PLEDGE AGREEMENT
Exhibit
4.4
PLEDGE
AGREEMENT dated as of May ____, 2008 and as amended, supplemented or modified
from time to time (this “Pledge
Agreement”),
between Compañía Minera Condesa S.A., a sociedad
anónima
duly
organized and existing under the laws of the Republic of Perú, as pledgor (the
“Pledgor”)
and
Banco de Crédito del Perú, as collateral agent under the Term Loan Agreement (as
defined below) acting on behalf of the Lenders (“Collateral
Agent’).
WHEREAS,
Compañía de Minas Buenaventura S.A.A., a sociedad
anónima abierta
duly
organized and existing under the laws of the Republic of Perú (“Buenaventura”)
has
entered into that certain $450,000,000 term loan agreement dated as of the
date
hereof (as amended, supplemented or modified from time to time, the
“Term
Loan Agreement”),
entered into among, Buenaventura as borrower, the Pledgor as guarantor, Banco
de
Crédito del Perú as administrative agent, Banco de Crédito del Perú as
collateral agent and any other financial institution becoming a party thereto
as
lender (together the “Lenders”);
and
WHEREAS,
the Term Loan Agreement requires, among other things, that the Pledgor pledge
American depository shares held by it representing common shares of Buenaventura
(the “Common
Shares”)
deposited with the Bank of New York by the Pledgor, to secure, on a first
ranking basis, all obligations of Bueneventura and the Pledgor arising in
connection with the Term Loan Agreement; and
WHEREAS,
in order to secure all Secured Obligations (as defined below), Pledgor has
agreed to execute and deliver to the Collateral Agent a pledge agreement in
substantially the form hereof;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
| 1. |
DEFINITIONS
|
1.1 Definition
of Terms Used Herein Generally.
All
capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to such term as set forth in the Term Loan Agreement. All terms used
herein and defined in the NYUCC (as defined below) shall have the same
definitions herein as specified therein; provided,
however,
that if
a term is defined in Article 9 of the NYUCC differently than in another
Article of the NYUCC, the term has the meaning specified in Article 9 of
the NYUCC.
1.2 Definition
of Certain Terms Used Herein.
As used
herein, the following terms shall have the following meanings:
“Extraordinary
Payments”
shall
have the meaning assigned to such term in Section 5.2.
“Indemnified
Party”
shall
have the meaning assigned to such term in Section 8.4.
“Lien”
shall
mean any security interest, mortgage, lien, encumbrance or adverse claim, and
any financing statement or similar document filed in respect of
same.
“Pledged
Collateral”
shall
have the meaning assigned to such term in Section 2.1.
“Pledged
Securities”
shall
have the meaning assigned to such term in Section 2.2(b).
“NYUCC”
shall
mean the UCC as in effect in the State of New York from time to
time.
“Secured
Obligations”
means
all obligations owing by Borrower to the Lenders and the Collateral Agent
arising under the Term Loan Agreement including, for the avoidance of doubt,
any
liability resulting from an amendment thereof, whether present or future, actual
or contingent. The term includes, without limitation, interest accruing during
the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such
proceeding.
“Secured
Party”
means
the Administrative Agent, the Arrangers, the Collateral Agent, a Lender and
any
receiver appointed in connection with any bankruptcy proceeding.
“Securities
Act”
shall
have the meaning assigned to such term in Section 8.1(e).
“Security
Interest”
means
the security interest granted pursuant to Section 2.1, as well as any other
security interests created or assigned as additional security for the Secured
Obligations pursuant to the provisions of this Pledge Agreement.
“UCC”
means
the Uniform Commercial Code as in effect in any jurisdiction.
1.3 Rules
of Interpretation.
The
rules of interpretation specified in Section 1 of the Term Loan Agreement
shall be applicable to this Pledge Agreement. References to “Sections,”
“Clauses,” “Exhibits” and “Schedules” shall be to Sections, Clauses, Exhibits
and Schedules, respectively, of this Pledge Agreement unless otherwise
specifically provided. Any of the terms defined in this Pledge Agreement may,
unless the context otherwise requires, be used in the singular or the plural
depending on the reference. All references to statutes and related regulations
shall include (unless otherwise specifically provided herein) any amendments
of
same and any successor statutes and regulations.
| 2. |
PLEDGE
|
2.1 Grant
of Security Interest.
To
secure the payment or performance, as the case may be, in full of the Secured
Obligations, whether at stated maturity, by acceleration or otherwise, Pledgor
hereby pledges to Collateral Agent, and grants to Collateral Agent, in each
case
on behalf of the Lenders and the Collateral Agent, a first priority Security
Interest in the collateral described in Section 2.2 (collectively, the
“Pledged
Collateral”).
2.2 Description
of Pledged Collateral.
