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PLEDGE AGREEMENT, 질권설정 계약서, 영문계약서 본문
PLEDGE AGREEMENT
made by and between
[AAA CORPORATION]
as Pledgor,
and
[BBB BANK]
not in its individual capacity
but solely as Trustee
dated as of [·], 20[·]
TABLE OF CONTENTS
Section Page
1. DEFINITIONS; INTERPRETATION 2
1.1 Terms Defined in Common Agreement. 2
1.2 Rules of Interpretation. 2
1.3 Certain Defined Terms. 2
1.4 Terms Defined in UCC. 3
2. PLEDGE AND ASSIGNMENT FOR SECURITY 3
2.1 Notes. 4
2.2 Proceeds. 4
3. DELIVERY OR TRANSFER OF PLEDGED COLLATERAL 5
3.1 Initial Delivery. 5
3.2 Pledge Agreement Supplement. 5
3.3 Permitted Transfer of Pledged Notes. 5
4. REPRESENTATIONS AND WARRANTIES 6
4.1 Representatives and Warranties. 6
4.2 Restatement. 13
5. COVENANTS 13
5.1 Reporting Obligations. 13
5.2 Defend Against Claims. 14
5.3 Maintenance of Existence. 14
5.4 Government Approvals. 14
5.5 Compliance with Laws. 14
5.6 Taxes. 14
5.7 Delivery of Reports. 15
5.8 Place of Business; Records. 15
5.9 No Other Grant; No Change in Rights. 16
5.10 Bar to Bankruptcy Action. 16
5.11 Senior Loans. 16
5.12 Cooperation. 16
5.13 Dissolution; Insolvency Proceedings. 16
5.14 Powers of Attorney. 17
5.15 Limitation on Transfers. 17
5.16 Proceedings. 18
5.17 No Adverse Control. 18
5.18 Payments Under Pledge Agreement. 18
5.19 Utility Regulation. 18
5.20 Investment Company Act. 19
5.21 Shareholder Advances. 19
6. FURTHER ASSURANCES 19
6.1 Generally. 19
6.2 Regarding Security Interests. 20
7. POWER OF ATTORNEY 20
7.1 Powers. 20
8. LIMITS OF RESPONSIBILITY 22
9. REMEDIES 23
9.1 General Enforcement. 23
9.2
9.3 Costs of Remedies. 24
9.4 Assembly of Pledged Collateral. 24
9.5 Take Possession of Pledged Collateral. 24
9.6 Administration of Pledged Collateral. 24
9.7 Exercise Rights of the Pledgor. 24
9.8 Claim Benefits of Pledged Collateral. 25
9.9 Notice to Borrower. 25
9.10 Initiate Proceedings to Protect the Pledged Collateral. 25
9.11 Execute Deeds of Conveyance. 25
9.12 Receivables. 25
9.13 Application of Cash. 25
9.14 Delivery to and Rights of Purchaser. 26
9.15 Manner of
9.16 Further Assurances. 27
9.17 Remedies in General. 27
10.
11. WAIVER OF CLAIMS; ETC. 28
11.1 Discontinuance of Proceedings. 28
11.2 Waiver. 28
11.3 Divestiture. 29
12. CONTINUING OBLIGATIONS AND WAIVERS 29
12.1 Enforceability of Transaction Documents. 29
12.2 Independent Obligations. 29
12.3 Certain Waivers. 30
12.4 Additional Waivers. 30
12.5 Right to Amend Obligations. 32
12.6 Enforcement. 33
12.7 Subrogation. 33
12.8 Relevant Facts. 34
13. MISCELLANEOUS 34
13.1 Payment of Expenses, Etc. 34
13.2 Notices. 35
13.3 No Waiver; Remedies Cumulative. 35
13.4 Severability. 36
13.5 No Amendments. 36
13.6 Judgment Currency. 36
13.7 English Language. 37
13.8 Entire Agreement. 37
13.9 Waiver of Sovereign Immunity. 38
13.10 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial. 38
13.11 No Third Party Beneficiaries. 39
13.12 Assignments. 40
13.13 Special Exculpation. 40
13.14 Reinstatement. 40
13.15 Authority of the Trustee. 41
13.16 Continuing Security Interest; Termination. 41
13.17 Limitation of Recourse. 41
SCHEDULES
SCHEDULE 1 PLEDGED NOTES 43
SCHEDULE 2 FORM OF [AAA Corporation] PLEDGE AGREEMENT SUPPLEMENT 44
SCHEDULE 3 UCC FILING LOCATIONS; OTHER FILINGS, REGISTRATIONS, ETC.; OFFICE LOCATIONS FOR PLEDGOR; NAMES HELD IN THE LAST FIVE YEARS 45
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this “Agreement”), dated as of [•], 20[•], is made by and between [AAA Corporation], a corporation organized under the laws of [Name of the Country] (the “Pledgor”), and [BBB BANK], a national banking association, not in its individual capacity but solely as the trustee for the Secured Parties under the Common Agreement referred to below (the “Trustee”).
RECITALS
A. [CCC Corporation] (the “Borrower”), the Senior Lenders, the Hedge Banks and the Agents have entered into that certain Common Agreement dated as of [•], 20[•] (the “Common Agreement”), which constitutes Volume 2 of the Omnibus Agreement dated as of [•], 20[•], among the Borrower, Co-Financing Lenders, Lenders and the Agents, Hedge Banks, Sponsors, Shareholders and other Persons party thereto, providing, subject to the terms and conditions thereof, for extensions of credit to the Borrower.
B. As provided in the Common Agreement, the Senior Lenders have agreed to make such extensions of credit available to the Borrower for the purpose of designing, constructing, furnishing, installing, testing, commissioning, owning, operating and maintaining a [•] MW natural gas fired combined cycle generating plant with diesel fuel fire capability to be located at [Name of the City], [Name of the Country].
C. The Pledgor owns directly or indirectly [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [DDD] which owns at least [•] percent ([•]%) of the issued and outstanding voting Capital Stock of the Borrower (which percentage includes the Directors’ Shares), and will benefit from the making of the Disbursements to the Borrower pursuant to the Common Agreement.
D. In order to induce the Secured Parties to enter into, and as a condition precedent to the Initial Disbursement to the Borrower under, the Financing Documents, the Pledgor has agreed to pledge and grant a security interest in the Pledged Collateral (as defined below) to the Trustee, for the ratable benefit of the Secured Parties, to secure the Secured Obligations (as defined below).
ACCORDINGLY, the parties hereto hereby agree as follows:
1. DEFINITIONS; INTERPRETATION
1.1 Terms Defined in Common Agreement.
All capitalized terms used and not otherwise defined herein shall have the meanings assigned to those terms in the Common Agreement.
1.2 Rules of Interpretation.
Except as otherwise expressly provided herein, the rules of interpretation set forth in Exhibit B to the Common Agreement shall apply mutatis mutandis to this Agreement.
1.3 Certain Defined Terms.
As used in this Agreement, the following terms have the following meanings:
“Affiliate Shareholder” means [DDD] and/or any other Subsidiary of the Pledgor that is or becomes a Shareholder in accordance with Section 9.1.17 of the Common Agreement.
“Directors’ Shares” has the meaning set forth in the [DDD] Pledge Agreement.
“Judgment Currency” has the meaning set forth in Section
“Judgment Currency Conversion Date” has the meaning set forth in Section
“Obligation Currency” has the meaning set forth in Section
“Obligations of the Borrower” means the “Obligations,” as defined in the Common Agreement.
“Pledge Agreement Supplement” has the meaning set forth in Section 3.2.
“Pledged Collateral” has the meaning set forth in Section 2.
“Pledged Notes” means all notes referred to in Section 2.1.
“Pledgor’s Shareholder Percentage” means 100%.
“Secured Obligations” means, collectively, the Obligations of the Borrower, together with all obligations of the Pledgor to the Trustee and the other Secured Parties under this Agreement.
“Transfer” means to convey, sell, assign, lease (as lessor), transfer, pledge or otherwise dispose of.
“Transfer Conditions” means, with respect to any Transfer of any direct or indirect equity interest in a Shareholder, each of the following conditions:
(i) such Transfer would comply with the requirements of the Proponent’s Agreement;
(ii) no Default or Event of Default would result from such Transfer;
(iii) no violation of any Applicable Law would result from such Transfer;
(iv) the Borrower would not forfeit any of its material rights under any Project Document as a result of such Transfer;
(v) the Borrower would not become an ERISA Affiliate of any Person as the result of such Transfer;
(vi) together with such Transfer, the transferor shall also transfer to such proposed transferee a pro rata portion (based on the portion of its direct or indirect equity interest Transferred) of its rights with respect to Subordinated Loans and such proposed transferee shall have delivered to the Administrative Agent (a) a duly executed pledge and security agreement in substantially similar form as this Agreement, and (b) an opinion of counsel in respect thereof (which counsel is acceptable to the Administrative Agent), each in form and substance satisfactory to the Administrative Agent; and
(vii) if the transferor remains obligated to make Equity Contributions or has other financial obligations under the Funding and Support Agreement to which it is a party, and if so required by the Administrative Agent, the proposed transferee shall have delivered to the Administrative Agent (a) a duly executed funding and support agreement, in substantially similar form as the Funding and Support Agreement to which the transferor is a party, pursuant to which the proposed transferee shall have assumed a pro rata portion (based on the portion of the transferor’s direct or indirect interest so Transferred) of the transferor’s obligations under such Funding and Support Agreement, and (b) an opinion of counsel in respect of such funding and support agreement (which counsel is acceptable to the Administrative Agent), each in form and substance satisfactory to the Administrative Agent.
