ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if: (i) an Enforcement Event has occurred and is continuing; and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them), the Pledgee, may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany. (b) The Pledgee may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of: (i) the relevant Pledgor: (1) incurred as Borrower under the Credit Agreement; (2) incurred as borrower under a Local Facility Agreement; (3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty; (4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or (5) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”): (1) incurred as Borrower under the Credit Agreement; (2) incurred as borrower under a Local Facility Agreement; (3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty; (4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or (5) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after: (i) the relevant Pledgor’s auditors have: (1) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and (2) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges. (c) The Pledgee shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of: (i) the relevant Pledgor: (1) incurred as Borrower under the Credit Agreement; (2) incurred as borrower under a Local Facility Agreement; (3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty; (4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or (5) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or (ii) a Relevant Pledgor’s Subsidiary: (1) incurred as Borrower under the Credit Agreement; (2) incurred as borrower under a Local Facility Agreement; (3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty; (4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or (5) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 and Clause 8 (Swiss Limitations) at any time thereafter. 7.2 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction). 7.3 Each Pledgor hereby expressly agrees that five business days’ prior written notice to it of the place and time of any such sale shall be sufficient and the Pledgee shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee. 7.4 If the Pledgee should seek to enforce any Pledges under sub-Clause 7.1, each Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale of the GP Interests or, as the case may be, Shares or any part thereof and/or the exercise by the Pledgee of any other right it may have as a Pledgee. 7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral. 7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted. 7.7 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung). 7.8 Each Pledgor hereby expressly waives all defenses of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code. 7.9 Each Pledgor hereby expressly waives its defenses based on defenses any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code. 7.10 If the Pledges are enforced or if any Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that Pledgor by subrogation or otherwise. Further, no Pledgor shall at any time before, on or after an enforcement of the Pledges and as a result of it entering into this Agreement, be entitled to demand indemnification or compensation from the Company or any of the Company’s affiliates or to assign any of these claims.
Appears in 1 contract
Samples: Junior Share and Partnership Interest Pledge Agreement (RenPac Holdings Inc.)
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
(i) an Enforcement Event has occurred and is continuing; and
(ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them), the Pledgee, may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) The Pledgee may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
(i) the relevant Pledgor:
(1) incurred as Borrower under the Credit Agreement;
(2) incurred as borrower under a Local Facility Agreement;
(3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
(4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
(5) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
(ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
(1) incurred as Borrower under the Credit Agreement;
(2) incurred as borrower under a Local Facility Agreement;
(3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
(4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
(5) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
(i) the relevant Pledgor’s auditors have:
(1) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
(2) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
(ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) The Pledgee shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
(i) the relevant Pledgor:
(1) incurred as Borrower under the Credit Agreement;
(2) incurred as borrower under a Local Facility Agreement;
(3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
(4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
(5) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
(ii) a Relevant Pledgor’s Subsidiary:
(1) incurred as Borrower under the Credit Agreement;
(2) incurred as borrower under a Local Facility Agreement;
(3) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
(4) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
(5) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 and Clause 8 (Swiss Limitations) at any time thereafter.
7.2 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each Pledgor hereby expressly agrees that five business days’ prior written notice to it of the place and time of any such sale shall be sufficient and the Pledgee shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 If the Pledgee should seek to enforce any Pledges under sub-Clause 7.1, each Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale of the GP Interests or, as the case may be, Shares or any part thereof and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each Pledgor hereby expressly waives all defenses of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each Pledgor hereby expressly waives its defenses based on defenses any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 If the Pledges are enforced or if any Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that Pledgor by subrogation or otherwise. Further, no Pledgor shall at any time before, on or after an enforcement of the Pledges and as a result of it entering into this Agreement, be entitled to demand indemnification or compensation from the Company or any of the Company’s affiliates or to assign any of these claims.
Appears in 1 contract
Samples: Junior Share and Partnership Interest Pledge Agreement (RenPac Holdings Inc.)
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them), the Pledgee, Collateral Agent may on its own behalf and on behalf of the other Pledgees at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 Clause7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is Pledgees are entitled to exercise its their rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee Pledgees shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have .
6.4 The Collateral Agent will notify the Pledgor five business days prior to the enforcement of the Pledges sold (including at public auctionor any of them) according to Clause 6. No such notification shall be required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgees have reasonable grounds to believe that observance of the notice period will adversely affect the legitimate interests (berechtigte Interessen) of the Pledgees.
7.3 Each Pledgor hereby expressly agrees that five business days’ prior written notice to it of the place and time of any such sale shall be sufficient and the Pledgee shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee Pledgees acting through the Collateral Agent should seek to enforce any the Pledges under sub-pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares Pledges (or any part thereof of them) and/or the exercise by the Pledgee Pledgees, acting through the Collateral Agent, of any other right it they may have as a Pledgee.
