long as it acts without fraud, gross negligence, willful misconduct or bad faith. Without limiting the generality of the foregoing, the Securities Intermediary shall not
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be subject to any fiduciary or other implied duties, and the Securities Intermediary shall not have any duty to take any discretionary action or exercise any discretionary powers. None of the Securities Intermediary, any Affiliate of the Securities Intermediary, or any officer, agent, stockholder, partner, member, director or employee of the Securities Intermediary or any Affiliate of the Securities Intermediary shall have any liability, whether direct or indirect and whether in contract, tort or otherwise (i) for any action taken or omitted to be taken by any of them hereunder or in connection herewith unless such act or omission constituted fraud, gross negligence, willful misconduct or bad faith or (ii) for any action taken or omitted to be taken by the Securities Intermediary in accordance with the terms hereof at the express direction of the Secured Party. In addition, the Securities Intermediary shall have no liability for making any investment or reinvestment of any cash balance in any Secured Account, or holding amounts uninvested in such accounts, pursuant to the terms of this Agreement except for the failure to comply with any order provided by the Pledgor or the Secured Party, as applicable, if such failure constitutes gross negligence, willful misconduct or bad faith. The liabilities of the Securities Intermediary shall be limited to those expressly set forth in this Agreement. The Securities Intermediary shall not be liable for any action a Responsible Officer of the Securities Intermediary takes or omits to take in good faith that it reasonably believes to be authorized or within its rights or powers hereunder, unless such action constitutes gross negligence, willful misconduct or bad faith. The Securities Intermediary shall not be deemed to have notice or knowledge of any Event of Default unless a Responsible Officer of the Securities Intermediary has actual knowledge thereof or unless written notice thereof is received by a Responsible Officer of the Securities Intermediary. For the avoidance of doubt, to the extent permitted by applicable law, the Securities Intermediary shall not be responsible for complying with Section 8-505(a) of the UCC. With the exception of this Agreement (and relevant terms used herein and expressly defined in the Loan Agreement), the Securities Intermediary is not responsible for or chargeable with knowledge of any terms or conditions contained in any agreement referred to herein, including, but not limited to, the Loan Agreement. The Securities Intermediary shall in no event be liable for the application or misapplication of funds by any other person, or for the acts or omissions of any other person (including, without limitation, those of the Pledgor).
(f) Reliance. The Securities Intermediary shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, any notice, request, opinion, report, electronic communication, certificate, consent, statement, instrument, document or other writing including, but not limited to, an electronic mail communication delivered to the Securities Intermediary under or in connection with this Agreement and in good faith believed by it to be genuine and to have been signed or sent by the proper Person. The Securities Intermediary shall not be bound to make any investigation into the facts or matter stated in any notice, request, opinion, report, electronic communication, certificate, consent, statement, instrument, document or other writing. The Securities Intermediary may consult with legal counsel, independent accountants and other experts selected by it with due care, and shall not be liable for any action taken or not taken by the Securities Intermediary in good faith and in accordance with the advice of any such counsel, accountants or experts. If at any time the Securities Intermediary requests instruction with respect to any action or omission in connection with this Agreement, the Securities Intermediary shall be entitled (without incurring any liability therefor to any person) to refrain from taking such action and continue to refrain from acting unless and until the Securities Intermediary shall have received written instruction from the party from whom instruction was requested. The Securities Intermediary shall not be liable for any error of judgment made in good faith by an officer or officers of the Securities Intermediary, except for its own gross negligence, fraud or willful misconduct or reckless disregard of its duties or obligations hereunder.
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(g) Rights. U.S. Bank National Association, in its capacity as Securities Intermediary hereunder shall be afforded all of the rights, powers, immunities and indemnities that are afforded to the Collateral Custodian under the Loan Agreement as if such rights, powers, immunities and indemnities were specifically set forth herein.