“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in [Name of the State].
1.4 Terms Defined in UCC.
Except as otherwise defined herein and unless the context otherwise requires, terms used in this Agreement shall have the meanings assigned to them in the UCC.
2. PLEDGE AND ASSIGNMENT FOR SECURITY
As collateral security for the payment in full in cash when due, whether at stated maturity, by acceleration or otherwise, and performance in full when due, of the Secured Obligations, the Pledgor hereby pledges, assigns, conveys, transfers, hypothecates, mortgages, charges, and sets over to the Trustee for the ratable benefit of the Secured Parties, and grants to the Trustee for the ratable benefit of the Secured Parties a continuing security interest of first priority, in all of the Pledgor’s right, title and interest in, to and under the following, whether now existing or owned or hereafter acquired or arising (collectively, the “Pledged Collateral”):
2.1 Notes.
All rights to receive any principal of, or interest on, and all other rights with respect to any loans made or deemed to be made by the Pledgor to the Borrower and all notes executed by the Borrower in favor of the Pledgor in connection therewith, as more fully described in Schedule 1, together with all rights of the Pledgor under any instruments, agreements or other writings executed in connection with such loans and notes; provided, that upon the Borrower’s payment of any amounts under or in respect of such notes, instruments or agreements to the Pledgor, or any Person designated by the Pledgor in writing to the Trustee, in accordance with the terms of Sections 8.4 and 8.13 of the Common Agreement and Section 10.2 of the Trust Agreement (and subject to the Terms of Subordination attached as Schedule 5.3 to the [AAA Corporation] Funding and Support Agreement), such amounts shall be released from the Lien created by this Agreement and shall no longer constitute Pledged Collateral.
2.2 Proceeds.
All cash and non-cash proceeds of any and all of the foregoing items of Pledged Collateral, including (and whether or not included in the definition of “proceeds” in the UCC) (a) all payments made or payable to the Pledgor, all rights and benefits accruing to the Pledgor and any moveable or immoveable assets given as compensation to the Pledgor in connection with (i) any requisition, expropriation, confiscation, condemnation, seizure, taking, forfeiture, or any similar action with respect to all or any part of the Pledged Collateral by any Government Authority and (ii) any cancellation, rescission or declaration as null and void of any document constituting part of the Pledged Collateral, and (b) any and all other amounts from time to time paid or payable under or in connection with any of the Pledged Collateral; provided, that upon the Borrower’s payment of any amounts under or in respect of such cash and non-cash proceeds to the Pledgor, or any Person designated by the Pledgor in writing to the Trustee, in accordance with the terms of Section 8.4 and Section 8.13 of the Common Agreement and Section 10.2 of the Trust Agreement (and subject to the Terms of Subordination attached as Schedule 5.3 to the [AAA Corporation] Funding and Support Agreement), such amounts shall be released from the Lien created by this Agreement and shall no longer constitute Pledged Collateral.
The provisions of Sections
3. DELIVERY OR TRANSFER OF PLEDGED COLLATERAL
3.1 Initial Delivery.
The Pledgor shall deliver or cause to be delivered all original certificates, instruments or other writings representing or evidencing Pledged Notes with respect to which the Pledgor has any right, title or interest to the Trustee in [Name of the City] no later than [•] Business Days prior to the Initial Disbursement Date (or, with respect to any Pledged Notes acquired after that date, as soon as possible and no later than [•] Business Days after acquiring such Pledged Notes), which certificates, instruments or writings shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed endorsements, allonges, instruments of transfer, as applicable, or assignment in blank, in form and substance satisfactory to the Trustee.
3.2 Pledge Agreement Supplement.
Upon acquiring any Pledged Notes hereafter, the Pledgor shall (as soon as possible but no later than ten (10) Business Days after its acquisition thereof) (a) deliver to the Trustee a duly executed Pledge Agreement Supplement in substantially the form of Schedule 2 (a “Pledge Agreement Supplement”) describing such additional Pledged Notes and (b) comply with the requirements of Section 3.1 with respect to such additional Pledged Notes. The Pledgor hereby (i) authorizes the Trustee to attach each Pledge Agreement Supplement to this Agreement, (ii) agrees that each Pledge Agreement Supplement shall be deemed a part of this Agreement and that all notes listed thereon shall for all purposes under this Agreement constitute Pledged Collateral and (iii) agrees to take, and authorizes the Trustee to take, such further action as may be necessary or that the Trustee may deem reasonably advisable in order to establish and perfect the security interest granted under this Agreement and the Pledge Agreement Supplement with respect to such Pledged Collateral.
3.3 Permitted Transfer of Pledged Notes.
If the Pledgor desires to make a Transfer of any Pledged Note issued in respect of any [AAA Corporation] Replacement Loan or Cost Overruns Contribution made by [AAA Corporation], [DDD] or [EEE] and where such Transfer is permitted by the Financing Documents, then the Lien of the Trustee in respect of such Pledged Note created by the transferor thereof shall be released at the time of the consummation of such Transfer, provided that prior to such release, the transferee of such Pledged Note has taken or caused to be taken all actions necessary to create at the time of the consummation of such Transfer, to the satisfaction of the Trustee, a first priority perfected security interest in and Lien on such Pledged Note in favor of the Trustee. Upon consummation of such Transfer and creation of such Lien, such Pledged Note shall no longer constitute Pledged Collateral hereunder, unless and until such time such Pledged Note is re-Transferred to the Pledgor.
4. REPRESENTATIONS AND WARRANTIES
4.1 Representatives and Warranties.
The Pledgor makes all of the following representations and warranties to and in favor of the Trustee and each other Secured Party as of the date hereof, as of the date of each Disbursement, as of the Completion Date and as of any other date that the representations and warranties are required to be made or deemed made pursuant to this Agreement or any other Financing Document (except for representations which relate only to an earlier date or to a later or specified date), and all of these representations and warranties shall survive the execution and delivery of this Agreement:
4.1.1 Organization, Power and Status. The Pledgor is a corporation duly organized and validly existing under the laws of [Name of the Country].
4.1.2 Power and Authority. The Pledgor (a) has the requisite power and authority to (i) execute, deliver and perform each Transaction Document to which it is a party in accordance with its terms, (ii) own and operate the Property it purports to own, (iii) carry on its business as now being conducted and as proposed to be conducted, (iv) lease, possess or otherwise use the Property leased, possessed or otherwise used by it, (v) incur Indebtedness and create Liens on its Property and (vi) do all other things necessary or appropriate in respect of the transactions contemplated by each Transaction Document to which it is a party, and (b) is duly qualified to do business in all jurisdictions where qualification is necessary for any of the foregoing.
4.1.3 Due Authorization, Execution and Delivery. All action on the part of the Pledgor that is required for the corporate authorization, execution, delivery and performance by it of each Transaction Document to which it is a party has been duly and effectively taken. The obligations of the Pledgor under each Transaction Document to which it is a party are the legal, valid and binding obligations of the Pledgor enforceable in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights of creditors generally and by general principles of equity (regardless of whether enforcement thereof is sought in a proceeding at law or in equity).
4.1.4 No Violation or Conflict. None of the execution, delivery or performance of any Transaction Document to which the Pledgor is a party, or the consummation of any of the transactions contemplated thereby, or performance of or compliance with the terms and conditions thereof (a) requires the approval or consent of any counter party or holder or trustee of any debt or other obligation of the Pledgor that has not been obtained except where the failure to obtain such approval could not reasonably be expected to have a Material Adverse Effect, (b) constitutes a material default by the Pledgor under, or results in the material violation, of any Transaction Document, or any other material contract, agreement or arrangement to which the Pledgor is a party or by which it or any of its property or assets may be bound or affected, (c) violates the material terms of any Applicable Law applicable to the Pledgor, the Project or the Pledged Collateral, (d) constitutes a default under or results in the violation of any provision of the Pledgor’s Charter Documents or (e) results in the creation or imposition of any Lien (other than Permitted Liens) on any of the Pledgor’s Property or the Collateral (other than the Liens on the Pledged Collateral created pursuant hereto).