7.5 Whilst 6.6 The Pledgees (acting through the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 The Pledgee Collateral Agent) may, in its their sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims claims
to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee Pledgees shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledges, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has have become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, Collateral Agent (acting on the instructions of the Secured Parties) may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, Collateral Agent may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Note Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has have become due and payable, then in order to enforce the Pledges Pledge the Collateral Agent (or any acting on the instructions of them), the Pledgee, Secured Parties) may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — - Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, Collateral Agent may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Note Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims claims
to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has have become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, Collateral Agent (acting on the instructions of the Secured Parties) may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has have become due and payable, then in order to enforce the Pledges (or any of them)Pledges, the Pledgee, Collateral Agent (acting on the instructions of the Secured Parties) may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the August 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the August 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the August 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an a Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the 2009 Senior Secured Notes Indenture, the October 2010 Secured Notes Indenture, the February 2011 Secured Notes Indenture, the August 2011 Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee (acting on the instructions of the Secured Parties) should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — pledgor—Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
Samples: Account Pledge Agreement (Beverage Packaging Holdings (Luxembourg) v S.A.)
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs paragraph (b) and (c) of this Clause 7.1 below, if:
if (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are Pledge is met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, Collateral Agent may on its own behalf and on behalf of the Secured Parties at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) The Pledgee Collateral Agent may only enforce the Pledges Pledge in accordance with paragraph (a) of this Clause 7.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) Pledge. The Pledgee Collateral Agent shall only enforce the Pledges Pledge in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New and/or the October 2010 Secured Notes Indenture and/or the February 2011 Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 (Swiss Limitations) below, provided that if the relevant Pledges are Pledge is not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges Pledge in accordance with this paragraph (cb) of this Clause 7.1 and Clause 8 (Swiss Limitations) at any time thereafter.
7.2 (c) Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges Pledge enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges Pledge sold (including at public auction).
7.3 Each 7.2 The Pledgor hereby expressly agrees that five 5 (five) business days’ prior written notice to it the Pledgor of the place and time of any such sale shall be sufficient and the Pledgee shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it the Pledgor prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 7.3 If the Pledgee should seek to enforce any Pledges the Pledge under sub-Clause 7.1, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale of the GP Interests or, as the case may be, Shares or any part thereof and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 7.4 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing continuing, all subsequent dividend payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 7.5 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During However, the Pledgor shall, during the continuation of an event which allows the Pledgee to enforce the PledgesPledge, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 9.6 below regardless of which resolutions are intended to be adopted.
7.7 7.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, shall be used to satisfy the Obligations. The Pledgor 1 and Pledgor 2 hereby expressly waive their respective waives its right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) Pledge and pledges over the shares or partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) Pledge over the shares in the Company individually at in separate proceedings or together with pledges over shares or partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 7.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 7.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 7.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company or any of the Company’s affiliates or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
6.1 If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges Pledge are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them)Pledge, the Pledgee, may Collateral Agent at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 6.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 6.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Note Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or the New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 7 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 6.2 and Clause 8 7 (Swiss Limitations) at any time thereafter.
7.2 6.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is entitled to exercise its rights without obtaining an enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each 6.4 The Pledgee will notify the Pledgor hereby expressly agrees that five business days’ days prior written notice to it the enforcement of the place and time of any Pledge according to Clause 6. No such sale notification shall be sufficient and required if (i) the Pledgor has generally ceased to make payments (Zahlungseinstellung), (ii) an application for the institution of insolvency proceedings is filed by or against the Pledgor or (iii) the Pledgee shall not be obliged has reasonable grounds to deliver any further notices (including, but not limited to the notices set out under Section 1234 believe that observance of the German Civil Codenotice period will adversely affect the legitimate interests (berechtigte Interessen) to it prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the Pledgee.
7.4 6.5 If the Pledgee should seek to enforce any Pledges under sub-the Pledge pursuant to Clause 7.16.1 hereof, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale realisation of the GP Interests or, as the case may be, Shares or any part thereof Pledge and/or the exercise by the Pledgee of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee shall have the rights set forth in sub-Clause 9.2.8 below regardless of which resolutions are intended to be adopted.
7.7 6.6 The Pledgee may, in its sole discretion, determine which of several security interests, if applicable, interests (created under this or other security agreements) shall be used to satisfy the Obligations. Pledgor 1 and Pledgor 2 hereby expressly waive their respective right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee may decide to enforce the Pledges 1 and Pledges 2 (respectively) individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 6.7 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 6.8 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 6.9 If the Pledges are Pledge is enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges Pledge, and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company a Grantor or any affiliate of the Company’s affiliates a Grantor or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs paragraph (b) and (c) of this Clause 7.1 below, if:
if (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them), the PledgeeCollateral Agent, may at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 above in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares at their realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (cb) of this Clause 7.1 and Clause 8 (Swiss Limitations) at any time thereafter.