(h) Neither the Securities Intermediary nor the Secured Party (i) shall have any duty to investigate whether any instruction or entitlement order issued by the Collateral Manager on behalf of the Pledgor is issued in connection with a transaction authorized by the Loan Agreement or other Transaction Document and (ii) assumes any liability for its compliance with any instruction or entitlement order issued by the Collateral Manager on behalf of the Pledgor due to such instruction or entitlement order being made other than in connection with a transaction authorized by the Loan Agreement or other Transaction Document.
(i) Whenever in the administration of the provisions of this Agreement the Securities Intermediary shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of gross negligence or willful misconduct on the part of the Securities Intermediary or reckless disregard of its duties or obligations hereunder, be deemed to be conclusively proved and established by a certificate signed by one of the Secured Party’s officers and delivered to the Securities Intermediary, and such certificate, in the absence of fraud, gross negligence or willful misconduct on the part of the Securities Intermediary or reckless disregard of its duties or obligations hereunder, shall be full warrant to the Securities Intermediary for any action taken, suffered or omitted by it under the provisions of this Agreement upon the faith thereof.
(j) Court Orders, etc. If at any time the Securities Intermediary is served with any judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process which in any way affects any Secured Account (including, but not limited to, orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of any Secured Account or any financial asset in any Secured Account), the Securities Intermediary is authorized to take such action as legal counsel of its own choosing advises appropriate to comply therewith; and if the Securities Intermediary complies with any such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, the Securities Intermediary will not be liable to any of the parties hereto or to any other person or entity even though such order, judgment, decree, writ or process may be subsequently modified or vacated or otherwise determined to have been without legal force or effect.
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(k) Successor Securities Intermediary.
(i) Merger. Any Person into whom the Securities Intermediary may be converted or merged, or with whom it may be consolidated, or to whom it may sell or transfer all or substantially all of its securities intermediary business, or any Person resulting from any such conversion, sale, merger, consolidation or transfer to which the Securities Intermediary is a party, shall (provided that it is otherwise qualified to serve as the Securities Intermediary hereunder) be and become a successor Securities Intermediary hereunder and be vested with all of the powers, immunities, privileges and other matters as was its predecessor without the execution or filing of any instrument or any further act, deed or conveyance on the part of any of the parties hereto, anything herein to the contrary notwithstanding. Any successor to the Secured Party under the Loan Agreement shall be the successor to the Secured Party hereunder without the execution or filing of any document or any further act on the part of any of the parties hereto.
(ii) Resignation. The Securities Intermediary and any successor thereto may at any time resign by giving 45 days’ written notice by registered, certified or express mail to the Secured Party, the Collateral Manager and the Pledgor; provided that such resignation shall take effect only upon the effective date of the appointment of a successor Securities Intermediary acceptable to the Secured Party, the Collateral Manager and the Pledgor, as evidenced by their written consent and the acceptance in writing by such successor Securities Intermediary of such appointment and of its obligation to perform its duties hereunder in accordance with the provisions hereof. Subject to the preceding sentence, if, on the 45th day after written notice of resignation is delivered by a resigning party as described above, no successor party or temporary successor Securities Intermediary has been appointed in accordance herewith, the resigning party may petition a court of competent jurisdiction in New York City for the appointment of a successor.
(l) Compensation and Reimbursement. The Pledgor agrees: (A) to pay to the Securities Intermediary from time to time, compensation in accordance with the Collateral Custodian Fee Letter and (B) to reimburse the Securities Intermediary upon its request for all reasonable and documented out-of-pocket expenses, disbursements and advances incurred or made by the Securities Intermediary in accordance with any provision of, or carrying out its duties and obligations under, this Agreement (including the reasonable compensation and fees and the expenses and disbursements of its agents, any Independent certified public accountants and Independent counsel), except any expense, disbursement or advance as may be attributable to gross negligence, fraud, bad faith or willful misconduct on the part of the Securities Intermediary.