4.1.5 Government Approvals.
(a) Effectiveness. All Project Approvals that are required to be obtained by the Pledgor under the Financing Documents are set forth in Part 5 of Schedule 6.8.1 to the Common Agreement and Part 5 of Schedule 6.8.5 to the Common Agreement. All Project Approvals set forth in Part 5 of Schedule 6.8.1 to the Common Agreement as of the date hereof are all of the Project Approvals that are required under Financing Documents to be obtained by the Pledgor as of the Initial Disbursement Date. As of the Initial Disbursement Date and each subsequent date that this representation is made, all of the Project Approvals set forth in Schedule 6.8.1 to the Common Agreement (as updated by the Borrower in accordance with Section 4.2.8 of the Common Agreement or otherwise by delivery of an updated Schedule to the Administrative Agent) are all of the Project Approvals that are required under the Financing Documents to be obtained by the Pledgor as of such date, have been duly and validly issued, are in full force and effect and are Non-Appealable.
(b) Government Approvals Not yet Obtained. The Project Approvals set forth in Part 5 of Schedule 6.8.5 to the Common Agreement are not required under Applicable Law to be obtained until after the Initial Disbursement Date. The Pledgor does not have any reason to believe that it will be unable to obtain each of the Project Approvals set forth in Part 5 of such Schedule 6.8.5 to the Common Agreement in the ordinary course of business when required under Applicable Law.
(c) Compliance. The Pledgor is in material compliance with all Project Approvals that are required to be obtained by or are otherwise applicable to it.
4.1.6 No Proceedings. There are no actions, suits or proceedings, claims or investigations at law or in equity by or before any Government Authority, arbitral tribunal or other body pending or, to the best of the Pledgor’s knowledge, threatened against or affecting the Pledgor or its Property or challenging, or that are likely to affect, the validity or enforceability of any Transaction Document to which the Pledgor is a party, other than actions, suits or proceedings that (if adversely determined) could not reasonably be expected to have a Material Adverse Effect.
4.1.7 No Defaults Under Court Orders. The Pledgor is not in default under any order of any court, arbitrator, administrative agency or other Government Authority, other than defaults that could not reasonably be expected to have a Material Adverse Effect.
4.1.8 Defaults. No Default or Event of Default relating to the Pledgor, and to the best of the Pledgor’s knowledge, no other Default or Event of Default, has occurred and is continuing. The Pledgor is not in material default under any Transaction Document to which it is a party.
4.1.9 Financial Statements. Each of the financial statements of the Pledgor delivered to the Secured Parties is true, complete and correct in all material respects as of the date of such statement, has been prepared in accordance with Applicable Accounting Principles and fairly presents the financial condition, results of operations and cash flows of the Pledgor as of the date thereof. Except as set forth in such financial statements or disclosed to each of the Senior Lenders in writing, there are no liabilities or obligations of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due, but not including any liabilities or obligations that would not be required to be disclosed in a financial statement, including the footnotes thereto, pursuant to Applicable Accounting Principles for the period to which such financial statements relate) which either individually or in the aggregate could reasonably be expected to be material to the Pledgor or could reasonably be expected to have a Material Adverse Effect. Since the date of the Pledgor’s most recent financial statement delivered to the Secured Parties, no event, condition, occurrence or circumstance has existed or exists which constitutes a Material Adverse Effect. The Pledgor does not know of any reasonable basis for the assertion against the Pledgor or the Pledged Collateral of any liability or obligation of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether or not due) that is not fully reflected in such financial statements which, either individually or in the aggregate, could reasonably be expected to be material to the Pledgor.
4.1.10 Compliance with Laws. The Pledgor is in compliance in all material respects with all Applicable Laws relating to its participation in the Project or the performance of its obligations under the Transaction Documents to which it is a party.
4.1.11 Good Title. The Pledgor is the sole owner of and has good, legal and beneficial, and marketable title to the Pledged Notes described in Schedule 1. Except for the Lien granted to the Trustee for the benefit of the Secured Parties pursuant to this Agreement, there are no Liens on, or agreements to secure any obligation by any Lien on, and no other Person has any right, title, claim or interest in, against or to, such Pledged Notes or the other Pledged Collateral.
4.1.12 Security Interest. This Agreement creates in favor of the Trustee, for the ratable benefit of the Secured Parties, a legal, valid and enforceable, and upon the delivery of the Pledged Notes to the Trustee in [Name of the City], the filing of financing statements in the jurisdictions identified in Schedule 3 and the other filings, registrations, recordings, consents, approvals, notices, acknowledgments and other actions described in Schedule 3, first-priority perfected security interest in the Pledged Collateral, securing the payment and performance of the Secured Obligations. Other than the filing of financing statements in the jurisdictions identified in Schedule 3 and the other filings, registrations, recordings, consents, approvals, notices, acknowledgments and other actions described in Schedule 3, no filings, recordings, consents, approvals, notices, acknowledgments or other actions by or with any Government Authority or other Person are necessary (a) for the execution, delivery and performance by the Pledgor of this Agreement, (b) for the validity and enforceability of this Agreement, (c) in order to perfect, protect and preserve the security interest (and the priority thereof) of the Trustee for the ratable benefit of the Secured Parties in the Pledged Collateral created or intended to be created by this Agreement or (d) for the exercise by the Trustee or any other Secured Party of the rights, powers, remedies and privileges granted pursuant to this Agreement with respect to the Pledged Collateral. No mortgage or financing statement or other instrument of record covering all or any part of the Pledged Collateral has been filed or registered in any recording office, except such as may have been filed in favor of the relevant Trustee or the Secured Parties.
4.1.13 Percentage Ownership; No Other Outstanding Rights. Except as otherwise permitted under Section 5.15, the Pledgor owns, directly or indirectly, the Pledgor’s Shareholder Percentage of the issued and outstanding shares of Capital Stock of the Affiliate Shareholder. There are no outstanding options, warrants, conversion or exchange privileges, preemptive rights, rights of first refusal or other rights with respect to, or to purchase or obtain, any of the Capital Stock of the Affiliate Shareholder other than those solely owned (directly or indirectly) by the Pledgor. As of the Initial Disbursement Date and on each date thereafter that this representation is made or deemed made, the Pledgor owns indirectly at least 51% of each of (a) the issued and outstanding voting Capital Stock of the Borrower and (b) the issued and outstanding Series A Preferred Shares. Except as otherwise permitted under Section 5.15, the Pledgor indirectly owns [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [EEE]. There are no outstanding options, warrants, conversion or exchange privileges, preemptive rights, rights of first refusal or other rights with respect to, or to purchase or obtain, any of the Capital Stock of [EEE] other than those solely owned (directly or indirectly) by the Pledgor.
4.1.14 Transferability. There are and will be no restrictions on the transferability by the Trustee of any Pledged Collateral transferred or delivered by the Pledgor hereunder to the Trustee or with respect to the foreclosure, transfer or disposition thereof by the Trustee, whether through contractual restrictions, restrictions in the Borrower’s Charter Documents, or otherwise, other than (a) any such restriction contained herein or in the Financing Documents or (b) as a result of the application of Applicable Law affecting the foreclosure and exercise of rights and remedies hereunder.
4.1.15 Delivery. As of the Initial Disbursement Date, and each date thereafter on which this representation is made or deemed made, the Pledgor has complied with the requirements of Section 3.1 and Section 3.2 with respect to all Pledged Notes owned by the Pledgor.
4.1.16 Place of Business. The place(s) of business and chief executive office of the Pledgor and the office(s) where the Pledgor keeps its records concerning the Pledged Collateral are located at the addresses set forth on Schedule 3, or such other addresses set forth in the most recent notice delivered to the Trustee pursuant to Section 5.8. The Pledgor has no trade name other than [AAA Corporation]. The Pledgor does not maintain any executive offices in the
4.1.17 Borrower’s Financial Status. The Pledged Collateral is pledged at the Borrower’s request; the Pledgor has established adequate means of obtaining from the Borrower on a continuing basis financial and other information pertaining to the Borrower’s financial condition and other circumstances bearing upon repayment of the Obligations of the Borrower; and neither the Trustee nor any other Secured Party has made any representation to the Pledgor as to the financial condition or creditworthiness of the Borrower or such circumstances.
4.1.18 Legal Form. Each of the Transaction Documents to which the Pledgor is a party is in proper legal form under the Applicable Laws of the jurisdiction of the incorporation of the Pledgor and (if different) of the jurisdiction by which it is governed, and is capable of enforcement in the jurisdiction of the incorporation of the Pledgor and such other jurisdiction (if applicable).
4.1.19 Taxes; Fees and Duties.
(a) All required stamp duties, registration fees, filing costs and other charges, due and payable as of the date this representation and warranty is given, in connection with the execution, delivery, filing, recording, perfection, priority and admissibility in evidence of any Transaction Document to which the Pledgor is party (and the Liens purported to be granted thereby) have been paid in full or an appropriate exemption therefrom has been obtained.
(b) Other than amounts that have been paid in full or will be paid in full on the Initial Disbursement Date or as otherwise disclosed in writing to and waived by the Administrative Agent, no fees or Taxes are required to be paid in connection with the execution, delivery, filing, recording, perfection, priority and/or validity, enforceability, perfection or admissibility in evidence of the Transaction Documents to which the Pledgor is a party.
