EXHIBIT 10.2.9
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of March 8,
2002, made by Xxxxxxxx Minerals (USA), Inc., a Delaware corporation, JOQ
Canada, Inc., a Delaware corporation and Xxxxxxxx Canada Holdings, LLC, a
Delaware limited liability company (each a "Pledgor" and collectively, the
"Pledgors"), in favor of The Bank of Nova Scotia, as agent (together with any
successor(s) thereto in such capacity, the "Agent") for each of the Lender
Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Credit Agreement, dated as of March 8,
2002 (together with all amendments and other modifications, if any, from time
to time thereafter made thereto, the "2002 Credit Agreement"), among the
Borrower, the various financial institutions as are or may become parties
hereto (collectively, the "2002 Lenders"), The Bank of Nova Scotia and
Bayerische Landesbank Girozentrale, as Lead Arrangers and Bookrunners on the
Revolving Facility, Xxxxxxx Xxxxx Xxxxxx Inc. and Deutsche Banc Alex. Xxxxx
Inc., as Lead Arrangers and Bookrunners on the Term B Facility, The Bank of
Nova Scotia, as Joint Administrative Agent and Funding Agent, Citicorp USA,
Inc., as Joint Administrative Agent, Bank of America, National Association and
Credit Suisse First Boston, Cayman Islands Branch as Lead Arrangers and
Syndication Agents for the Revolving Facility and TD Securities (USA) Inc. as
Lead Arranger for the Revolving Facility, the Lenders have extended Commitments
to make Loans and to issue Letters of Credit to the Borrower; and
WHEREAS, pursuant to that certain Second Amended and Restated Credit
Agreement, dated as of May 23, 2000 (together with all amendments and other
modifications, if any, from time to time made thereto, the "2000 Credit
Agreement" and together with the 2002 Credit Agreement, the "Credit
Agreements"), among the Borrower, the various financial institutions as are or
may become parties thereto (collectively, the "2000 Lenders" and together with
the 2002 Lenders, the "Lenders"), Bayerische Landesbank Girozentrale as
co-arranger and syndication agent for the 2000 Lenders and The Bank of Nova
Scotia as lead arranger and administrative agent for the 2000 Lenders; and
WHEREAS, as a condition precedent to the making of the initial Loans under
the 2002 Credit Agreement and to continue making loans under the 2000 Credit
Agreement, the Pledgors are required to execute and deliver this Pledge
Agreement; and
WHEREAS, each Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of the Pledgors to execute this
Pledge Agreement inasmuch as each Pledgor will derive substantial direct and
indirect benefits from the Loans made and Letters of Credit issued from time to
time to the Borrower by the Lenders pursuant to the Credit Agreements;
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans)
and to issue Letters of Credit for the account of the Borrower pursuant to the
Credit Agreements, the each Pledgor agrees, for the benefit of each Lender
Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreements" is defined in the second recital.
"Distributions" means all stock dividends, liquidating dividends, shares
of stock resulting from (or in connection with the exercise of) stock splits,
reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect to
any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender Party" means, as the context may require, any Lender, Issuer or
the Agent and each of its respective successors, transferees and assigns under
either of the Credit Agreements.
"Lenders" is defined in the second recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares and all other pledged shares
of capital stock, all other securities, all assignments of any amounts due or
to become due, all other instruments which are now being delivered by the
Pledgors to the Agent or may from time to time hereafter be delivered by the
Pledgors to the Agent for the purpose of pledge under this Pledge Agreement or
any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Attachment 1 hereto
as the issuer of the Pledged Shares identified opposite the name of such
Person.
"Pledged Shares" means all shares of capital stock of any Pledged Share
Issuer which are delivered by the Borrower to the Agent as Pledged Property
hereunder.
"Secured Obligations" is defined in Section 2.2.
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"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State of
New York.
SECTION 1.2. Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Pledge Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreements.
SECTION 1.3. U.C.C. Definitions. Unless otherwise defined herein or
the context otherwise requires, terms for which meanings are provided in the
U.C.C. are used in this Pledge Agreement, including its preamble and recitals,
with such meanings.