(a) The
Pledged Collateral is described as follows and on any separate schedules at
any
time furnished by Pledgor to Collateral Agent in connection herewith (which
schedules are hereby deemed part of this Pledge Agreement):
(i) all
right, title and interest of Pledgor, whether now existing or hereafter arising,
in (i) the American depository shares described in Schedule 1 hereto
and the underlying Common Shares in which such American depository shares
represent an interest, including in each case, warrants to purchase such
depositary shares and Common Shares and any other rights in respect of any
such
depository shares and Common Shares, and (ii) all certificates, instruments
or other documents evidencing or representing the same;
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(ii) all
right, title and interest of Pledgor, whether now existing or hereafter arising,
in and to all present and future payments, proceeds, dividends, distributions,
instruments, compensation, property, assets, interests and rights in connection
with or related to the collateral listed in sub-section (i) above
(including all rights arising under depositary or similar agreements), and
all
monies due or to become due and payable to Pledgor in connection with or related
to such collateral or otherwise paid, issued or distributed from time to time
in
respect of or in exchange therefor, and any certificate, depositary receipt,
instrument or other document evidencing or representing the same (including,
without limitation, all proceeds of dissolution or liquidation);
and
(iii) all
proceeds of all of the foregoing, of every kind, and all proceeds of such
proceeds.
(b) The
certificates, instruments, depositary receipts, underlying shares of stock
or
other documents evidencing or representing the foregoing shall be collectively
referred to herein as the “Pledged
Securities.”
2.3 Delivery
of Pledged Securities, Etc. If
at any
time any Pledged Securities are represented by certificated securities, such
certificated securities shall be in bearer form or, if in registered form,
shall
be issued in the name of Collateral Agent or endorsed to Collateral Agent or
delivered to the Collateral Agent accompanied by an undated stock power or
similar transfer power related thereto, duly endorsed in blank.
2.4 Registration.
Without
limitation of the foregoing, at any time and from time to time upon the
occurrence and during the continuance of any Event of Default, Collateral Agent
may cause all or any of the Pledged Securities to be transferred to or
registered in its name or the name of its nominee or nominees.
2.5 Authorization
to File Financing Statements.
Pledgor
hereby irrevocably authorizes Collateral Agent at any time and from time to
time
to file in any jurisdiction in which the UCC has been adopted any initial
financing statements and amendments thereto that (a) describe the Pledged
Collateral, and (b) contain any other information required by part 5
of Article 9 of the UCC for the sufficiency or filing office acceptance of
any initial financing statement or amendment, including whether Pledgor is
an
organization, the type of organization and any organization identification
number issued to Pledgor. Pledgor agrees to furnish any such information to
Collateral Agent promptly upon reasonable request.
| 3. |
REPRESENTATIONS
AND WARRANTIES OF PLEDGOR
|
Pledgor
hereby represents and warrants to Collateral Agent that:
3.1 Pledgor’s
Legal Status.
(a) Pledgor is an organization, as set forth in Schedule 2 hereto;
(b) such organization is of the type, and is organized in the jurisdiction,
set forth in Schedule 2 hereto; and (c) Schedule 2 hereto sets
forth Pledgor’s organizational identification number or states that Pledgor has
none.
3.2 Pledgor’s
Legal Name.
Pledgor’s exact legal name is that set forth in Schedule 2 hereto and on
the signature page hereof.
3.3 Title
to Collateral.
The
Pledged Collateral is owned by Pledgor free and clear of any Lien, except for
Liens expressly permitted by the Term Loan Agreement. Pledgor has not filed
or
consented to the filing of (a) any financing statement or analogous
document under the UCC or any other applicable laws covering any Pledged
Collateral or (b) any assignment in which Pledgor assigns any Pledged
Collateral or any security agreement or similar instrument covering any Pledged
Collateral with any foreign governmental, municipal or other office, which
financing statement or analogous document, assignment, security agreement or
similar instrument is still in effect, except, in each case, for Liens expressly
permitted pursuant to the Term Loan Agreement.
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3.4 Pledged
Collateral.
Set
forth on Schedule 1 hereto is a complete and accurate list and description
of all the Pledged Collateral.
3.5 Percentage
Ownership.
With
respect to the Common Shares identified on Schedule 1, the Pledged
Securities of Buenaventura constitute the percentage of the outstanding equity
of Buenaventura as indicated on Schedule 1 hereto. With respect to the
depositary shares identified on Schedule 1, the Pledged Securities
represent all outstanding interests or rights with respect to the Common
Shares.
3.6 Due
Authorization, Etc. of Stock.
The
Common Shares listed on Schedule 1 hereto have been duly authorized and
validly issued and are fully paid and non-assessable and are not subject to
any
options to purchase or similar rights of any person.
3.7 Required
Consents.
Except
as may be required in connection with any disposition of any portion of the
Pledged Securities by laws affecting the offering and sale of securities
generally, no consent of any person (including, without limitation, partners,
shareholders or creditors of Pledgor or of any subsidiary of Pledgor) and no
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing (other than the filing of a UCC financing statement
in respect of Pledged Securities, if any, that are not in the control of
Collateral Agent) or declaration with, any governmental instrumentality is
required in connection with (i) the execution, delivery, performance,
validity or enforceability of this Pledge Agreement or (ii) the perfection
or maintenance of the Security Interest created hereby (including the first
priority nature of such Security Interest).
| 4. |
COVENANTS
OF PLEDGOR
|
4.1 Pledgor’s
Legal Status.
Pledgor
shall not change its type of organization, jurisdiction of organization or
other
legal structure.
4.2 Pledgor’s
Name.
Without
providing at least 30 days prior written notice to Collateral Agent,
Pledgor shall not change its name.