7.2 Notwithstanding Section 1277 of the German Civil Code, the Pledgee Collateral Agent is entitled to exercise its rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee Collateral Agent shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, in particular have the Pledges sold (including at public auction).
7.3 Each The Pledgor hereby expressly agrees that five business days’ prior written notice to it the Pledgor of the place and time of any such sale shall be sufficient and the Pledgee Collateral Agent shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it the Pledgor prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the PledgeeCollateral Agent.
7.4 If the Pledgee Collateral Agent should seek to enforce any the Pledges under sub-Clause 7.1, each the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale of the GP Interests or, as the case may be, Shares or any part thereof and/or the exercise by the Pledgee Collateral Agent of any other right it may have as a Pledgee.
7.5 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee Collateral Agent in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee Collateral Agent shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or Shares. During the continuation of an event which allows the Pledgee Collateral Agent to enforce the Pledges, each the Pledgor shall have the obligations and the Pledgee Collateral Agent shall have the rights set forth in sub-Clause 9.2.8 9.8 below regardless of which resolutions are intended to be adopted.
7.7 The Pledgee Collateral Agent may, in its sole discretion, determine which of several security interests, if applicable, shall be used to satisfy the Obligations. The Pledgor 1 and Pledgor 2 hereby expressly waive their respective waives its right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee Collateral Agent may decide to enforce the Pledges 1 and Pledges 2 (respectively) in the Company individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each The Pledgor hereby expressly waives all defenses of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each The Pledgor hereby expressly waives its defenses based on defenses any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 If the Pledges are enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee Collateral Agent shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company or any of the Company’s affiliates or to assign any of these claims.
Appears in 1 contract
ENFORCEMENT OF THE PLEDGES. (a) Subject to paragraphs (b) and (c) of this Clause 7.1 below, if:
If (i) an Enforcement Event has occurred and is continuing; and
continuing and (ii) the requirements set forth in Sections 1273 para 2, 1204 et seq. of the German Civil Code with regard to the enforcement of any of the Pledges are met (Pfandreife), in particular, if any of the Obligations has become due and payable, then in order to enforce the Pledges (or any of them), the Pledgee, Collateral Agent may on its own behalf and on behalf of the other Pledgees at any time thereafter avail itself of all rights and remedies that a pledgee has against a pledgor under the laws of the Federal Republic of Germany.
(b) 7.2 The Pledgee Collateral Agent may only enforce the Pledges in accordance with paragraph (a) of this Clause 7.1 above in relation to obligations of any Grantor (other than provided that this restriction shall not apply to obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a direct or indirect subsidiary of the relevant Pledgor (the “Relevant Pledgor’s Subsidiary”):
) (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds), after:
) after (i) the relevant Pledgor’s auditors have:
have (1y) delivered an audited interim balance sheet of the relevant Pledgor (valuating the GP Interests or, as the case may be, Shares Interest at their its realisation value) to the Pledgee; and
Collateral Agent and (2z) determined the existence and extent of the profits available for the payment of a dividend by the relevant Pledgor in accordance with the relevant provisions of the Swiss Code of Obligations (the “Auditor’s Determination”); and
) and (ii) the relevant Pledgor’s shareholders have passed for such dividend payment resolutions for the distribution of dividends (“Dividend Resolution”) in accordance with the relevant provisions of the Swiss Federal Code of Obligations being in force at that time. The relevant Pledgor shall deliver the Auditor’s Determination and the Dividend Resolution within 30 business days after the Pledgee Collateral Agent has given notice to the relevant Pledgor of its intention to enforce the relevant Pledges.
(c) . The Pledgee Collateral Agent shall only enforce the Pledges in relation to obligations of any Grantor (other than provided that this restriction shall not apply to obligations under the Credit Documents of:
of (i) the relevant Pledgor:
Pledgor (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
, (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the relevant Pledgor is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the relevant Pledgor, up to such proceeds; or
proceeds and (ii) a Relevant Pledgor’s Subsidiary:
Subsidiary (1v) incurred as Borrower under the Credit Agreement;
, (2w) incurred as borrower under a Local Facility Agreement;
, (3x) incurred as a party to and beneficiary under any hedging agreement entered into with an Hedge Counterparty;
Counterparty (4y) owed as cash management obligations to a Cash Management Bank for Cash Management Services, provided the Relevant Pledgor’s Subsidiary is a beneficiary of the Cash Management Services causing such cash management obligations; or
obligations or (5z) to the extent certain proceeds of the Senior Secured Notes Indenture or New Secured Notes Indenture have been made available to the Relevant Pledgor’s Subsidiary, up to such proceeds) if according to the Auditor’s Determination and the Dividend Resolution the relevant Pledgor has validly resolved to distribute the profits available for payment of a dividend, subject to Clause 8 (Swiss Limitations) below, provided that if the relevant Pledges are not enforced and/or enforceable, the Pledgee Collateral Agent may subsequently again seek to enforce the relevant Pledges in accordance with this paragraph (c) of this Clause 7.1 7.2 and Clause 8 (Swiss Limitations) at any time thereafter.