4.1.20 Immunity. The Pledgor and its Property have no, and the Pledgor is not entitled to claim or assert any, right of immunity on the grounds of sovereignty or otherwise from jurisdiction of any court, suit, set-off, legal proceedings generally, attachment before judgment, attachment in aid of execution or other attachment or execution of judgment under the Applicable Laws of, or in any action to enforce this Agreement or any other Transaction Document taken in, [Name of the Country], [Name of the Country], [Name of the Country] or any other jurisdiction in which the Pledgor’s Property is located. The execution, delivery and performance by the Pledgor of each Transaction Document to which it is a party are private and commercial acts performed for private and commercial purposes.
4.1.21 Utility Regulation. The Pledgor is not subject to regulation by any Government Authority of [Name of the Country] as (a) a “public utility,” a “public-utility company,” an “electric utility,” an “electric utility company,” or a “holding company,” (as such quoted terms are defined in [FFF] or the Federal Power Act) or as a Subsidiary or Affiliate of any of the foregoing or (b) as a “subsidiary company” or an “affiliate” of a “holding company” or an “affiliate” of a “subsidiary company” of a “holding company” under (and as such quoted terms are defined in) [FFF]. None of the Secured Parties, by reason of its exercise of remedies under the Security Documents to which the Pledgor or any of its Affiliates or Subsidiaries is a party, will be subject to regulation by any Government Authority of [Name of the Country] as (i) a “public utility,” a “public-utility company” an “electric utility,” an “electric utility company,” or a “holding company” (as such terms are defined in [FFF] or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing or (ii) a “subsidiary company” or “affiliate” of a “holding company” under (and as such quoted terms are defined in) [FFF].
4.1.22 No Bankruptcy. No steps have been taken or legal proceedings started by or against the Pledgor, and to the best of its knowledge no such action has been threatened against it, for its winding-up, dissolution or reorganization or for the appointment of a receiver, trustee or similar officer with respect to the Pledgor or any of its Property.
4.1.23 Foreign Corrupt Practices Act; Unfair Competition Prevention Law. Neither the Pledgor, nor any of its officers, directors, employees, agents or Affiliates, acting on its behalf, has taken any action in connection with the Project that violates the Anti�graft Law of [Name of the Country], the Act on Prohibition of Bribery of Foreign Public Officials in International Business Transactions of [Name of the Country], or, if applicable, the Foreign Corrupt Practices Act of the United States of America, the Unfair Competition Prevention Law of Japan, or any similar law of any other jurisdiction.
4.1.24 Investment Company Act. The Pledgor has not taken any action that could result in the Borrower falling within the definition of, and the Pledgor is not, an “investment company” or a company “controlled” by an “investment company” within the meaning of the United States Investment Company Act of 1940, as amended.
4.2 Restatement.
Each of the representations and warranties set forth in Section 4.1 shall be deemed restated automatically with respect to any additional Pledged Collateral at each such time as any additional Pledged Collateral is acquired by the Pledgor or delivered under this Agreement to the Trustee.
5. COVENANTS
In addition to the covenants of the Pledgor set forth in the other Financing Documents, which are incorporated herein by this reference, and elsewhere in this Agreement, the Pledgor covenants and agrees with the Trustee for the benefit of the Secured Parties that until all Secured Obligations have been indefeasibly paid, performed and discharged in full and all Commitments have been terminated:
5.1 Reporting Obligations.
The Pledgor shall deliver to the Administrative Agent:
5.1.1 to the extent not otherwise delivered pursuant to Section 7.1.2 of the Common Agreement, and if requested by the Administrative Agent to be delivered by the Pledgor, those financial statements, reports and certifications required to be delivered by or in respect of the Pledgor pursuant to Section 7.1.2 of the Common Agreement;
5.1.2 promptly after the Pledgor knows or has reason to believe that any Default or Event of Default has occurred, a notice of such event describing the same in reasonable detail;
5.1.3 promptly after the Pledgor knows that any event, circumstance or condition which could result in a Material Adverse Effect has occurred, notice of such event, circumstance or condition; and
5.1.4 from time to time, with reasonable promptness, such other information regarding the financial condition, operations or business of the Pledgor as the Trustee or the Administrative Agent may reasonably request (but only to the extent reasonably necessary to evaluate the Pledgor’s ability to perform its obligations under the Transaction Documents to which it is a party).
5.2 Defend Against Claims.
The Pledgor shall, at its expense, defend the Trustee’s and the Secured Parties’ interest in and to the Pledged Collateral against the claims and demands of all other Persons, and it shall appear in and defend any action, suit or proceeding which may affect its title to the Pledged Collateral or the Trustee’s and the Secured Parties’ interest in the Pledged Collateral.
5.3 Maintenance of Existence.
The Pledgor shall at all times preserve and maintain (a) its legal existence under Applicable Laws of the jurisdiction of its incorporation, and (b) in full force and effect its qualifications to do business in each jurisdiction in which the character of the Property owned or leased by it or in which the transaction of its business as conducted or proposed to be conducted makes such qualification necessary.
5.4 Government Approvals.
The Pledgor shall obtain and at all times maintain, or cause to be obtained and maintained, in full force and effect and, where applicable, renew or cause to be renewed all Project Approvals and other Government Approvals (if any) required to be maintained by it at the relevant time in connection with, and which are material to, the Project or necessary for the Pledgor to maintain its legal existence. Without limiting the foregoing, the Pledgor shall obtain (a) all Project Approvals set forth in Part 5 to Schedule 6.8.1 to the Common Agreement prior to the Initial Disbursement Date and (b) all Project Approvals set forth in Part 5 of Schedule 6.8.5 to the Common Agreement when required to be obtained under Applicable Law.
5.5 Compliance with Laws.
The Pledgor shall comply in all material respects with all Applicable Laws (except to the extent that failure to comply could not have a Material Adverse Effect.)
5.6 Taxes.
The Pledgor shall pay or arrange for the payment prior to delinquency of all Taxes and all other charges (a) imposed on the Pledgor or its income, profits or any of its Property or (b) to the extent not paid by the Borrower pursuant to Section
5.7 Delivery of Reports.
The Pledgor shall, at its own expense, deliver promptly to the Trustee all material reports and material notices received by the Pledgor from the Borrower in respect of any Pledged Collateral.
5.8 Place of Business; Records.
The Pledgor shall: (a) keep its place(s) of business and chief executive office and the office(s) where it keeps its records concerning the Pledged Collateral located at the addresses set forth in Schedule 3 or, upon [•] days’ prior written notice to the Trustee, at such other locations in a jurisdiction in which all action required to perfect and maintain the perfection and priority of the security interests granted or purported to be granted by this Agreement shall have previously been taken with respect to the Pledged Collateral; (b) provide the Trustee with written notice of any change of its name within [•] days of such change; (c) maintain, hold and preserve complete records concerning the Pledged Collateral, including originals of all documentation with respect thereto (except for those original documents required to be delivered to the Trustee pursuant hereto), records of all payments received, all credits granted thereon and all other dealings with respect thereto; (d) to the extent necessary to evaluate the Pledgor’s ability to perform its obligations under the Transaction Documents to which it is a party, permit, upon reasonable prior written notice from the Trustee or any Secured Party, and at reasonable times, representatives of the Trustee or such Secured Party to inspect and make abstracts from such records and make copies of abstracts from such records and discuss the affairs and accounts of the Pledgor with, and be advised as to the same by, its officers all to such reasonable extent as such representatives may request, provided, however, that the requirement to provide notice hereunder (i) shall not delay the exercise or otherwise prejudice any remedies that the Trustee or the other Secured Parties may have under this Agreement or otherwise upon the occurrence of an Event of Default and (ii) shall not be construed as imposing any other requirement as a condition to the exercise of remedies; and (e) if the Trustee so directs, place a legend in form, substance and manner satisfactory to the Trustee on any of the books, records and documents of the Pledgor pertaining to the Pledged Collateral with an appropriate reference to the fact that the relevant item of Pledged Collateral has been assigned to the Trustee for the benefit of the Secured Parties and that the Trustee has the interests therein set out in this Agreement.
5.9 No Other Grant; No Change in Rights.
The Pledgor shall not, and shall not agree to, (a) create, incur the creation of, assume, suffer to exist or permit any Lien upon or with respect to any of the Pledged Collateral, except for the Liens granted pursuant hereto, (b) sell, assign, transfer, convey, set over, surrender or otherwise dispose of, or grant any option, warrant or other right or interest with respect to, any of the Pledged Collateral, except as permitted under Section 5.15, or (c) permit any variation of the rights attaching to or conferred by the Pledged Collateral or any part thereof.
5.10 Bar to Bankruptcy Action.
The Pledgor shall not (a) commence or join with any other Person (other than the Secured Parties) in commencing any Insolvency Proceeding against the Borrower (whether or not permitted by the Shareholders’ Agreement), the Affiliate Shareholder or [EEE] or (b) to the extent permitted by Applicable Law, fail to timely oppose, or to cause the Borrower, the Affiliate Shareholder or [EEE] to timely oppose, any Insolvency Proceeding instituted against the Borrower, the Affiliate Shareholder or [EEE], as the case may be.