(m) Securities Intermediary and their Affiliates. U.S. Bank Trust Company, National Association, U.S. Bank National Association and any of their affiliates providing services in connection with the transactions contemplated in the Transaction Documents shall have only the duties and responsibilities expressly provided in their various capacities and shall not, by virtue of either party or any Affiliate thereof acting in any other capacity be deemed to have duties or responsibilities other than as expressly provided with respect to
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each such capacity. U.S. Bank Trust Company, National Association and U.S. Bank National Association (or their Affiliates), in its various capacities in connection with the transactions contemplated in the Transaction Documents, including as Securities Intermediary, may enter into business transactions, including the acquisition of investment securities as contemplated by the Transaction Documents, from which they and/or such Affiliates may derive revenues and profits in addition to the fees stated in the various Transaction Documents, without any duty to account therefor.
(n) Force Majeure. In no event shall the Securities Intermediary be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Securities Intermediary shall use reasonable efforts which are consistent with accepted practices in the banking industry to maintain performance and, if necessary, resume performance as soon as practicable under the circumstances.
(o) Perfection. The Securities Intermediary shall have no responsibility or liability for (i) preparing, recording, filing, re-recording or refiling any financing statement, continuation statement, document, instrument or other notice in any public office at any time or times, (ii) the correctness of any such financing statement, continuation statement, document or instrument or other such notice, (iii) taking any action to perfect or maintain the perfection of any security interest granted to the Secured Party or otherwise or (iv) the validity or perfection of any such lien or security interest.
(p) Electronic Transmissions. The Securities Intermediary shall be entitled to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail (in the form of a .pdf or other similar format file of a signed document) or other similar unsecured electronic methods; provided that any Person providing such instructions or directions shall provide to the Securities Intermediary an incumbency certificate listing such designated Persons, which such incumbency certificate shall be amended and replaced whenever a Person is to be added or deleted from the listing. If the Pledgor elects to give the Securities Intermediary e-mail instructions (or instructions by a similar electronic method), the Securities Intermediary’s understanding of such instructions shall be deemed controlling. The Securities Intermediary shall not be liable for any losses, costs or expenses arising directly or indirectly from the Securities Intermediary’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction; it being understood that once the Securities Intermediary has an opportunity to act in accordance with such subsequent written instructions, it shall act in accordance therewith to the extent reasonably possible. The Pledgor agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Securities Intermediary, including without limitation the risk of the Securities Intermediary acting on unauthorized instructions, and the risk of interception and misuse by third parties and acknowledges and agrees that there may be more secure methods of transmitting such instructions than the method(s) selected by it and agrees that the security procedures (if any) to be followed in connection with its transmission of such instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances.
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INDEMNITY; LIMITATION ON DAMAGES; EXPENSES; FEES
Section 5. (a) Indemnity.
(i) Subject to Section 5(a)(ii), the Pledgor hereby agrees to indemnify and hold harmless the Securities Intermediary, its Affiliates and their respective officers, directors, employees, representatives and agents (collectively referred to for the purposes of this Section 5(a) as the “Securities Intermediary Parties”), against any loss, claim, damage, expense or liability (including the costs and expenses of defending against any claim of liability), or any action in respect thereof, to which any Securities Intermediary Party may become subject, whether commenced or threatened, insofar as such loss, claim (whether brought by or involving the Pledgor or any third party), damage, expense, liability or action arises out of or is based upon the execution, delivery, enforcement or performance of this Agreement, but excluding any such loss, claim, damage, expense, liability or action arising out of the bad faith, gross negligence or willful misconduct of such Securities Intermediary Party, and shall reimburse such Securities Intermediary Party promptly upon demand for any reasonable and documented out-of-pocket legal or other expenses reasonably incurred by such Securities Intermediary Party in connection with investigating or preparing to defend or defending against or appearing as a third party witness in connection with any such loss, claim, damage, expense, liability or action as such expenses are incurred. No provision of this Agreement shall require any Securities Intermediary Party to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The obligations of the Pledgor under this clause (a) are referred to as the “Securities Intermediary Indemnity”. The provisions of this section will survive the termination of this Agreement and the resignation or removal of the Securities Intermediary.