ARTICLE II
PLEDGE
SECTION 2.1. Grant of Security Interest. Each Pledgor hereby pledges,
hypothecates, assigns, charges, mortgages, delivers, and transfers to the
Agent, for its benefit and the ratable benefit of each of the Lender Parties,
and hereby grants to the Agent, for its benefit and the ratable benefit of the
Lender Parties, a continuing security interest in, all of the following
property (the "Collateral"):
(a) all issued and outstanding shares of capital stock identified on
Attachment 1 hereto of each Pledged Share Issuer identified on Attachment
1 hereto;
(b) and the certificates representing the Pledged Shares and all
dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of the Pledged Shares;
(c) all additional shares of stock of any issuer of the Pledged
Shares from time to time acquired by any Pledgor in any manner, and the
certificates representing such additional shares, and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares; and
(d) all proceeds of any of the foregoing.
SECTION 2.2. Security for Obligations. This Pledge Agreement secures the
payment and performance in full of all Obligations of the Borrower now or
hereafter existing under the Credit Agreements, the Notes, each Letter of
Credit and each other Loan Document to which the Borrower is or may become a
party, whether for principal, interest, costs, fees, expenses, or otherwise,
and all obligations of the Pledgors now or hereafter existing under this Pledge
Agreement and each other Loan Document to which it is or may become a party
(all such obligations of the Borrower and the Pledgors being the "Secured
Obligations").
SECTION 2.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares, shall be delivered to and held by or on behalf of the Agent pursuant
hereto, shall be in suitable form for transfer by
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delivery, and shall be accompanied by all necessary instruments of transfer or
assignment, duly executed in blank.
SECTION 2.4. Intentionally Omitted.
SECTION 2.5. Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full of all
Secured Obligations and the termination of all Commitments,
(b) be binding upon each Pledgor and its successors, transferees and
assigns, and
(c) inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent and each other Lender Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any right or obligation under the Loan Documents
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all the rights and benefits in respect thereof granted to
such Lender under any Loan Document (including this Pledge Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 11.11 of each of the Credit
Agreements. Upon the indefeasible payment in full, in cash, of all Secured
Obligations and the termination of all Commitments, the security interest
granted herein shall terminate and all rights to the Collateral shall revert to
the Pledgors. Upon any such termination, the Agent will, at the Borrower's sole
expense, deliver to the Borrower, without any representations, warranties or
recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by
the Agent hereunder, and execute and deliver to each Pledgor such documents as
the Pledgors shall reasonably request to evidence such termination.
SECTION 2.6. Security Interest Absolute. All rights of the Agent and
the security interests granted to the Agent hereunder, and all obligations of
the Pledgors hereunder, shall be absolute and unconditional, irrespective of
(a) any lack of validity or enforceability of either of the Credit
Agreements, any Note or any other Loan Document,
(b) the failure of any Lender Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Borrower, any other Obligor or any other Person
under the provisions of either of the Credit Agreements, any Note,
any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of the Borrower
or any other Obligor,
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(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other extension,
compromise or renewal of any Obligation of the Borrower or any other
Obligor,
(d) any reduction, limitation, impairment or termination of any
Obligations of the Borrower or any other Obligor for any reason, including
any claim of waiver, release, surrender, alteration or compromise, and
shall not be subject to (and the Pledgors hereby waive any right to or
claim of) any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality, nongenuineness,
irregularity, compromise, unenforceability of, or any other event or
occurrence affecting, any Obligations of the Borrower, any other Obligor
or otherwise,
(e) any amendment to, rescission, waiver, or other modification of,
or any consent to departure from, any of the terms of either of the Credit
Agreements, any Note or any other Loan Document,
(f) any addition, exchange, release, surrender or non-perfection of
any collateral (including the Collateral), or any amendment to or waiver
or release of or addition to or consent to departure from any guaranty,
for any of the Obligations, or
(g) any other circumstances which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Borrower,
any other Obligor, any surety or any guarantor.