5.11 Senior Loans.
Except as provided in Section 6.1.7 of the [AAA Corporation] Funding and Support Agreement, the Pledgor shall not, and shall not permit any of its Affiliates to, hold, directly or indirectly, any Senior Loan or promissory note in respect thereof, whether by purchase, participation or otherwise.
5.12 Cooperation.
The Pledgor shall cooperate in all reasonable respects with the Secured Parties in the administration of the Financing Documents.
5.13 Dissolution; Insolvency Proceedings.
The Pledgor shall not, and shall not agree to, directly or indirectly (a) wind up, liquidate, or dissolve itself, or file any petition or pass a resolution seeking the same or (b) commence any voluntary Insolvency Proceeding.
5.14 Powers of Attorney.
The Pledgor shall not grant any power of attorney or similar power, document, instrument or agreement to any Person with respect to the Pledged Collateral, except those (a) contemplated under the Financing Documents, or (b) authorizing execution of the Transaction Documents to which it is a party.
5.15 Limitation on Transfers.
5.15.1 Equity Interest. For as long as the Affiliate Shareholder holds any direct or indirect ownership interest in the Borrower (a) the Pledgor shall own, directly or indirectly, the Pledgor’s Shareholder Percentage of the issued and outstanding Capital Stock of the Affiliate Shareholder and (b) the Pledgor shall not, without the prior written consent of the Senior Lenders, Transfer or permit the Transfer of its direct or indirect equity interest in or right to acquire any equity interest in the Affiliate Shareholder in a manner that would result in the Pledgor owning (directly or indirectly) less than the Pledgor’s Shareholder Percentage of the issued and outstanding shares of Capital Stock of the Affiliate Shareholder. Any Transfer otherwise permitted under this Section 5.15.1 must satisfy the Transfer Conditions. For as long as [EEE] holds any rights with respect to any Subordinated Shareholder Loans or [AAA Corporation] Replacement Loans or any Subordinated Notes, (i) [AAA Corporation] shall own, directly or indirectly, [•] percent ([•]%) of the issued and outstanding shares of Capital Stock of [EEE] and, (ii) [AAA Corporation] shall not, without the prior written consent of the Senior Lenders, Transfer or permit the Transfer of its direct or indirect equity interest in or right to acquire any equity interest in [EEE], in a manner that would result in [AAA Corporation] owning (directly or indirectly) less than [•]% of the issued and outstanding shares of Capital Stock of [EEE]. Any Transfer otherwise permitted under this Section 5.15.1 must satisfy the Transfer Conditions.
5.15.2 Pledged Notes. The Pledgor shall not transfer its rights with respect to the Pledged Notes or the Subordinated Loans without the prior written consent of the Administrative Agent, except (a) a transfer required under Section 5.15.1 in connection with a Transfer permitted under that Section, or (b) a transfer to the Affiliate Shareholder or [EEE] in accordance with Section 8.10 of the [AAA Corporation] Funding and Support Agreement.
5.16 Proceedings.
The Pledgor shall promptly (but in any event within [•] Business Days) after the Pledgor obtains knowledge or becomes aware thereof, deliver notice to the Administrative Agent of any pending or threatened action, suit or proceeding, at law or in equity, involving the Pledgor or legislation, by or before any Government Authority, arbitral tribunal or other body (a) affecting the Project, or (b) with respect to any Transaction Document, which in either case could reasonably be expected to result in a Material Adverse Effect. In the event of any such action, suit, proceeding or legislation, the Pledgor shall (i) diligently pursue its rights to compensation in respect thereof, (ii) not settle or compromise any claim relating thereto without the prior written approval of the Administrative Agent and (iii) pay all proceeds relating thereto or resulting therefrom in accordance with the Financing Documents.
5.17 No Adverse Control.
The Pledgor shall not, directly or indirectly, exercise control over the Affiliate Shareholder, [EEE] or the Borrower in any manner that could reasonably be expected to result in a default under or breach of any of the terms of the Financing Documents, any Government Approval applicable to the Affiliate Shareholder, [EEE] or the Borrower or any other agreement or instrument to which such Affiliate Shareholder, [EEE] or the Borrower is a party if such default or breach could reasonably be expected to result in a default under or breach of any terms of the Financing Documents.
5.18 Payments Under Pledge Agreement.
The Pledgor shall (a) cause the Affiliate Shareholder to perform its obligations under Sections 14.1 and 14.6 of the Pledge Agreement to which the Affiliate Shareholder is party and (b) cause [EEE] to perform its obligations under Sections 14.1 and 14.6 of the [EEE] Pledge Agreement.
5.19 Utility Regulation.
The Pledgor shall not take (or permit any Affiliate to take) any action that could reasonably be expected to result in (a) the Pledgor being subject to regulation by any Government Authority of the United States as a “public utility,” a “public-utility company,” an “electric utility,” an “electric utility company” or a “holding company,” (as such terms are defined in [FFF] or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing, (b) the Pledgor being subject to regulation as a “subsidiary company” or an “affiliate” of a “holding company” under (and as such quoted terms are defined in) [FFF], or (c) any of the Secured Parties, by reason of its exercise of remedies under the Security Documents to which the Pledgor or any of its Affiliates or Subsidiaries are a party being subject to regulation by any Government Authority of [Name of the Country]as (i) a “public utility,” a “public-utility company,” an “electric utility,” an “electric utility company,” or a “holding company,” (as such terms are defined in [FFF] or the Federal Power Act, as the case may be) or a Subsidiary or Affiliate of any of the foregoing or (ii) a “subsidiary company” or “affiliate” of a “holding company” under (and as such quoted terms are defined in) [FFF].
5.20 Investment Company Act.
The Pledgor shall not take (nor permit any Affiliate to take) any action which could result in the Pledgor falling within the definition of an “investment company” or a company “controlled” by an “investment company,” within the meaning of the United States Investment Company Act of 1940, as amended.
5.21 Shareholder Advances.
From and after the Initial Disbursement Date, the Pledgor shall not make any Shareholder Advance nor hold any rights to any Shareholder Advance. If and to the extent that the Pledgor or any of its Affiliates desires at any time to make a Shareholder Advance, then the Pledgor shall cause its Affiliate Shareholder to make such Shareholder Advance.
6. FURTHER ASSURANCES
6.1 Generally.
The Pledgor shall, at its own expense, (a) execute and deliver, from time to time as reasonably requested by the Trustee or the Administrative Agent, such other documents as the Trustee or the Administrative Agent may reasonably request in connection with the rights, interests and remedies of any Secured Party granted under or provided for in this Agreement or to consummate the transactions contemplated herein and (b) take all such further action within its control required or in the reasonable opinion of the Administrative Agent or any Secured Party advisable to ensure that each Transaction Document to which the Pledgor is a party is in proper legal form under Applicable Law of [Name of the Country] , [Name of the Country] and the jurisdiction of the incorporation of the Pledgor without any further action on the part of any Secured Party with respect to such legal form for the enforcement of any such Transaction Document in such jurisdictions.
6.2 Regarding Security Interests.
The Pledgor agrees that at any time and from time to time, at its own expense, it shall promptly procure, execute and deliver such instruments, agreements, allonges, endorsements and other writings, including Government Approvals and consents of any Persons, and take such further action, as may be necessary, or that the Trustee may deem reasonably advisable and request, in order to establish, maintain, preserve, protect and perfect the Trustee’s and the Secured Parties’ rights in, to and under the Pledged Collateral, any security interest (and the priority thereof) granted or purported to be granted by this Agreement, or to enable the Trustee to exercise and enforce its rights, powers, remedies and privileges under this Agreement. Without limiting the generality of the foregoing, the Pledgor further agrees that it shall no later than [•] Business Days prior to the Initial Disbursement Date and at any time and from time to time thereafter, at its own expense, (a) execute, file and record such financing statements, registrations, notices, vouchers, invoices, confirmatory assignments, conveyances and other writings, and take such other actions, with respect to the Pledged Collateral and this Agreement, with such Government Authorities and other Persons, as the Trustee may reasonably request; (b) cause the security interest granted or purported to be granted by this Agreement, and any proxy or power of attorney provided by the Pledgor to the Trustee under or in connection with this Agreement, to be annotated and recorded in the shareholder records of the Borrower; and (c) deliver or cause to be delivered to the Trustee evidence satisfactory to the Trustee of such annotation and recording. The Pledgor will pay any applicable filing fees and related expenses. The Pledgor authorizes the Trustee to file, register and record any such financing statements, registrations, notices and other writings without the signature of the Pledgor.