(ii) The obligation of the Pledgor to pay any amounts in respect of the Securities Intermediary Indemnity shall be paid or caused to be paid by the Pledgor to the Securities Intermediary on the Payment Date following the Securities Intermediary’s demand therefor in accordance with Section 2.7 or 2.8, as applicable, of the Loan Agreement and shall survive the termination of this Agreement and the resignation or removal of the Securities Intermediary.
(b) Expenses and Fees. The Pledgor shall be responsible for, and hereby agrees to pay, all reasonable and documented out-of-pocket costs and expenses incurred by the Securities Intermediary in connection with the establishment and maintenance of each Secured Account, including the Securities Intermediary’s customary fees and expenses, any reasonable and documented out-of-pocket costs or expenses incurred by the Securities
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Intermediary as a result of conflicting claims or notices involving the parties hereto, including the reasonable and documented fees and expenses of its external legal counsel, and all other reasonable out-of-pocket costs and expenses incurred in connection with the execution, administration or enforcement of this Agreement including reasonable attorneys’ fees and costs, whether or not such enforcement includes the filing of a lawsuit.
(c) No Consequential Damages. Notwithstanding anything in this Agreement to the contrary, in no event shall the Securities Intermediary be liable for special, punitive, incidental, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits or diminution in value), even if the Securities Intermediary has been advised of such loss or damage and regardless of the form of action.
REPRESENTATIONS AND AGREEMENTS
Section 6. The Securities Intermediary represents to and agrees with the Pledgor and the Secured Party that:
(a) Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing.
(b) Powers. It has the power to execute this Agreement and any other documentation relating to this Agreement to which it is a party, to deliver this Agreement and any other documentation relating to this Agreement that it is required by this Agreement to deliver and to perform its obligations under this Agreement; it has taken all necessary action to authorize such execution, delivery and performance; and this Agreement has been, and each other such document will be, duly executed and delivered by it.
(c) Obligations Binding. Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).
(d) Waiver of Setoffs. The Securities Intermediary hereby expressly waives any and all rights of setoff that such party may otherwise at any time have under Applicable Law with respect to any Secured Account.
(e) Ordinary Course. The Securities Intermediary, in the ordinary course of its business, maintains securities accounts for others and is acting in such capacity in respect of any Secured Account.
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(f) Comply with Duties. The Securities Intermediary will comply at all times with the duties of a “securities intermediary” under Article 8 of the UCC.
(g) Participant of the Federal Reserve System. The Securities Intermediary is a member of the Federal Reserve System.
(h) Consents. All governmental and other consents that are required to have been obtained by the Securities Intermediary with respect to the execution, delivery and performance by the Securities Intermediary of this Agreement have been obtained and are in full force and effect and all conditions of any such consents have been complied with.
(i) Qualified Custodian. The Securities Intermediary acknowledges that, for the purposes of any Account described herein, it shall be deemed the “qualified custodian” as defined in Rule 206-4(2) under the Investment Advisers Act of 1940, as amended. For the avoidance of doubt and notwithstanding anything herein to the contrary, the Pledgor agrees that the Securities Intermediary shall not have nor shall be implied to have any duties with respect to furnishing reports or other information except as expressly set forth in the Transaction Documents.
ADVERSE CLAIMS
Section 7. Except for the claims and interest set forth in this Agreement, no Responsible Officer of the Securities Intermediary has received written notice of any claim to, or interest in, any Secured Account or in any “financial asset” (as defined in Section 8-102(a) of the UCC) credited thereto. If a Responsible Officer of the Securities Intermediary with direct responsibility for administration of this Agreement has actual knowledge of or receives written notice that any Person asserts or seeks to assert a lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Secured Account or in any financial asset carried therein, the Securities Intermediary will promptly notify the Pledgor thereof (and the Pledgor shall promptly notify the Secured Party thereof).