SECTION 2.7. Subrogation, etc. The Pledgors will not exercise any rights
which it may acquire by reason of any payment made hereunder, whether by way of
subrogation, reimbursement or otherwise until the prior indefeasible payment in
full, in cash, of all Obligations of the Borrower and each other Obligor. Any
amount paid to any Pledgor on account of any payment made hereunder prior to
the payment in full of all Obligations of the Borrower and each other Obligor
shall be held in trust for the benefit of the Lender Parties and each holder of
a Note and shall immediately be paid to the Lender Parties and each holder of a
Note and credited and applied against the Obligations of the Borrower and each
other Obligor, whether matured or unmatured, in accordance with the terms of
the Credit Agreements; provided, however, that if
(a) any Pledgor has made payment to the Lender Parties and each
holder of a Note of all or any part of the Obligations of the Borrower or
any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor have been
indefeasibly paid in full, in cash, and all Commitments have been
permanently terminated,
each Lender Party and each holder of a Note agrees that, at the Pledgors'
request, the Lender Parties and the holders of the Notes will execute and
deliver to the Pledgors appropriate documents (without recourse and without
representation or warranty and at the sole cost and expense of the Pledgors)
necessary to evidence the transfer by subrogation to the Pledgors of an
interest in the Obligations of the Borrower and each other Obligor resulting
from such payment by the Pledgors. In furtherance of the foregoing, for so long
as any Obligations or Commitments
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remain outstanding, the Pledgors shall refrain from taking any action or
commencing any proceeding against the Borrower or any other Obligor (or its
successors or assigns, whether in connection with a bankruptcy proceeding or
otherwise) to recover any amounts in respect of payments made under this Pledge
Agreement to any Lender Party or any holder of a Note.
SECTION 2.8. Waiver of Subrogation. Until such time as the Obligations
have been indefeasibly paid in full, in cash, and the Commitments have been
terminated, each Pledgor hereby irrevocably waives any claim or other rights
which it may now or hereafter acquire against the Borrower or any other Obligor
that arise from the existence, payment, performance or enforcement of the
Pledgors' obligations under this Pledge Agreement or any other Loan Document,
including any right of subrogation, reimbursement, exoneration, or
indemnification, any right to participate in any claim or remedy of the Lender
Parties against the Borrower or any other Obligor or any collateral which the
Agent now has or hereafter acquires, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law, including the right
to take or receive from the Borrower or any other Obligor, directly or
indirectly, in cash or other property or by set-off or in any manner, payment
or security on account of such claim or other rights. If any amount shall be
paid to any Pledgor in violation of the preceding sentence and the Obligations
shall not have been indefeasibly paid in full, in cash, and the Commitments
have not been terminated, such amount shall be deemed to have been paid to such
Pledgor for the benefit of, and held in trust for, the Lender Parties, and
shall forthwith be paid to the Lender Parties to be credited and applied upon
the Obligations, whether matured or unmatured. Each Pledgor acknowledges that
it will receive direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreements and that the waiver set forth in this
Section is knowingly made in contemplation of such benefits.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Warranties, etc. Each Pledgor represents and warrants unto
each Lender Party, as at the date of each pledge and delivery hereunder
(including each pledge and delivery of Pledged Shares) by such Pledgor to the
Agent of any Collateral, as set forth in this Article.
SECTION 3.1.1 Organization, etc. Each Pledgor is a corporation validly
organized and existing and in good standing under the laws of the State of its
organization, is duly qualified to do business and is in good standing as a
foreign organization in each jurisdiction where the nature of its business
requires such qualification and where the failure to so qualify would have a
material adverse effect on such Pledgor's ability to perform its obligations
under this Pledge Agreement or the other Loan Documents to which it is a party,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Secured Obligations
under this Pledge Agreement and each other Loan Document to which it is a party
and to own or hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION 3.1.2 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by any Pledgor of this Pledge Agreement and each other
Loan Document executed or to be executed by it are within such Pledgor's
corporate powers, have been duly authorized by all necessary corporate action,
and do not
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(a) contravene such Pledgor's Organic Documents;
(b) contravene any contractual restriction (including, without
limitation, the Senior Note Indentures), law or governmental regulation or
court decree or order binding on or affecting such Pledgor; or
(c) result in, or require the creation or imposition of, any Lien
(other than the lien created hereunder) on any of such Pledgor's
properties.
SECTION 3.1.3 Regulation, etc. Each Pledgor is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
SECTION 3.1.4 Validity, etc. This Pledge Agreement constitutes, and each
other Loan Document executed by each Pledgor will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligations of each
Pledgor enforceable in accordance with their respective terms except as
enforceability may be subject to or limited by (i) bankruptcy, insolvency,
reorganization, arrangement, moratorium or other similar laws affecting the
rights of creditors or (ii) general principles of equity, including the
possible unavailability of specific performance or injunctive relief.
SECTION 3.1.5 Ownership, No Liens, etc. Each Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) the Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except
any lien or security interest granted pursuant hereto in favor of the Agent.