4.3 Pledgor’s
Organizational Number.
Without
providing at least 30 days prior written notice to Collateral Agent,
Pledgor shall not change its organizational identification number if it has
one.
If Pledgor does not have an organizational identification number and later
obtains one, Pledgor shall forthwith notify Collateral Agent of such
organizational identification number.
4.4 Title
to Pledged Collateral.
(a) Except
for the Security Interest herein granted and Liens permitted by the Term Loan
Agreement, Pledgor shall be the beneficial owner of the Pledged Collateral
free
from any Lien, and Pledgor, at its sole cost and expense, shall defend the
same
against all claims and demands of all persons at any time claiming the same
or
any interests therein adverse to Collateral Agent; and
(b) Pledgor
shall not sell or otherwise dispose of, or pledge, mortgage or create, or suffer
to exist a Lien on, the Pledged Collateral in favor of any person other than
Collateral Agent except for Liens permitted by the Term Loan Agreement and
the
inclusion of “proceeds” of the Pledged Collateral under the Security Interest
granted herein shall not be deemed a consent by Collateral Agent to any sale
or
other disposition of any Pledged Collateral.
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4.5 Taxes.
Pledgor
shall pay promptly when due all taxes, assessments, governmental charges and
levies upon the Pledged Collateral or incurred in connection with the Pledged
Collateral or incurred in connection with this Pledge Agreement.
4.6 Further
Assurances.
Pledgor
will, from time to time, at its expense, promptly execute and deliver all
further instruments and documents and take all further action that Collateral
Agent may reasonably request, in order to perfect and protect any Security
Interest granted or purported to be granted hereby or to enable Collateral
Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral.
| 5. |
VOTING
RIGHTS AND CERTAIN PAYMENTS PRIOR TO EVENT OF
DEFAULT
|
5.1 Voting
Rights Prior to an Event of Default.
So long
as no Event of Default shall have occurred and be continuing, Pledgor shall
be
entitled to exercise, as it shall think fit, but in a manner not inconsistent
with the terms hereof, the voting power with respect to the Pledged Collateral
of Pledgor (provided
that, under Peruvian law on the date hereof, Pledgor has no rights to vote
so
long as it is a subsidiary of the Borrower),
and for
that purpose Collateral Agent shall (if any Pledged Securities shall be
registered in the name of Collateral Agent or its nominee) timely execute or
cause to be executed from time to time, at the expense of Pledgor, such proxies
or other instruments in favor of Pledgor or its nominee, in such form and for
such purposes as shall be reasonably required by Pledgor and shall be specified
in a written request therefor, to enable it to exercise such voting power with
respect to the Pledged Securities (provided that, under Peruvian law on the
date
hereof, Pledgor has no rights to vote so long as it is a subsidiary of the
Borrower).
5.2 Ordinary
Payments Prior to an Event of Defaults.
So long
as no Event of Default shall have occurred and be continuing, except as
otherwise provided in Section 5.3 and Section 5.4, any and all
payments, proceeds, dividends, distributions, monies, compensation, property,
assets, instruments or rights to the extent such are permitted pursuant to
the
terms of the Term Loan Agreement, paid, issued or distributed from time to
time
in respect of the Pledged Collateral shall be paid to the Pledgor.
5.3 Extraordinary
Payments and Distributions.
(a) In
case,
upon the dissolution or liquidation (in whole or in part) of the issuer of
any
Pledged Collateral, any sum shall be paid or payable as a liquidating dividend
or otherwise upon or with respect to any of the Pledged Securities then, such
sum shall be paid by Pledgor to Collateral Agent promptly, and in any event
within ten (10) days after receipt thereof, to be held by Collateral Agent
as additional collateral hereunder and all of the same shall constitute Pledged
Collateral for all purposes hereof.
(b) In
case
any dividend consisting solely of additional stock shall be declared with
respect to any of the Pledged Collateral, or any shares of stock or fractions
thereof shall be issued pursuant to any stock split involving any of the Pledged
Collateral, or any shares shall be distributed upon, or with respect to, the
Pledged Collateral, or any additional depositary receipts shall be issued with
respect to the Pledged Collateral in each case pursuant to a recapitalization
or
reclassification of the capital of the issuer thereof, or pursuant to the
dissolution, liquidation (in whole or in part), bankruptcy or reorganization
of
such issuer, or to the merger or consolidation of such issuer with or into
another corporation, the shares so distributed, or the additional depositary
receipts so issued, shall be delivered by Pledgor to Collateral Agent promptly,
and in any event within ten (10) days after receipt thereof, to be held by
Collateral Agent as additional collateral hereunder subject to the terms of
this
Pledge Agreement, and all of the same shall constitute Pledged Collateral for
all purposes hereof.
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5.4 Voting
Rights and Ordinary Payments after an Event of Default.