TRANSFER
Section 8. Neither this Agreement nor any interest or obligation in or under this Agreement may be transferred (whether by way of security or otherwise) by any party without the prior written consent of each other party, except as specified in Section 10(d). Any purported transfer that is not in compliance with this Section 8 will be void.
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TERMINATION
Section 9. The rights and powers granted herein to the Secured Party have been granted in order to perfect its security interest for the benefit of the other Secured Parties to the Loan Agreement in each Secured Account and the financial assets credited thereto, are powers coupled with an interest and will be affected neither by the bankruptcy of the Pledgor nor by the lapse of time. The obligations of the Securities Intermediary hereunder shall continue in effect until the earlier of (a) that date upon which such security interest of the Secured Party in each Secured Account has been terminated and (b) that date upon which the Secured Party releases or terminates its security interest in each Secured Account. The Securities Intermediary shall thereafter take such steps as the Pledgor may reasonably request to vest ownership and control of the Secured Accounts in the Pledgor.
MISCELLANEOUS
Section 10. (a) Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by other methods of electronic transmission), executed by each of the parties hereto with the prior written consent of the Administrative Agent and the Collateral Manager.
(c) Survival. All representations and warranties made in this Agreement or in any certificate or other document delivered pursuant to or in connection with this Agreement shall survive the execution and delivery of this Agreement or such certificate or other document (as the case may be) or any deemed repetition of any such representation or warranty. In addition, the rights of the Securities Intermediary under Sections 4 and 5, and the obligations of the Pledgor under Section 5, shall survive the termination of this Agreement and the resignation or removal of the Securities Intermediary.
(d) Benefit of Agreement. Subject to Section 8, this Agreement shall be binding upon and inure to the benefit of the Pledgor, the Secured Party and the Securities Intermediary and their respective successors and permitted assigns. The Securities Intermediary acknowledges and consents to the assignment of this Agreement by the Pledgor to the Collateral Custodian for the benefit of the Secured Parties under the Loan Agreement.
(e) Counterparts. This Agreement (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by e-mail correspondence), each of which will be deemed an original. Signature pages to this Agreement may be delivered by electronic transmission or by e-mail with a pdf copy or other replicating image attached, and any printed or copied version of any signature page so
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delivered will have the same force and effect as an originally signed signature page. Counterparts may be executed and delivered via electronic mail or other transmission method and may be executed by electronic signature (including, without limitation, any PDF file, .jpeg file, or any other electronic or image file, or any “electronic signature” as defined under U.S. Electronic Signatures in Global and National Commerce Act or the New York Electronic Signatures and Records Act, which includes any electronic signature provided using Orbit, Adobe Fill & Sign, Adobe Sign, DocuSign) and any counterpart so delivered shall be valid, effective and legally binding as if such electronic signatures were handwritten signatures and shall be deemed to have been duly and validly delivered for all purposes hereunder. In case any provision in or obligation under this Agreement is determined to be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, will not be affected or impaired in any way. This Agreement, the other Transaction Documents and any agreements or letters (including fee letters) executed in connection herewith contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and constitute the entire agreement among the parties hereto with respect to the subject matter hereof, superseding all prior oral or written understandings.
(f) No Waiver of Rights. A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.
(h) Severability. If any provision of this Agreement, or the application thereof to any party or any circumstance, is held to be unenforceable, invalid or illegal (in whole or in part) for any reason (in any jurisdiction), the remaining terms of this Agreement, modified by the deletion of the unenforceable, invalid or illegal portion (in any relevant jurisdiction), will continue in full force and effect, and such unenforceability, invalidity, or illegality will not otherwise affect the enforceability, validity or legality of the remaining terms of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the deletion of such portion of this Agreement will not substantially impair the respective expectations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties.
(i) No Agency. Notwithstanding anything that may be construed to the contrary, it is understood and agreed that the Securities Intermediary is not, nor shall it be considered to be, an agent, of the Secured Party. In addition, the Securities Intermediary shall not act or represent itself, directly or by implication, as an agent of the Secured Party or in any manner assume or create any obligation whatsoever on behalf of, or in the name of, the Secured Party.