SECTION 3.1.6 Valid Security Interest. The delivery of such Collateral
to the Agent is effective to create a valid, perfected, first priority security
interest in such Collateral and all proceeds thereof, securing the Secured
Obligations. No filing or other action will be necessary to perfect or protect
such security interest.
SECTION 3.1.7 As to Pledged Shares. All of the Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
sixty-five percent (65%) of all of the issued and outstanding shares of capital
stock entitled to vote in the election of the Board of Directors of the Pledged
Share Issuer.
SECTION 3.1.8 Authorization, Approval, etc. No authorization, approval,
or other action by, and no notice to or filing with, any governmental
authority, regulatory body or any other Person is required either
(a) for the pledge by any Pledgor of any Collateral pursuant to this
Pledge Agreement or for the execution, delivery, and performance of this
Pledge Agreement by any Pledgor, or
(b) for the exercise by the Agent of the voting or other rights
provided for in this Pledge Agreement, or, except with respect to any
Pledged Shares, as may be required
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in connection with a disposition of such Pledged Shares by laws affecting
the offering and sale of securities generally, the remedies in respect of
the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.9 Compliance with Laws. Each Pledgor is in compliance with
the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of any Pledgor or the value of the
Collateral or the worth of the Collateral as collateral security.
ARTICLE IV
COVENANTS
SECTION 4.1. Protect Collateral; Further Assurances, etc. No Pledgor
will sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the Agent hereunder or in favor of Restricted
Subsidiary (as such term is defined in the Xxx-0000 Xxxxxxxxx)). Each Pledgor
will warrant and defend the right and title herein granted unto the Agent in
and to the Collateral (and all right, title, and interest represented by the
Collateral) against the claims and demands of all Persons whomsoever. Each
Pledgor agrees that at any time, and from time to time, at the expense of the
Pledgors, the Pledgors will promptly execute and deliver all further
instruments, and take all further action, that may be necessary or desirable,
or that the Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Collateral.
SECTION 4.2. Stock Powers, etc. The Pledgors agree that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by the Pledgors pursuant to this Pledge Agreement will be accompanied
by duly executed undated blank stock powers, or other equivalent instruments of
transfer acceptable to the Agent. The Pledgors will, from time to time upon the
request of the Agent, promptly deliver to the Agent such stock powers,
instruments, and similar documents, satisfactory in form and substance to the
Agent, with respect to the Collateral as the Agent may reasonably request and
will, from time to time upon the request of the Agent after the occurrence of
any Event of Default, promptly transfer any Pledged Shares or other shares of
common stock constituting Collateral into the name of any nominee designated by
the Agent.
SECTION 4.3. Continuous Pledge. Subject to Section 2.4, the Pledgors
will, at all times, keep pledged to the Agent pursuant hereto all Pledged
Shares and all other shares of capital stock constituting Collateral, all
Dividends and Distributions with respect thereto, and all other Collateral and
other securities, instruments, proceeds, and rights from time to time received
by or distributable to any Pledgor in respect of any Collateral.
SECTION 4.4. Voting Rights; Dividends, etc. The Pledgors agree after
any Event of Default shall have occurred and be continuing and the Agent has
notified the Pledgors of the Agent's intention to exercise its voting power
under this Section 4.4(b)
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(i) the Agent may exercise (to the exclusion of the Pledgors)
the voting power and all other incidental rights of ownership with
respect to any Pledged Shares or other shares of capital stock
constituting Collateral and each Pledgor hereby grants the Agent an
irrevocable proxy, exercisable under such circumstances, to vote the
Pledged Shares and such other Collateral; and
(ii) promptly to deliver to the Agent such additional proxies
and other documents as may be necessary to allow the Agent to
exercise such voting power.
The Agent agrees that unless an Event of Default shall have occurred and be
continuing and the Agent shall have given the notice referred to in Section
4.4(b), the Pledgors shall have the exclusive voting power with respect to any
shares of capital stock (including any of the Pledged Shares) constituting
Collateral and the Agent shall, upon the written request of the Pledgors,
promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by the Pledgors which are necessary to allow the Pledgors
to exercise voting power with respect to any such share of capital stock
(including any of the Pledged Shares) constituting Collateral; provided,
however, that no vote shall be cast, or consent, waiver, or ratification given,
or action taken by the Pledgors that would impair any Collateral or be
inconsistent with or violate any provision of the Credit Agreements or any
other Loan Document (including this Pledge Agreement).