Upon
the occurrence and during the continuance of any Event of Default, all rights
of
Pledgor to exercise or refrain from exercising the voting rights (if any) and
other consensual rights that it would otherwise be entitled to exercise pursuant
to Section 5.1 hereof and to receive the payments, proceeds, dividends,
distributions, monies, compensation, property, assets, instruments or rights
that Pledgor would otherwise be authorized to receive and retain pursuant to
Section 5.2 hereof shall cease, and thereupon Collateral Agent shall be
entitled to exercise all voting power (if any) with respect to the Pledged
Securities and to receive and retain, as additional collateral hereunder, which
shall constitute Pledged Collateral for all purposes hereof, any and all
payments, proceeds, dividends, distributions, monies, compensation, property,
assets, instruments or rights at any time declared or paid upon any of the
Pledged Collateral during such an Event of Default and otherwise to act with
respect to the Pledged Collateral as outright owner thereof.
| 6. |
PAYMENTS;
TURNOVER
|
(a) All
payments, proceeds, dividends, distributions, monies, compensation, property,
assets, instruments or rights that are received by Pledgor contrary to the
provisions of Section 5 shall be received and held in trust for the benefit
of Collateral Agent, shall be segregated by Pledgor from other funds of Pledgor
and shall be forthwith paid over to Collateral Agent as Pledged Collateral
in
the same form as so received (with any necessary endorsement).
(b) All
payments, proceeds, dividends, distributions, monies, compensation, property,
assets, instruments or rights that are received by Collateral Agent contrary
to
the provisions of Section 5 shall be forthwith paid over to Pledgor in the
same form as so received (with any necessary endorsement).
| 7. |
[RESERVED]
|
| 8. |
REMEDIES.
|
8.1 Disposition
upon Default and Related Provisions.
(a) Upon
the
occurrence and during the continuance of any Event of Default, Collateral Agent
may exercise in respect of the Pledged Collateral, in addition to other rights
and remedies provided for herein or otherwise available to it, all rights of
voting (if any), exercise, conversion, withdrawal or otherwise with respect
to
the Pledged Collateral and all of the rights and remedies of a secured party
on
default under the NYUCC at that time (whether or not applicable to the affected
Pledged Collateral) and may also, without obligation to resort to other
security, at any time and from time to time sell, resell, assign and deliver,
in
its sole discretion, all or any of the Pledged Collateral in one or more parcels
at the same or different times, and all right, title and interest, claim and
demand therein and right of redemption thereof, on any securities exchange
on
which any Pledged Collateral may be listed, or at public or private sale, for
cash, upon credit or for future delivery. Upon the occurrence of any Event
of
Default, at the request of Collateral Agent, Pledgor shall execute and convey
any documents required by applicable law for the conversion of any Pledged
Collateral into, or delivery of Pledged Collateral for purposes of withdrawing,
an underlying security.
(b) Without
limitation of the foregoing, upon the occurrence of an Event of Default,
Collateral Agent may exercise all rights arising with respect to depositary
receipts constituting Pledged Collateral, including making any election or
giving any notice with respect thereto under any depositary agreement and may
instruct or otherwise deal with any depositary or other intermediary for such
depositary receipts without further consent of the Pledgor.
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(c) If
any of
the Pledged Collateral is sold by Collateral Agent upon credit or for future
delivery, Collateral Agent shall not be liable for the failure of the purchaser
to purchase or pay for the same and, in the event of any such failure,
Collateral Agent may resell such Pledged Collateral. In no event shall Pledgor
be credited with any part of the proceeds of sale of any Pledged Collateral
until cash payment therefore has actually been received by Collateral
Agent.
(d) Collateral
Agent may purchase any Pledged Collateral at any public sale and, if any Pledged
Collateral is of a type customarily sold in a recognized market or is of the
type that is the subject of widely distributed standard price quotations,
Collateral Agent may purchase such Pledged Collateral at private sale, and
in
each case may make payment therefore by any means, including, without
limitation, by release or discharge of Secured Obligations in lieu of cash
payment.
(e) Pledgor
recognizes that Collateral Agent may be unable to effect a public sale of all
or
part of the Pledged Collateral consisting of securities by reason of certain
prohibitions contained in the United States Securities Act of 1933, as amended
(the “Securities
Act”),
or in
applicable Blue Sky or other state securities laws, or securities laws of any
other jurisdiction, as now or hereafter in effect, but may be compelled to
resort to one or more private sales to a restricted group of purchasers who
will
be obliged to agree, among other things, to acquire such securities for their
own account, for investment and not with a view to the distribution or resale
thereof. Pledgor agrees that any such Pledged Collateral sold at any such
private sale may be sold at a price and upon other terms less favorable to
the
seller than if sold at public sale and that each such private sale shall be
deemed to have been made in a commercially reasonable manner. Collateral Agent
shall have no obligation to delay the sale of any such securities for the period
of time necessary to permit the issuer of such securities, even if such issuer
would agree, to register such securities for public sale under the Securities
Act. Pledgor agrees that private sales made under the foregoing circumstances
shall be deemed to have been made in a commercially reasonable
manner.
(f) Pledgor
hereby acknowledges that it and Buenaventura and their respective
representatives are aware that United States securities laws may prohibit
certain persons who have material, nonpublic information concerning a company
from purchasing or selling securities of such company, or from communicating
such material, nonpublic information to any other person under circumstances
in
which it is reasonably foreseeable that such person is likely to purchase or
sell securities. In connection with any sale of any Pledged Collateral, and
to
the extent required to ensure compliance with securities laws, Collateral Agent
shall have the right to make a public disclosure in the form of a press release,
public advertisement or otherwise, of any material, nonpublic information
received from Buenaventura, any of its subsidiaries (including Pledgor) or
any
of their respective officers, directors, employees or agents, without the prior
approval by Buenaventura, its subsidiaries (including Pledgor), or any of its
or
their respective officers, directors, employees or agents. Neither Collateral
Agent nor any other Secured Party shall have any liability to Buenaventura,
its
subsidiaries (including Pledgor), or any of its or their respective officers
directors, employees, security holders or agents for any such
disclosure.