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(j) Payments by Xxxxxxx. Except as otherwise provided in the Collateral Custodian Fee Letter, any amounts required to be paid pursuant to this Agreement by the Pledgor shall be paid or caused to be paid by the Pledgor to the applicable Person on the Payment Date following such Person’s demand therefor in accordance with Section 2.7 or 2.8, as applicable, of the Loan Agreement; provided that such demand is made no later than two Business Days prior to the applicable Payment Date. The Securities Intermediary acknowledges that all such amounts, including any amounts payable pursuant to Sections 4(i) and 5(a) and (b) herein, shall be payable solely from available funds in accordance with Section 2.7 or Section 2.8 of the Loan Agreement. In the event that the Pledgor fails to pay any amount on the date when due under this Agreement solely by reason of the limitation on the payment of such amounts set forth in the Loan Agreement or because sufficient funds are not then available to pay such amounts in accordance with Section 2.7 or Section 2.8 of the Loan Agreement, the Pledgor shall not be deemed to have failed to pay such amount (and a default shall not be deemed to have occurred hereunder as the result thereof) and the Securities Intermediary will continue to serve in such capacity hereunder.
(k) Taxes. For all U.S. federal income tax reporting purposes, all income earned on the funds invested and allocable to the Secured Accounts is legally owned by the Pledgor (and beneficially owned by such Pledgor or owners of such entity as documented in the IRS forms and other documentation described below). The Pledgor has provided to U.S. Bank National Association, in its capacity as Securities Intermediary, an IRS Form W-9 (of the Pledgor or its sole regarded owner) no later than the date hereof, and will provide any additional IRS forms (or updated versions of any previously submitted IRS forms) or other documentation at such time or times required by applicable Law or upon the reasonable request of the Securities Intermediary as may be necessary (i) to reduce or eliminate the imposition of U.S. withholding taxes and (ii) to permit the Securities Intermediary to fulfill its tax reporting obligations under applicable Law with respect to the Secured Accounts or any amounts paid to the Pledgor. The Pledgor is further required to report to the Securities Intermediary comparable information upon any change in the legal or beneficial ownership of the income allocable to the Secured Accounts.
NOTICES
Section 11. (a) Effectiveness. Any notice or other communication in respect of this Agreement may be given in any manner set forth in Section 12.1(c) of the Loan Agreement.
(b) Change of Addresses. Any party hereto may by written notice to each other party hereto, change the address at which notices or other communications are to be given to it hereunder.
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GOVERNING LAW AND JURISDICTION
Section 12. (a) Governing Law. This Agreement, each Secured Account and any matter arising among the parties under or in connection with this Agreement or any Secured Account, will be governed by and construed in accordance with the laws of the State of New York. Each of the parties hereto hereby agrees (i) that the law of the state of New York is applicable to all issues specified in Article 2(1) of the Hague “Convention on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary (Concluded 5 July 2006)”, (ii) that each of the Account Documents is hereby amended to include clause (i), and (iii) not to modify the law applicable to such issues hereunder, or (so long as this Agreement is in effect) under such Account Documents, without the prior written consent of each party hereto.
(b) Jurisdiction. With respect to any suit, action or proceeding relating to this Agreement or any matter among the parties arising under or in connection with this Agreement (“Proceedings”), each party irrevocably: (i) submits to the non-exclusive jurisdiction of the courts of the State of New York and the United States District Court located in the Borough of Manhattan in New York City and (ii) waives any objection which it may have at any time to the laying of venue of any Proceedings brought in any such court, waives any claim that such Proceedings have been brought in an inconvenient forum and further waives the right to object, with respect to such Proceedings, that such court does not have any jurisdiction over such party. Nothing in this Agreement precludes any party from bringing Proceedings in any other jurisdiction, nor will the bringing of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction.
(c) Service of Process. The Pledgor irrevocably consents to service of process given in the manner provided for notices in Section 11. Nothing in this Agreement will affect the right of any party to serve process in any other manner permitted by law.