SECTION 4.5. Additional Undertakings. The Pledgors will not, without the
prior written consent of the Agent take or omit to take any action the taking
or the omission of which would result in any impairment or alteration of any
obligation of the maker of any instrument constituting Collateral.
ARTICLE V
THE AGENT
SECTION 5.1. Agent Appointed Attorney-in-Fact. The Pledgors hereby
irrevocably appoint the Agent the Pledgors' attorney-in-fact, with full
authority in the place and stead of each Pledgor and in the name of each
Pledgor or otherwise, from time to time in the Agent's discretion, to take any
action and to execute any instrument which the Agent may deem necessary or
advisable to accomplish the purposes of this Pledge Agreement, including
without limitation:
(a) after the occurrence and continuance of an Event of Default, to
ask, demand, collect, xxx for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in
respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause (a)
above; and
(c) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of
the Agent with respect to any of the Collateral.
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Each Pledgor hereby acknowledges, consents and agrees that the power of
attorney granted pursuant to this Section is irrevocable and coupled with an
interest.
SECTION 5.2. Agent May Perform. If any Pledgor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the reasonable expenses of the Agent incurred in
connection therewith shall be payable by the Pledgors pursuant to Section 6.4.
SECTION 5.3. Agent Has No Duty. The powers conferred on the Agent
hereunder are solely to protect its interest (on behalf of the Lender Parties)
in the Collateral and shall not impose any duty on it to exercise any such
powers. Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Agent shall have
no duty as to any Collateral or responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Property, whether or not the Agent has or
is deemed to have knowledge of such matters, or (b) taking any necessary steps
to preserve rights against prior parties or any other rights pertaining to any
Collateral.
SECTION 5.4. Reasonable Care. The Agent is required to exercise
reasonable care in the custody and preservation of any of the Collateral in its
possession; provided, however, the Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as any Pledgor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Agent to comply with any such request
at any time shall not in itself be deemed a failure to exercise reasonable care.
ARTICLE VI
REMEDIES
SECTION 6.1. Certain Remedies. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and
also may, without notice except as specified below, sell the Collateral or
any part thereof in one or more parcels at public or private sale, at any
of the Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Agent may deem commercially
reasonable. The Pledgors agree that, to the extent notice of sale shall
be required by law, at least ten days' prior notice to the Pledgors of the
time and place of any public sale or the time after which any private sale
is to be made shall constitute reasonable notification. The Agent shall
not be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Agent may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor,
and such sale may, without further notice, be made at the time and place
to which it was so adjourned.
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(b) The Agent may
(i) transfer all or any part of the Collateral into the name
of the Agent or its nominee, with or without disclosing that such
Collateral is subject to the lien and security interest hereunder,
(ii) notify the parties obligated on any of the Collateral to
make payment to the Agent of any amount due or to become due
thereunder,
(iii) enforce collection of any of the Collateral by suit or
otherwise, and surrender, release or exchange all or any part thereof,
or compromise or extend or renew for any period (whether or not longer
than the original period) any obligations of any nature of any party
with respect thereto,
(iv) endorse any checks, drafts, or other writings in the
Pledgors' name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral, and
(vi) execute (in the name, place and stead of the Pledgors)
endorsements, assignments, stock powers and other instruments of
conveyance or transfer with respect to all or any of the Collateral.
SECTION 6.2. Securities Laws. If the Agent shall determine to exercise
its right to sell all or any of the Collateral pursuant to Section 6.1, the
Pledgors agree that, upon request of the Agent, the Pledgors will, at their own
expense:
(a) execute and deliver, and cause each issuer of the Collateral
contemplated to be sold and the directors and officers thereof to execute
and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the
opinion of the Agent, advisable to register such Collateral under the
provisions of the Securities Act of 1933, as from time to time amended
(the "Securities Act"), and to cause the registration statement relating
thereto to become effective and to remain effective for such period as
prospectuses are required by law to be furnished, and to make all
amendments and supplements thereto and to the related prospectus which, in
the opinion of the Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Collateral, as requested by the Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will satisfy
the provisions of Section 11(a) of the Securities Act; and
11
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Collateral or any part thereof valid
and binding and in compliance with applicable law.