7.2 7.3 Notwithstanding Section 1277 of the German Civil Code, the Pledgee is Pledgees are entitled to exercise its their rights without obtaining enforceable judgment or other instrument (vollstreckbarer Titel). The Pledgee Pledgees shall be entitled to have the Pledges enforced in any manner allowed under the laws of the Federal Republic of Germany, and in particular have the Pledges sold (including at public auction).
7.3 Each 7.4 The Pledgor hereby expressly agrees that five 5 (five) business days’ prior written notice to it the Pledgor of the place and time of any such sale shall be sufficient and the Pledgee Pledgees, acting through the Collateral Agent, shall not be obliged to deliver any further notices (including, but not limited to the notices set out under Section 1234 of the German Civil Code) to it the Pledgor prior to such sale. The sale may take place at any place in the Federal Republic of Germany designated by the PledgeeCollateral Agent, acting for and on behalf of the Pledgees.
7.4 7.5 If the Pledgee Pledgees, acting through the Collateral Agent, should seek to enforce any the Pledges under sub-Clause 7.1, each 7.1 the Pledgor shall, at its own expense, render forthwith all necessary assistance in order to facilitate the prompt sale of the GP Interests or, as the case may be, Shares or any part thereof and/or the exercise by the Pledgee Pledgees, acting through the Collateral Agent, of any other right it they may have as a Pledgee.
7.5 7.6 Whilst the requirements for enforcement under sub-Clause 7.1 are continuing all subsequent payments of profits or compensation attributable to the GP Interests or, as the case may be, Shares and all payments based on similar ancillary rights attributed to the GP Interests or, as the case may be, Shares may be applied by the Pledgee Pledgees, acting through the Collateral Agent, in satisfaction in whole or in part of the Obligations or treated as additional collateral.
7.6 7.7 Even if the requirements for enforcement referred to under sub-Clause 7.1 above are met, the Pledgee Pledgees shall not, whether as proxy or otherwise, be entitled to exercise the voting rights attached to the GP Interests or SharesInterests. During However, the Pledgor shall, during the continuation of an event which allows the Pledgee Pledgees to enforce the Pledges, each Pledgor shall have the obligations and the Pledgee Pledgees shall have the rights set forth in sub-Clause 9.2.8 9.3 below regardless of which resolutions are intended to be adopted.
7.7 7.8 The Pledgee Pledgees acting through the Collateral Agent may, in its their sole discretion, determine which of several security interests, if applicable, shall be used to satisfy the Obligations. The Pledgor 1 and Pledgor 2 hereby expressly waive their respective waives its right pursuant to Section 1230 sentence 2 of the German Civil Code to limit the realisation of the Pledges 1 and Pledges 2 (respectively) and pledges over the partnership interests or shares in one or more other companies to such number of pledges as are necessary to satisfy the Obligations and agrees further that the Pledgee Collateral Agent may decide to enforce the Pledges 1 and Pledges 2 (respectively) in the Company individually at separate proceedings or together with pledges over partnership interests or shares in one or more other companies at one single proceeding (Gesamtverwertung).
7.8 Each 7.9 The Pledgor hereby expressly waives all defenses defences of revocation (Einrede der Anfechtbarkeit) and set-off (Einrede der Aufrechenbarkeit) pursuant to Sections 770, 1211 of the German Civil Code.
7.9 Each 7.10 The Pledgor hereby expressly waives its defenses defences based on defenses defences any Grantor might have against any of the Obligations (Einreden des Hauptschuldners) pursuant to Section 1211 para 1 sentence 1 alternative 1 of the German Civil Code.
7.10 7.11 If the Pledges are enforced or if any the Pledgor has discharged any of the Obligations (or any part of them), Section 1225 of the German Civil Code (legal subrogation of claims to a pledgor — Forderungsübergang auf den Verpfänder) shall not apply and no rights of the Pledgee Pledgees shall pass to that the Pledgor by subrogation or otherwise. Further, no the Pledgor shall at any no time before, on or after an enforcement of the Pledges and as a result of it the Pledgor entering into this Agreement, be entitled to demand indemnification or compensation from the Company or any of the Company’s affiliates or to assign any of these claims.
Appears in 1 contract
Samples: Partnership Interest Pledge Agreement (RenPac Holdings Inc.)