(g) No
demand, advertisement or notice, all of which are hereby expressly waived,
shall
be required in connection with any sale or other disposition of any part of
the
Pledged Collateral that threatens to decline speedily in value or that is of
a
type customarily sold on a recognized market; otherwise Collateral Agent shall
give Pledgor at least ten days’ prior notice of the time and place of any public
sale and of the time after which any private sale or other disposition is to
be
made, which notice Pledgor agrees is commercially reasonable.
(h) Collateral
Agent shall not be obligated to make any sale of Pledged Collateral if it shall
determine not to do so, regardless of the fact that notice of sale may have
been
given. Collateral Agent may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned.
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(i) The
remedies provided herein in favor of Collateral Agent shall not be deemed
exclusive, but shall be cumulative, and shall be in addition to all other
remedies in favor of Collateral Agent existing at law or in equity.
(j) To
the
extent that applicable law imposes duties on Collateral Agent to exercise
remedies in a commercially reasonable manner, Pledgor acknowledges and agrees
that it is not commercially unreasonable for Collateral Agent provided that
the
Collateral Agent is taking any action described below in a manner consistent
with the requirements of the Securities Act and any applicable Peruvian or
other
securities laws (i) so long as the same does not violate applicable law, to
advertise dispositions of Pledged Collateral through publications or media
of
general circulation; (ii) to contact other persons, whether or not in the
same business as Pledgor, for expressions of interest in acquiring all or any
portion of the Pledged Collateral; (iii) to hire one or more professional
auctioneers to assist in the disposition of Pledged Collateral; (iv) to
dispose of Pledged Collateral by utilizing Internet sites that provide for
the
auction of assets of the types included in the Pledged Collateral or that have
the reasonable capability of doing so, or that match buyers and sellers of
assets; (v) to disclaim disposition warranties; or (vi) to the extent
deemed appropriate by Collateral Agent, to obtain the services of brokers,
investment bankers, consultants and other professionals to assist Collateral
Agent in the disposition of any of the Pledged Collateral. Pledgor acknowledges
that the purpose of this sub-section is to provide non-exhaustive indications
of
what actions or omissions by Collateral Agent would not be commercially
unreasonable in Collateral Agent’s exercise of remedies against the Pledged
Collateral and that other actions or omissions by Collateral Agent shall not
be
deemed commercially unreasonable solely on account of not being indicated in
this sub-section . Without limiting the foregoing, nothing contained in this
sub-section shall be construed to grant any rights to Pledgor or to impose
any
duties on Collateral Agent that would not have been granted or imposed by this
Pledge Agreement or by applicable law in the absence of this sub-section
.
8.2 Collateral
Agent Appointed Attorney-in-Fact.
(a) To
effectuate the terms and provisions hereof, Pledgor hereby appoints Collateral
Agent as Pledgor’s attorney-in-fact for the purpose, from and after the
occurrence and during the continuance of an Event of Default, of carrying out
the provisions of this Pledge Agreement and taking any action and executing
any
instrument that Collateral Agent from time to time, in Collateral Agent’s
reasonable discretion, may deem necessary or advisable to accomplish the
purposes of this Pledge Agreement. Without limiting the generality of the
foregoing, Collateral Agent shall, from and after the occurrence and during
the
continuance of an Event of Default, have the right and power to:
(i) receive,
endorse and collect all checks and other orders for the payment of money made
payable to Pledgor representing any interest or dividend or other distribution
or amount payable in respect of the Pledged Collateral or any part thereof
and
to give full discharge for the same;
(ii) execute
endorsements, assignments or other instruments of conveyance or transfer with
respect to all or any of the Pledged Collateral;
(iii) exercise
all rights of Pledgor as owner of the Pledged Collateral including, without
limitation, the right to sign any and all amendments, instruments, certificates,
proxies, and other writings necessary or advisable to exercise all rights and
privileges of (or on behalf of) the owner of the Pledged Collateral, including,
without limitation, all voting rights (if any) with respect to the Pledged
Securities;
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(iv) ask,
demand, collect, xxx for, recover, compound, receive and give acquittance and
receipts for moneys due and to become due under or in respect of any of the
Pledged Collateral;
(v) file
any
claims or take any action or institute any proceedings that Collateral Agent
may
deem necessary or desirable for the collection of any of the Pledged Collateral
or otherwise to enforce the rights of Collateral Agent with respect to any
of
the Pledged Collateral; and
(vi) generally
to sell, transfer, pledge, make any agreement with respect to or otherwise
deal
with any of the Pledged Collateral as fully and completely as though Collateral
Agent were the absolute owner thereof for all purposes, and to do, at Collateral
Agent’s option and Pledgor’s expense, at any time or from time to time, all acts
and things that Collateral Agent deems reasonably necessary to protect, preserve
or realize upon the Pledged Collateral.