7. POWER OF ATTORNEY
7.1 Powers.
The Trustee (or any nominee or agent designated by it) shall have the right, in the name of the Pledgor, or in the name of the Trustee or nominee or agent designated by the Trustee, without notice to or assent by the Pledgor, and the Pledgor hereby constitutes and irrevocably appoints the Trustee (and any nominee or agent designated by it) as the Pledgor’s true and lawful attorney-in-fact, with right of substitution and full power and authority, and without need of further authorization from the Pledgor, (a) to establish, perfect, protect and preserve the security interests (and priority thereof) intended to be created by this Agreement and (b) upon the occurrence of an Event of Default and for so long as such Event of Default is continuing and has not been waived in accordance with the provisions of the Financing Documents to exercise its rights, remedies, powers and privileges under this Agreement, including:
7.1.1 without notice, except as provided in Section 9.15, to sell, lease, or otherwise dispose of the Pledged Collateral, or any part thereof, in one or more public or private sales, at any exchange or broker’s board or at any of the offices of such attorney-in-fact or elsewhere, whether or not such Pledged Collateral is present at the place of sale, for cash, on credit or for future delivery (without the Trustee being required to assume any credit risk therefor), and, in general, at such time or times and on such terms as the Trustee may determine to be desirable;
7.1.2 to ask, demand, collect, receive and give acquittances and receipts for any and all money, claims and other amounts due and to become due to the Pledgor representing dividends, interest payments and other distributions in respect of any Pledged Collateral, and to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of money due in respect of any Pledged Collateral and to hold the same as security for the timely payment and discharge of the Secured Obligations;
7.1.3 to exercise any of the rights of the Pledgor arising under or in connection with the Pledged Collateral and to designate or delegate to another Person, in substitution for such attorney-in-fact, the exercise of such rights of the Pledgor, under such terms as such attorney-in-fact deems proper or necessary;
7.1.4 to execute, deliver, file and record any and all endorsements, allonges, assignments and other transfer documents, financing statements, instruments, notices and other writings;
7.1.5 to file any claim, institute any suit, action or other proceeding in any court of law or equity or in arbitration or otherwise or take any other action deemed appropriate by such attorney-in-fact for the purpose of collecting any and all money due in respect of any Pledged Collateral, to enforce any other right in respect of any Pledged Collateral and to negotiate, enter into or terminate any agreement constituting or relating to the Pledged Collateral;
7.1.6 to defend any suit, claim, action or other proceeding brought against the Borrower or the Pledgor with respect to any Pledged Collateral;
7.1.7 to settle, compromise or adjust any suit, claim, action or other proceeding described above and, in connection therewith, give such discharges or releases as such attorney-in-fact may deem appropriate;
7.1.8 to execute and deliver such deeds of conveyance or sale as may be necessary or proper for the purpose of conveying full legal and equitable title and ownership, free from any claims and rights of the Pledgor to any of the Pledged Collateral;
7.1.9 to pay or perform any obligation which the Pledgor has agreed to pay or perform under or in connection with this Agreement (but without being under any obligation to do so);
7.1.10 to take and retain actual possession and control of any such Pledged Collateral as receiver without bond or otherwise, and transport any of it to any location as determined by such attorney-in-fact; and
7.1.11 in general, to enter into such agreements and documents and perform such acts and things as are required, necessary or, in the opinion of such attorney-in-fact, advisable, to fully accomplish the purpose of this Agreement.
The foregoing power of attorney is coupled with an interest and is irrevocable until all Secured Obligations have been indefeasibly paid and performed in full and all Commitments have been terminated. The Pledgor hereby confirms and ratifies all that the Trustee (or any nominee or agent designated by it) shall lawfully and in good faith do or cause to be done by virtue of and in compliance with this Section 7.
8. LIMITS OF RESPONSIBILITY
Notwithstanding any provision contained in this Agreement to the contrary, neither the Trustee nor any other Secured Party shall have responsibility for (a) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Pledged Collateral, whether or not the Trustee or such other Secured Party has or is deemed to have knowledge of such matters, or (b) taking any steps to preserve any rights against any Persons with respect to any Pledged Collateral. The Trustee’s and each other Secured Party’s sole duty with respect to the custody, safekeeping and physical preservation of the Pledged Collateral in its possession, under Section 9-207 of the UCC or otherwise, shall be to deal with it in the same manner as the Trustee or such Secured Party deals with similar property for its own account. Neither the Trustee nor any other Secured Party, nor their respective directors, officers, employees or agents, shall (i) be liable for failure to demand, collect or realize upon any of the Pledged Collateral or for any delay in doing so, except as provided in Sections
9. REMEDIES
Upon the occurrence and during the continuance of an Event of Default that has not been waived in accordance with the Financing Documents, the Trustee may, at its election, and in addition to other rights, powers, remedies and privileges provided for in this Agreement (including in Section 7) or otherwise available to it under the Common Agreement or any other Transaction Document, do any one or more of the following all of which the Pledgor hereby agrees to be commercially reasonable:
9.1 General Enforcement.
Exercise any and all of the rights, powers, remedies and privileges of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where such rights,
powers, remedies and privileges are asserted) and other Applicable Laws.
9.2
Without notice except as provided in Section 9.15, sell, lease, or otherwise dispose of the Pledged Collateral, or any part thereof, in one or more public or private sales, at any exchange or broker’s board or at any of the Trustee’s offices or elsewhere, whether or not such Pledged Collateral is present at the place of sale, for cash, on credit or for future delivery (without the Trustee being required to assume any credit risk therefor), and, in general, at such time or times and on such terms as the Trustee may determine to be desirable.
9.3 Costs of Remedies.
Except to the extent those costs and expenses have been paid by the Borrower pursuant to Section
9.4 Assembly of Pledged Collateral.
Require the Pledgor to assemble the Pledged Collateral and make it available to the Trustee at a place designated by the Trustee.
9.5 Take Possession of Pledged Collateral.
Enter onto property where any Pledged Collateral is located and take possession thereof with or without judicial process.
9.6 Administration of Pledged Collateral.
Administer, manage and use any of the Pledged Collateral.
9.7 Exercise Rights of the Pledgor.
Exercise any of the rights of the Pledgor arising under or in connection with the Pledged Collateral or any agreement related thereto and designate another Person to serve as attorney�in�fact for purposes of exercising such rights of the Pledgor, under such terms as such attorney�in�fact shall deem proper or necessary.
9.8 Claim Benefits of Pledged Collateral.
Collect, claim and receive all moneys and avail itself of all benefits that accrue, and that may become due and payable to the Pledgor with respect to the Pledged Collateral.
9.9 Notice to Borrower.
Send written notice to the Borrower, instructing the Borrower to pay all moneys due and owing to the Pledgor from time to time with respect to the Pledged Collateral, to such bank accounts as shall be designated in the notice.
9.10 Initiate Proceedings to Protect the Pledged Collateral.
File any claim, institute any suit, action or other proceeding in any court of law or equity or in arbitration or otherwise or take any other action deemed appropriate by the Trustee for the purpose of collecting any and all money due in respect of any Pledged Collateral, to enforce any other right in respect of any Pledged Collateral or any agreement with respect thereto, and to negotiate, enter into or terminate any agreement constituting or relating to the Pledged Collateral.
9.11 Execute Deeds of Conveyance.
Execute and deliver such deeds of conveyance or sale as may be necessary or proper for the purpose of conveying full title and ownership, free from any claims and rights of the Pledgor, to any of the Pledged Collateral, after foreclosure thereof.
9.12 Receivables.
Ask, demand, collect, receive and give acquittances and receipts for any and all money, claims and other amounts due and to become due to the Pledgor representing interest payments and other distributions in respect of any Pledged Collateral, and to take possession of and endorse and collect any checks, drafts, notes, acceptances or other instruments for the payment of money due in respect of any Pledged Collateral and to hold the same as security for the timely payment and discharge of the Secured Obligations.
9.13 Application of Cash.
Apply any cash held by the Trustee as Pledged Collateral and all proceeds received by the Trustee in respect of any sale of, collection from, or other realization upon all or any part of the Pledged Collateral in accordance with the terms of the Financing Documents, including the Intercreditor Agreement and the Trust Agreement.
9.14 Delivery to and Rights of Purchaser.
Upon any sale or other disposition pursuant to this Agreement, deliver, assign and transfer to the purchaser thereof the Pledged Collateral or portion thereof so sold or disposed. Each purchaser at any such sale or other disposition (including any Secured Party) shall hold the Pledged Collateral free from any claim or right of whatever kind, including any equity or right of redemption of the Pledgor and the Pledgor specifically and irrevocably waives, to the fullest extent permitted by Applicable Law, all rights of redemption, stay or appraisal which it has or may have under any Applicable Law.