(d) Waiver of Jury Trial Right. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING. Each party hereby (i) certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that any other party would not, in the event of a Proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this subsection (d).
DEFINITIONS
Section 13. As used in this Agreement:
“Agreement” has the meaning set forth in the introductory paragraph hereto.
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“Collateral Account” has the meaning set forth in Section 3(a).
“Collateral Custodian” has the meaning set forth in the introductory paragraph hereto.
“Collection Account” has the meaning set forth in Section 3(a).
“Consent” includes a consent, approval, action, authorization, exemption, notice, filing, registration or exchange control consent.
“Law” includes any treaty, law, rule or regulation (as modified, in the case of tax matters, by the practice of any relevant governmental revenue authority) and “lawful” and “unlawful” will be construed accordingly.
“Loan Agreement” has the meaning set forth in Section 1(a).
“Notice of Exclusive Control” means a notice delivered to and received by the Securities Intermediary by the Secured Party in accordance with Section 11(a) stating that the Secured Party is exercising exclusive control over the Secured Accounts.
“Person” means any natural person or legal entity, including without limitation any corporation, partnership, limited liability company, statutory or common law trust, or governmental entity or unit.
“Pledgor” has the meaning set forth in the introductory paragraph hereto.
“Proceedings” has the meaning set forth in Section 12(b).
“Responsible Officer” means any officer within the corporate trust office of the Securities Intermediary having direct responsibility for the administration of this Agreement or to whom any matter is referred because of his or her knowledge of and familiarity with the particular subject who is authorized to act for the Securities Intermediary in matters relating to, and binding upon, the Securities Intermediary.
“Secured Accounts” has the meaning set forth in Section 3(a).
“Secured Party” has the meaning set forth in the introductory paragraph hereto.
“Securities Intermediary” has the meaning set forth in the introductory paragraph hereto.
“Securities Intermediary Indemnity” has the meaning set forth in Section 5(a)(i).
“Securities Intermediary Parties” has the meaning set forth in Section 5(a).
“Transfer Order” has the meaning set forth in Section 3(h)(i).
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“UCC” means the Uniform Commercial Code as in effect in the State of New York.
“Unfunded Exposure Account” has the meaning set forth in Section 3(a).
LIMITED RECOURSE; NO BANKRUPTCY PETITION
Section 14. Notwithstanding any other provision hereof, the obligations of the Pledgor arising from time to time and at any time under this Agreement are limited in recourse to the Collateral. To the extent the Collateral is not sufficient to meet the obligations of the Pledgor in full, after the application of the Collateral in accordance with the provisions of the Loan Agreement, the Pledgor shall have no further obligations hereunder and all obligations of and remaining claims against the Pledgor shall be extinguished and shall not thereafter revive. The obligations of the Pledgor are solely corporate obligations of the Pledgor and no action shall be taken against the directors, officers, employees, shareholders or incorporator of the Pledgor in connection with such obligations. The parties hereto agree that they shall not institute against, or join any other Person in instituting against the Pledgor, any bankruptcy, reorganization, arrangement, insolvency, winding-up, moratorium or liquidation proceedings or other proceedings under U.S. federal or state bankruptcy laws or any similar laws until at least the later to occur of one year (or, if longer, the applicable preference period then in effect) and one day after (i) the payment in full of all Obligations due and payable and (ii) if an Approved Securitization has taken place, payment in full of any notes issued pursuant to such Approved Securitization. This Section 14 shall survive the expiration or termination of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above with effect from such date.
| Pledgor: | ||
| XXXXX XX XX XX LLC, | ||
| as Pledgor | ||
| By: |
| |
| Name: | ||
| Title: | ||
Securities Account Control Agreement
| Secured Party: | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, | ||
| as Secured Party | ||
| By: |
| |
| Name: | ||
| Title: | ||
| Securities Intermediary: | ||
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as Securities Intermediary | ||
| By: |
| |
| Name: | ||
| Title | ||