(b) Pledgor
hereby ratifies and approves all acts of Collateral Agent made or taken pursuant
to this Section 8.2 (provided,
that
Pledgor does not, by virtue of such ratification, release any claim that Pledgor
may otherwise have against Collateral Agent for any such acts made or taken
by
Collateral Agent through gross negligence or wilful misconduct). Neither
Collateral Agent nor any person designated by Collateral Agent shall be liable
for any acts or omissions or for any error of judgment or mistake of fact or
law, except such as may result from Collateral Agent’s gross negligence or
wilful misconduct.
(c) All
powers granted pursuant to this Section 8.02 are coupled with an interest
and are irrevocable so long as this Pledge Agreement shall remain in
force.
8.3 Collateral
Agent’s Duties; Responsibility.
(a) Collateral
Agent shall have the duty to exercise reasonable care in the custody and
preservation of any Pledged Collateral in its possession, which duty shall
be
fully satisfied if such Pledged Collateral is accorded treatment substantially
equal to that which Collateral Agent accords its own property.
(b) Except
as
hereinabove specifically set forth, Collateral Agent shall have no obligation
to
assume any responsibility for, or obligation or duty with respect to, any
Pledged Collateral or its use of any nature or kind, or any matter or
proceedings arising out of or relating thereto, including, without limitation,
any obligation or duty to take any action to collect, preserve or protect its
or
Pledgor’s rights in the Pledged Collateral or against any prior parties thereto,
but the same shall be at Pledgor’s sole risk and responsibility at all
times.
(c) By
accepting the benefits hereof, each Secured Party agrees that (i) neither the
Collateral Agent, nor any of its directors, officers or employees or agents,
shall be liable for any action taken or omitted to be taken by them hereunder
or
under the other Loan Documents, except for their own gross negligence or willful
misconduct, (ii) the Collateral Agent shall not be responsible to the Secured
Parties for any statements, warranties or representations herein, the Term
Loan
Agreement, the other Loan Documents or any other documents contemplated thereby
(collectively, the “Financing
Documents”),
or
the value, condition, priority, ownership or sufficiency of the Pledged
Collateral or the legality, validity or enforceability of any of the Financing
Documents, nor shall the Collateral Agent be bound to ascertain or inquire
as to
the performance or observance of any of the terms, conditions, covenants or
agreements provided for in the Financing Documents, (iii) the Collateral Agent
shall not have any obligation to determine whether there has occurred any event
of default or default under any Financing Documents, and the Collateral Agent
shall not be charged with knowledge of the happening of any event of default
or
potential event of default unless it shall have been notified thereof in writing
by the Borrower or a Secured Party, and (iv) the Collateral Agent shall be
entitled to reply upon any notice, consent, certificate, statements or other
document believed by it to be genuine and correct and to have been signed and
sent by the proper person or persons and, in respect of legal matters, upon
the
opinion of counsel selected by it. The Collateral Agent may seek instructions
from the Required Lenders as to the exercise of its rights, powers and remedies.
If the Collateral Agent shall be instructed by the Required Lenders to take
any
action hereunder, the Collateral Agent, may before taking such action, require
that the Required Lenders indemnify the Collateral Agent, in a manner reasonably
satisfactory to the Collateral Agent, for any liability which the Collateral
Agent may incur in taking such action. In the absence of any such instructions,
the Collateral Agent may refrain from acting, and will have no liability for
refraining from taking any action.
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(d) Nothing
in this Pledge Agreement, expressed or implied, is intended to or shall be
so
construed as to impose upon the Collateral Agent any obligations in respect
of
any Financing Document or Pledged Collateral except as expressly set forth
herein or therein. With respect to the credit extended by it, the Collateral
Agent shall have the same rights and powers under the Financing Documents as
any
other Lender and may exercise the same as though it were not the Collateral
Agent, and the Collateral Agent and its affiliates may accept deposits from,
lend money to and generally engage in any kind of business with the Borrower
and
the Guarantor as if it were not the Collateral Agent.
(e) The
Collateral Agent may resign at any time by giving written notice thereof to
the
Administrative Agent and the Borrower, and provided that no such registration
shall take effect until a successor Collateral Agent has been appointed and
has
agreed to act as such under this Pledge Agreement. Upon any such resignation,
the Required Lenders shall promptly appoint a successor to the Collateral Agent,
which decision of the Required Lenders shall be binding upon all of the Secured
Parties. Upon the acceptance of any appointment as Collateral Agent hereunder
by
a successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations. After any retiring Collateral
Agent’s resignation as Collateral Agent, the provisions of this Pledge Agreement
shall inure to its benefit as to any actions taken or omitted to be taken while
it was Collateral Agent.
(f) Pledgor
waives any restriction or obligation imposed on Collateral Agent under
Section 9-207(c)(1) of the NYUCC.
8.4 Prior
Recourse.
Collateral Agent’s prior recourse to any Pledged Collateral shall not constitute
a condition of any demand, suit or proceeding for payment or collection of
the
Secured Obligations.
8.5 Collateral
Agent May Perform.