9.15 Manner of
Provide the Pledgor at least [•] Business Days’ (or such other period as may be required by Applicable Law) prior notice of the time and place of any public sale or the time after which any private sale or other disposition is to be made with respect to any Pledged Collateral owned by the Pledgor, which notice the Pledgor hereby agrees shall constitute reasonable notification thereof. The Trustee shall not be obligated to make any sale of the Pledged Collateral regardless of notice of sale having been given. To the extent permitted by Applicable Law, the Secured Parties, or any one or more of them, shall have the right to purchase the Pledged Collateral, or any part thereof, at any public or private sale, and shall have the right to credit against the amount of the bid made for the Pledged Collateral the amount otherwise payable to the purchasing Secured Party or Secured Parties out of the net proceeds of such sale. The Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sales may, without further notice, be made at the time and place to which it was so adjourned. To the fullest extent permitted by Applicable Law, the Pledgor hereby irrevocably waives any claims, rights, damages and demands against the Trustee or any Secured Party arising out of the sale of the Pledged Collateral, including by reason of the fact that the price at which any Pledged Collateral may have been sold at such a private sale was less than the price which might have been obtained at a public sale, even if the Trustee accepts the first offer received and does not offer such Pledged Collateral to more than one offeree, or by reason of the fact that any sale of the Pledged Collateral, or any part thereof, or any aspect thereof or matter relating thereto, was not commercially reasonable in any respect, except as provided in Sections
9.16 Further Assurances.
Require the Pledgor, at its own expense: (a) to cause the Borrower to execute and deliver all such agreements, instruments and other writings and to take such other actions as may be reasonably necessary, or in the reasonable opinion of the Trustee, advisable in order to expedite or facilitate the disposition of the Pledged Collateral; (b) do or cause to be done all such other acts and things as may be necessary, or in the opinion of the Trustee, advisable to make the sale of such Pledged Collateral valid and binding and in compliance with Applicable Law; and (c) furnish to the Trustee all such information as the Trustee may request in order to determine the number of instruments included in the Pledged Collateral which may be sold by the Trustee as exempt transactions under applicable securities laws and regulations, as the same are from time to time in effect.
9.17 Remedies in General.
In general, to sign such agreements and documents and perform such acts and things required, necessary, or, in the reasonable opinion of the Trustee, advisable, to fully accomplish the purposes hereof.
10.
The Pledgor recognizes that, by reason of applicable securities laws, the Trustee may be compelled, with respect to any sale of all or any of the Pledged Notes, to limit purchasers to those who will agree, among other things, to acquire such securities for their own account, for investment, and not with a view to the distribution or resale thereof. The Pledgor acknowledges and agrees that any such sale may result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions and, notwithstanding such circumstances, agrees that any such sale shall be deemed to have been made in a commercially reasonable manner. The Trustee shall be under no obligation to delay the sale of any of the Pledged Notes for the period of time necessary to permit the Pledgor to register the Pledged Notes for public sale under applicable securities laws, even if the Pledgor would agree to do so.
11. WAIVER OF CLAIMS; ETC.
11.1 Discontinuance of Proceedings.
If the Trustee has instituted any proceeding to enforce any right, power, remedy or privilege under this Agreement by foreclosure, sale or otherwise, and such proceeding is discontinued or abandoned for any reason or is determined adversely to the Trustee, then and in every such case the Pledgor, the Trustee and each of the other Secured Parties shall be restored to their former positions and rights hereunder with respect to the Pledged Collateral subject to the Liens created under this Agreement, and all rights, remedies, powers and privileges of the Trustee and the other Secured Parties shall continue as if no such proceeding had been instituted, subject only, in the case of a proceeding determined adversely to the Trustee, to the terms of any determination made in such proceeding.
11.2 Waiver.
Except as otherwise expressly provided in this Agreement, the Pledgor irrevocably waives, to the fullest extent permitted by Applicable Law, notice and judicial hearing in connection with the Trustee’s exercise of its rights with respect to any Pledged Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any other similar right the Pledgor would otherwise have under Applicable Law of [Name of the Country], [Name of the Country] or the jurisdiction of incorporation of the Pledgor. The Pledgor further irrevocably waives, to the fullest extent permitted by Applicable Law:
11.3 Divestiture.
To the fullest extent permitted by Applicable Law, any sale by the Trustee or any other Secured Party of, or the grant of options to purchase, or any other realization upon, any Pledged Collateral will operate to divest all right, title, interest, claim and demand, either at law or in equity, of the Pledgor therein and thereto, and will be a perpetual bar both at law and in equity against the Pledgor and against any and all Persons claiming or attempting to claim from, through and under the Pledgor, the Pledged Collateral so sold, optioned or realized upon, or any part thereof.
12. CONTINUING OBLIGATIONS AND WAIVERS
The Pledgor agrees that its obligations under this Agreement are primary, original, irrevocable, absolute, independent, continuing and unconditional and neither such obligations nor the rights of the Trustee or the other Secured Parties shall be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety, or any of its property, other than indefeasible payment, performance and discharge in full of the Secured Obligations. In furtherance of the foregoing, the Pledgor agrees as follows:
12.1 Enforceability of Transaction Documents.
This Agreement is not conditional or contingent upon value, the genuineness, validity, regularity or enforceability of any Transaction Document or any provision thereof or any agreement or instrument referred to therein or the pursuit by the Trustee or the other Secured Parties of any remedies that they now have or may hereafter have under the Transaction Documents, at law, in equity or otherwise. The Pledgor’s obligations under this Agreement shall not be reduced by virtue of any non-payment, non-performance, partial payment or partial performance by the Borrower or any other Person of any amount or other obligation due under the Transaction Documents.
12.2 Independent Obligations.
The obligations of the Pledgor hereunder are independent of the Obligations of the Borrower and the obligations of any guarantor of the Obligations of the Borrower, and a separate action or actions may be brought and prosecuted against the Pledgor whether or not any action is brought against the Borrower or any such guarantor and whether or not the Borrower or other guarantor is joined in any such action or actions.
12.3 Certain Waivers.
The Pledgor irrevocably and unconditionally waives any right to require the Trustee or any other Secured Party to (a) proceed against any Person, including the Borrower, (b) proceed against or exhaust any collateral held from the Borrower or any other Person, (c) pursue any other remedy in the power of the Trustee or any Secured Party, or (d) except as expressly provided herein, make or give any notices which may be required by Applicable Law or otherwise to preserve any rights against the Pledgor hereunder, including any presentments, demands for performance, notices of nonperformance, protests, notices of protests or notices of dishonor in connection with any obligation or evidence of indebtedness that constitutes or evidences, in whole or in part, the Secured Obligations (including the Obligations of the Borrower).
12.4 Additional Waivers.
The Pledgor irrevocably and unconditionally waives any defense arising by reason of, and agrees that the rights of the Trustee and the other Secured Parties and the obligations of the Pledgor shall be absolute and unconditional irrespective of:
12.5 Right to Amend Obligations.
The Pledgor irrevocably authorizes the Trustee and other Secured Parties, without notice or demand, and without affecting the Pledgor’s obligations or the rights of the Trustee or the other Secured Parties under this Agreement, from time to time to:
12.6 Enforcement.
The Trustee may enforce this Agreement upon the occurrence of an Event of Default that has not been waived in accordance with the Financing Documents, notwithstanding the existence of any dispute with respect to the existence of any Event of Default or any counterclaim, set�off or other claim which the Borrower or the Pledgor may allege against the Trustee or any other Secured Party with respect thereto.
12.7 Subrogation.
Until the Secured Obligations shall have been indefeasibly paid, performed and discharged in full and all Commitments have been terminated, the Pledgor shall withhold exercise of: (a) any right of subrogation or contribution (other than any right of contribution or indemnification from the other Sponsors); (b) any right to enforce any remedy that the Trustee or any other Secured Party now has or may hereafter have against the Borrower or any other Person; and (c) any benefit of, and any right to participate in, any security now or hereafter held by the Trustee or any Secured Party. The Pledgor further agrees that to the extent the limitation of its rights of subrogation and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation the Pledgor may have against the Borrower or against any collateral or security, and any rights of contribution the Pledgor may have against any guarantor, shall be junior and subordinate to any rights the Trustee and/or the Secured Parties may have against the Borrower, to all right, title and interest the Trustee or the other Secured Parties may have in any such collateral or security, and to any right the Trustee or the other Secured Parties may have against such guarantor. The Trustee and the other Secured Parties may use, sell, lease or otherwise dispose of any item or collateral or security as they see fit without regard to any subrogation or contribution rights the Pledgor may have, and upon any disposition or sale, any rights of subrogation or contribution the Pledgor may have shall terminate. If any amount shall be paid to the Pledgor on account of such subrogation rights at any time when all the Secured Obligations shall not have been indefeasibly paid, performed and discharged in full and all Commitments have been terminated, such amount shall be held in trust for the benefit of the Trustee and the other Secured Parties and shall forthwith be paid to the Trustee to be credited and applied upon the Secured Obligations.
12.8 Relevant Facts.
The Pledgor agrees that neither the Trustee nor any other Secured Party shall have an obligation to disclose to the Pledgor information or material acquired in the course of its relationship with the Borrower.
13. MISCELLANEOUS
13.1 Payment of Expenses, Etc.
Without prejudice to the obligations of the Pledgor under Sections 9.3 and 13.6, and to the extent such costs and expenses have not been paid by the Borrower pursuant to Section
provided, that, the relevant Secured Party shall provide to the Pledgor documentation evidencing such costs and expenses to the extent that the provision of such documentation would be consistent with such Secured Party’s internal policies for reimbursing costs and expenses of a similar nature.