SECTION 6.3. Compliance with Restrictions. The Pledgors agree that in
any sale of any of the Collateral whenever an Event of Default shall have
occurred and be continuing, the Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgors further agree that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Agent be liable nor accountable to the
Pledgors for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
SECTION 6.4. Application of Proceeds. All cash proceeds received by the
Agent in respect of any sale of, collection from, or other realization upon,
all or any part of the Collateral may thereafter be applied (after payment of
any amounts payable to the Agent pursuant to Article III of the Credit
Agreements and Section 6.4) in whole or in part by the Agent against, all or
any part of the Secured Obligations in such order as the Agent shall elect.
Any surplus of such cash or cash proceeds held by the Agent and remaining
after payment in full of all the Secured Obligations, and the termination of
all Commitments, shall be paid over to the Pledgors or to whomsoever may be
lawfully entitled to receive such surplus.
SECTION 6.5. Indemnity and Expenses. The Pledgors hereby indemnify and
hold harmless the Agent from and against any and all claims, losses, and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses, or liabilities
resulting from the Agent's gross negligence or wilful misconduct. Upon demand,
the Pledgors will pay to the Agent the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its counsel and of
any experts and agents, which the Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreements and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of the Agent
hereunder; or
(d) the failure by any Pledgor to perform or observe any of the
provisions hereof.
12
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.1. Loan Document. This Pledge Agreement is a Loan Document
executed pursuant to the Credit Agreements and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision
of this Pledge Agreement nor consent to any departure by the Pledgors herefrom
shall in any event be effective unless the same shall be in writing and signed
by the Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which it is given.
SECTION 7.3. Protection of Collateral. The Agent may from time to time,
at its option, perform any act which the Pledgors agree hereunder to perform
and which the Pledgors shall fail to perform after being requested in writing
so to perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the Agent may
from time to time take any other action which the Agent reasonably deems
necessary for the maintenance, preservation or protection of any of the
Collateral or of its security interest therein.
SECTION 7.4. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic
communication) and, if to the Pledgors, mailed or telegraphed or delivered to
it at the address set forth below its signature hereto, if to the Agent, mailed
or delivered to it, addressed to it at the address of the Agent specified in
the 2002 Credit Agreement or, as to either party, at such other address as
shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. All such notices and
other communications shall, when mailed or telegraphed, respectively, be
effective when deposited in the mails or delivered to the telegraph company,
respectively, addressed as aforesaid.
SECTION 7.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION 7.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION 7.7. Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW
13
YORK. THIS PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION 7.8. Forum Selection and Consent to Jurisdiction. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE
AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES OR THE PLEDGORS SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR
OTHER PROPERTY MAY BE BROUGHT, AT THE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO
THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH PLEDGOR HEREBY EXPRESSLY
AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
SECTION 7.9. Waiver of Jury Trial. THE LENDER PARTIES AND THE PLEDGORS
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF THE LENDER PARTIES OR THE PLEDGORS. THE PLEDGORS ACKNOWLEDGE AND AGREE THAT
THEY HAVE RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A
14
PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER PARTIES
ENTERING INTO THE CREDIT AGREEMENTS AND EACH SUCH OTHER LOAN DOCUMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as of the day and year first above written.
XXXXXXXX CANADA HOLDINGS, LLC
a Delaware limited liability company
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
Facsimile No.:
Attention:
15
XXXXXXXX MINERALS (USA), INC.
a Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
Facsimile No.:
Attention:
16
JOQ CANADA, INC.
a Delaware corporation
By:__________________________________
Name:________________________________
Title:_______________________________
Address:
Facsimile No.:
Attention:
00
XXX XXXX XX XXXX XXXXXX
By:__________________________________
Name:________________________________
Title:_______________________________
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxxxx
with a copy to:
The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Administrative Agent
Loan Administration
Facsimile No.: (000) 000-0000
18
ATTACHMENT 1
to
Pledge Agreement
Pledged Shares
--------------
Pledged Share Issuer Class A Common Stock
-------------------- --------------------
Authorized Outstanding % of Shares
Shares Shares Pledged
---------- ----------- -----------
Calpine Canada Energy Ltd. 1,000,000,000 35,100 65%
(3,391 Class A shares pledged by Xxxxxxxx Minerals (USA), Inc.)
(16,034 Class A shares pledged by Xxxxxxxx Canada Holdings, LLC)
(3,390 Class A shares pledged by JOQ Canada, Inc.)