If
Pledgor fails to perform any agreement contained herein, Collateral Agent may
itself perform or cause performance of such agreement, and the expenses of
Collateral Agent incurred in connection therewith shall be treated as a Secured
Obligation. Collateral Agent will endeavor to give Pledgor prior written notice
of any such performance; provided
that
failure to give prior written notice shall not invalidate any action taken
by
Collateral Agent or give rise to any obligation or liability on the part of
Collateral Agent.
| 9. |
SURETYSHIP
WAIVERS BY PLEDGOR; OBLIGATIONS
ABSOLUTE
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(a) Pledgor
waives demand, notice, protest, notice of acceptance of this Pledge Agreement,
notice of loans made, credit extended, Pledged Collateral received or delivered
or other action taken in reliance hereon and all other demands and notices
of
any description thereof (except as expressly required hereunder), all in such
manner and at such time or times as Collateral Agent may deem advisable.
Collateral Agent shall have no duty as to the collection or protection of the
Pledged Collateral or any income thereon, nor as to the preservation of rights
against prior parties, nor as to the preservation of any rights pertaining
thereto beyond the safe custody thereof as set forth in
Section 8.3.
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(b) All
rights of Collateral Agent hereunder, the Security Interests and all obligations
of Pledgor hereunder shall be absolute and unconditional irrespective of
(a) any lack of validity or enforceability of the Term Loan Agreement, any
agreement with respect to any of the Secured Obligations or any other agreement
or instrument relating to any of the foregoing, (b) any change in the time,
manner or place of payment of, or in any other term of, all or any of the
Secured Obligations, or any other amendment or waiver of, or any consent to
any
departure from, the Term Loan Agreement or any other agreement or instrument,
(c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of, or consent under, or
departure from, or any acceptance of partial payment thereon, or settlement,
compromise or adjustment of any Secured Obligation or of any guarantee, securing
or guaranteeing all or any of the Secured Obligations, or (d) any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Pledgor in respect of the Secured Obligations or this Pledge
Agreement.
| 10. |
MARSHALLING
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Collateral
Agent shall not be required to marshal any present or future collateral security
(including but not limited to this Pledge Agreement and the Pledged Collateral)
for, or other assurances of payment of, the Secured Obligations or any of them
or to resort to such collateral security or other assurances of payment in
any
particular order, and all of its rights hereunder and in respect of such
collateral security and other assurances of payment shall be cumulative and
in
addition to all other rights, however existing or arising. To the extent that
it
lawfully may, Pledgor hereby agrees that it shall not invoke any law relating
to
the marshalling of collateral which might cause delay in or impede the
enforcement of Collateral Agent’s rights under this Pledge Agreement or under
any other instrument creating or evidencing any of the Secured Obligations
or
under which any of the Secured Obligations is outstanding or by which any of
the
Secured Obligations is secured or payment thereof is otherwise assured, and,
to
the extent that it lawfully may, Pledgor hereby irrevocably waives the benefits
of all such laws.
| 11. |
PROCEEDS
OF DISPOSITIONS
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After
deducting all expenses payable to Collateral Agent, including, without
limitation, pursuant to Section 7, the residue of any proceeds of
collection or sale of the Secured Obligations or Pledged Collateral shall,
to
the extent actually received in cash, be applied to the payment of the remaining
Secured Obligations in such order or preference as provided in the Term Loan
Agreement, proper allowance and provision being made for any Secured Obligations
not then due or held as additional Pledged Collateral. Upon the final payment
and satisfaction in full of all of the Secured Obligations and the termination
of all commitments under the Term Loan Agreement and after making any payments
required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the NYUCC, any excess
shall be returned to Pledgor, and in any event Pledgor shall remain liable
for
any deficiency in the payment of the Secured Obligations.
| 12. |
REINSTATEMENT
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The
obligations of Pledgor pursuant to this Pledge Agreement shall continue to
be
effective or automatically be reinstated, as the case may be, if at any time
payment of any of the Secured Obligations is rescinded or otherwise must be
restored or returned by Collateral Agent upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Pledgor or any other obligor
or
otherwise, all as though such payment had not been made.
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| 13. |
MISCELLANEOUS
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13.1 Notices.
Except
as otherwise provided herein, whenever it is provided herein that any notice,
demand, request, consent, approval, declaration or other communication shall
or
may be given to or served upon any of the parties by any other party, or
whenever any of the parties desires to give and serve upon any other party
any
communication with respect to this Pledge Agreement, each such notice, demand,
request, consent, approval, declaration or other communication shall be in
writing and shall be given in the manner and to the address, and deemed
received, as provided for in the Term Loan Agreement. Delivery by telecopier
pdf
or email of an executed counterpart of any amendment or waiver of any provision
of this Pledge Agreement or any Schedule shall be effective as delivery of
an
original executed counterpart thereof.
13.2 Governing
Law; Consent to Jurisdiction.
THIS
PLEDGE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. THE PLEDGOR AND COLLATERAL AGENT EACH IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES
OF AMERICA SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF,
IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE AGREEMENT
OR THE TERM LOAN AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT,
AND THE PLEDGOR AND COLLATERAL AGENT EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN
SUCH FEDERAL COURT. THE PLEDGOR AND COLLATERAL AGENT EACH AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. NOTHING IN THIS PLEDGE AGREEMENT SHALL AFFECT ANY RIGHT THAT
COLLATERAL AGENT OR ANY OTHER SECURED PARTY MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO THIS PLEDGE AGREEMENT OR THE TERM LOAN
AGREEMENT AGAINST THE PLEDGOR OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.