13.2 Notices.
Except as otherwise expressly provided herein or in any Financing Document, all notices and other communications required or otherwise contemplated to be made hereunder shall be in writing and in English, and shall be provided by one or more of the following means and shall be deemed to have been duly given (a) if delivered personally, when received, (b) if transmitted by facsimile, at the time of transmission with receipt of transmittal confirmation, (c) if sent by courier for inland delivery, on the first Business Day following the date of deposit with such courier service or (d) if sent by international courier for overseas delivery, on the [•]th Business Day following the date of deposit with such courier service, or such earlier date as may be confirmed to the sender by such courier service; provided, that any notice or communication to any Senior Lender or Agent shall not be effective until received by such Senior Lender or Agent. All such notices and other communications to be sent to a party hereto shall be sent to the “Address for Notices” specified below such party’s name on Annex I to the Common Agreement, or to such other address as may be designated by a party by giving written notice in accordance with this Section 13.2.
13.3 No Waiver; Remedies Cumulative.
13.4 Severability.
If any provision of this Agreement is declared invalid or unenforceable by any lawful tribunal, then it shall be construed, to the extent feasible, to conform to legal requirements of that tribunal. If no feasible interpretation would save such provision, it shall be severed from the remainder of this Agreement as though never included herein and the remaining provisions of this Agreement shall remain in full force and effect unless such invalidity or unenforceability causes substantial deviation from the underlying intent of the parties expressed herein, in which case the parties hereto shall replace the invalid or unenforceable provision with a valid or enforceable provision which corresponds as far as possible to the spirit and purpose of the invalid or unenforceable provision.
13.5 No Amendments.
This Agreement shall only be modified, amended or supplemented with the express written consent of the Pledgor and the Trustee acting at the direction of the Administrative Agent.
13.6 Judgment Currency.
13.7 English Language.
This Agreement is made in the English language. Any translation of this Agreement shall have no legal validity.
13.8 Entire Agreement.
This Agreement and the other Financing Documents to which the Pledgor is a party embody the entire agreement and understanding of the Pledgor and the Secured Parties, and supersede all prior agreements and understandings of the Pledgor and the Secured Parties, relating to the subject matter herein contained.
13.9 Waiver of Sovereign Immunity.
The Pledgor acknowledges and agrees that the activities contemplated by this Agreement are commercial in nature rather than governmental or public, and therefore acknowledges and agrees that it is not entitled to any right of immunity on the grounds of sovereignty or otherwise with respect to such activities or in any legal action or proceeding arising out of or relating to this Agreement. To the extent that the Pledgor or any of its Property has or hereafter may acquire any right to immunity from suit, set-off, legal proceedings generally, attachment before judgment, attachment in aid of execution or other attachment or execution of judgment on the grounds of sovereignty or otherwise, the Pledgor hereby expressly and irrevocably waives such rights to immunity for itself and its Property in respect of its obligations arising under or relating to this Agreement or any related documentation, and agrees not to assert any such right or claim in any legal action or proceeding arising out of or relating to this Agreement. The Pledgor agrees that the waivers set forth above are made to the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and are intended to be irrevocable and not subject to withdrawal for purposes of such Act.
13.10 Governing Law; Submission To Jurisdiction; Venue; Waiver Of Jury Trial.
13.11 No Third Party Beneficiaries.
The agreements contained herein are made solely for the benefit of the Secured Parties, and successors and assigns of the Secured Parties, as specified in the Financing Documents, and shall not be construed as having been intended to benefit any third party.
13.12 Assignments.
This Agreement shall be binding upon, inure to the benefit of and be enforceable by the respective successors and assigns of the Pledgor, the Trustee and the other Secured Parties. The Pledgor may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of each of the Senior Lenders. The Trustee may assign or transfer any of its rights or obligations hereunder in connection with an assignment or transfer of its obligations under and in accordance with the Financing Documents. Any other Secured Party may assign or transfer its rights hereunder in connection with an assignment or transfer of all or any part of its interest in Obligations of the Borrower owed to it in accordance with the provisions of the Common Agreement. Any attempted assignment in contravention of this Section shall be null and void.
13.13 Special Exculpation.
None of the Secured Parties shall be liable to the Pledgor or any other Person for any indirect, special, consequential or punitive damages (including any loss of profit business opportunity or anticipated savings) howsoever arising (whether in negligence or otherwise) out of or in connection with the performance or non-erformance of this Agreement or any other Financing Document.
13.14 Reinstatement.
This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance by the Pledgor or any other Person of the Obligations of the Borrower or the other Secured Obligations, or any part thereof, is, pursuant to Applicable Law, rescinded or reduced in amount, or must otherwise be restored or returned by the Trustee or any other Secured Party. In the event that any payment or performance or any part thereof is so rescinded, reduced, restored or returned, such obligations shall be reinstated and deemed to be reduced only by such amount paid or performed and not so rescinded, restored or returned. To the extent any such reinstatement would not be effective under Applicable Law, the Pledgor covenants and agrees to secure the Secured Obligations on the same terms and conditions and with the same force and effect as this Agreement and the security interest created under this Agreement, by (a) executing and delivering to the Trustee a new agreement with the same terms and conditions as are contained in this Agreement and (b) doing all things the Trustee deems necessary to create a new security interest equivalent to that created under this Agreement, and, if applicable, duly perfect such security interest. Without limiting the indemnity obligations of the Pledgor contained elsewhere in this Agreement or in any other Financing Document, the Pledgor shall indemnify the Trustee and each other Secured Party within [•]Business Days after written demand for all reasonable costs and expenses (including fees and expenses of counsel) incurred by the Trustee or other Secured Party in connection with such rescission or restoration.
13.15 Authority of the Trustee.
The Pledgor acknowledges that the rights and responsibilities of the Trustee under this Agreement with respect to any action taken by the Trustee or the exercise or non-xercise by the Trustee of any power, right or remedy provided for or resulting or arising out of this Agreement shall, as between the Trustee and the Secured Parties, be governed by the Common Agreement, the Trust Agreement, the Intercreditor Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Trustee and the Pledgor, the Trustee shall be conclusively presumed to be acting as the Trustee for the Secured Parties with full and valid authority so to act or refrain from acting, and the Pledgor shall be under no obligation or entitlement to make any inquiry respecting such authority.
13.16 Continuing Security Interest; Termination.
This Agreement shall create a continuing security interest in the Pledged Collateral and shall apply to all past, present and future Secured Obligations, including Secured Obligations that arise under transactions that continue any of the Secured Obligations, increase or decrease any of the Secured Obligations, or from time to time create new Secured Obligations after all or any prior Secured Obligations have been satisfied. Upon the indefeasible payment, performance and discharge in full of all Secured Obligations and the termination of all Commitments, (a) the security interests granted under this Agreement shall terminate and the Pledgor shall be entitled to the return upon its written request and at its expense, of such of the Pledged Collateral in the possession of the Trustee as shall not have been sold or otherwise applied pursuant to the terms hereof, and (b) the Trustee shall execute and deliver to the Pledgor, at the Pledgor’s expense, any instruments reasonably requested by the Pledgor (which may include a UCC termination statement) acknowledging such termination. Notwithstanding the foregoing, all indemnity obligations of the Pledgor to the Secured Parties under the Financing Documents shall survive such termination.
13.17 Limitation of Recourse.
The Pledgor’s personal liability for its obligations under this Agreement shall be limited as provided in Section 11.2 of the Common Agreement; provided, however, that the Pledgor’s obligation to pay costs and expenses pursuant to Sections 9.3 and 13.1 shall not be so limited and shall constitute a full recourse obligation of the Pledgor.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date hereof on the signature pages of the Omnibus Agreement, of which this Agreement constitutes Volume 9.
SCHEDULE 1
PLEDGED NOTES
SCHEDULE 2
FORM OF
[AAA Corporation] PLEDGE AGREEMENT SUPPLEMENT
This PLEDGE AGREEMENT SUPPLEMENT, dated as of [•], 20[•], is delivered pursuant to Section 3.2 of the Pledge Agreement referred to below. The undersigned hereby agrees that this Pledge Agreement Supplement may be deemed a part of the Pledge Agreement dated as of [•], 20[•] (as amended, supplemented or otherwise modified from time to time, the “Pledge Agreement”; the terms defined therein and not otherwise defined herein being used as therein defined), made by and between the undersigned and [BBB Bank], a national banking association, not in its individual capacity but solely as Trustee for the Secured Parties.
The undersigned hereby agrees that the notes listed in Exhibit A attached hereto shall for all purposes constitute Pledged Collateral, shall be subject to the security interest created by the Pledge Agreement and shall secure all Secured Obligations.
The undersigned hereby certifies that the representations and warranties set forth in Section 4 of the Pledge Agreement are true and correct with respect to the Pledged Collateral listed in Exhibit A on and as of the date hereof.
[AAA CORPORATION]
corporation organized under the laws of [Name of the Country]
By :
Name : [•]
Title : [•]
Exhibit A
UCC FILING LOCATIONS
OTHER FILINGS, REGISTRATIONS, ETC.
None
OFFICE LOCATIONS FOR PLEDGOR
[AAA CORPORATION]
[Address]
NAMES HELD IN THE LAST FIVE YEARS
None
2_11 Pledge Agreement.doc
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