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13.3 Waiver
of Jury Trial, Etc.
PLEDGOR
AND COLLATERAL AGENT EACH WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO
ANY
ACTION OR CLAIM ARISING OUT OF ANY LITIGATION OR DISPUTE DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE AGREEMENT, ANY RIGHTS
OR
OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS.
EXCEPT AS PROHIBITED BY LAW, PLEDGOR AND COLLATERAL AGENT EACH WAIVES ANY RIGHT
WHICH IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION OR DISPUTE REFERRED
TO
IN THE PRECEDING SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. PLEDGOR
AND COLLATERAL AGENT EACH CERTIFIES THAT IT NOR ANY REPRESENTATIVE, AGENT OR
ATTORNEY OF IT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT,
IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND ACKNOWLEDGES
THAT, IN ENTERING INTO THE TERM LOAN AGREEMENT TO WHICH IT IS A PARTY, IT IS
RELYING UPON, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED
IN
THIS SECTION 13.3.
13.4 Counterparts.
This
Pledge Agreement may be executed in two or more separate counterparts, each
of
which shall constitute an original and all of which shall collectively and
separately constitute one and the same agreement.
13.5 Headings.
The
headings of each section of this Pledge Agreement are for convenience only
and
shall not define or limit the provisions thereof.
13.6 No
Strict Construction.
The
parties hereto have participated jointly in the negotiation and drafting of
this
Pledge Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Pledge Agreement shall be construed as if drafted
jointly by the parties hereto and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any provisions
of this Pledge Agreement.
13.7 Severability.
In the
event any one or more of the provisions contained in this Pledge Agreement
should be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not
in
and of itself affect the validity of such provision in any other
jurisdiction).
13.8 Survival
of Agreement.
All
covenants, agreements, representations and warranties made by Pledgor herein
and
in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Pledge Agreement shall be considered to have been
relied upon by Collateral Agent and shall survive the execution and delivery
of
the Term Loan Agreement and the advance of all extensions of credit contemplated
thereby, regardless of any investigation made by Collateral Agent, and shall
continue in full force and effect until this Pledge Agreement shall terminate
(or thereafter to the extent provided herein).
13.9 Binding
Effect; Several Agreement.
This
Pledge Agreement is binding upon Pledgor and Collateral Agent and their
respective successors and assigns, and shall inure to the benefit of Pledgor,
Collateral Agent and their respective successors and assigns, except that
Pledgor shall have no right to assign or transfer its rights or obligations
hereunder or any interest herein (and any such assignment or transfer shall
be
void) except as expressly contemplated by this Pledge Agreement or the Term
Loan
Agreement.
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13.10 Waivers;
Amendment.
(a) No
failure or delay of Collateral Agent in exercising any power or right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof
or
the exercise of any other right or power. The rights and remedies of Collateral
Agent hereunder and of Collateral Agent and the Lenders under the Term Loan
Agreement are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provisions of this Pledge Agreement
or consent to any departure by Pledgor therefrom shall in any event be effective
unless the same shall be permitted by sub-section (b) below, and then such
waiver or consent shall be effective only in the specific instance and for
the
purpose for which given. No notice to or demand on Pledgor in any case shall
entitle Pledgor to any other or further notice or demand in similar or other
circumstances.
(b) Neither
this Pledge Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by Collateral Agent and Pledgor, subject to any consent required in accordance
with the Term Loan Agreement.
13.11 Termination.
Notwithstanding any provision to the contrary under Sections 9-207, 9-208
or 9-209 of the NYUCC, this Pledge Agreement and the Security Interest shall
terminate when all the Secured Obligations (other than contingent indemnity
obligations in respect of which no claim has been made) have been paid in cash
in full, at which time Collateral Agent shall execute and deliver to Pledgor
or
Pledgor’s designee, at the Pledgor’s expense, all UCC termination statements and
similar documents that Pledgor shall reasonably request from time to time to
evidence such termination and all rights to the Pledged Collateral shall revert
to the Pledgor. Upon any sale, other transfer or release (i) by the Pledgor
of any Pledged Collateral that is permitted under the Term Loan Agreement to
any
Person, or (ii) of any Pledged Collateral pursuant to the enforcement of the
Security Interests described herein by the Collateral Agent, the Security
Interest in such Pledged Collateral shall be released and the Collateral Agent
agrees to execute and deliver, at the Pledgor’s expense, all documents that the
Pledgor shall reasonably request to evidence such termination or release. Any
execution and delivery of termination statements or documents pursuant to this
Section 13.11 shall be without recourse to or warranty by Collateral
Agent.
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IN
WITNESS WHEREOF, intending to be legally bound, Pledgor has caused this Pledge
Agreement to be duly executed as of the date first above written.
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COMPAÑÍA
MINERA CONDESA S.A.
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as
Pledgor
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By:
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Name:
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Title:
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Accepted
and Agreed:
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BANCO
DE CRÉDITO DEL PERÚ
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as
Collateral Agent
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By:
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Name:
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Title:
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