COLLATERAL AGENCY AGREEMENT
Exhibit
10.6
THIS
COLLATERAL AGENCY AGREEMENT (this "Agreement")
is made
and entered into as of July 14, 2006 by AmerenEnergy Resources Generating
Company, an Illinois corporation (the "Pledgor"),
in
favor of The
Bank
of New York Trust Company, N. A.,
as
collateral agent (the "Collateral
Agent"),
for
the benefit of the Secured Parties (as defined below).
WHEREAS,
CILCORP Inc., Central Illinois Public Service Company, Illinois Power Company,
Central Illinois Light Company and the Pledgor, as borrowers, the lenders party
thereto (the "Lenders")
and
JPMorgan Chase Bank, N.A., as administrative agent (the "Agent"),
have
entered into that certain Credit Agreement dated as of July 14, 2006 (as
amended, amended and restated, supplemented or otherwise modified from time
to
time, the "Credit
Agreement"),
pursuant to which the Pledgor initially may borrow, and/or request the issuance
of letters of credit, in an aggregate amount up to $200,000,000;
WHEREAS,
the terms of the Credit Agreement require that the Pledgor (a) grant to the
Collateral Agent for the equal and ratable benefit of the Lenders a security
interest in the Collateral (as defined herein) and (b) execute and deliver
this
Agreement and the Mortgages (as defined herein) in order to secure the payment
and performance by the Pledgor of all of the Credit Obligations (as defined
herein) of the Pledgor under the Credit Agreement;
WHEREAS,
the Pledgor may incur additional secured indebtedness from time to time, to
the
extent permitted pursuant to the Credit Agreement, that is by its terms to
be
equally and ratably secured hereunder with the Credit Obligations ("Additional
Secured Debt"),
as
hereinafter provided (with any holders of Additional Secured Debt from time
to
time being herein collectively called "Additional
Debtholders"
and with
all documentation evidencing, or entered into in connection with, any Additional
Secured Debt, being herein called "Additional
Debt Documents");
and
WHEREAS,
any such Additional Secured Debt issued after the date hereof shall be secured
equally and ratably with the Credit Obligations, pursuant to a Collateral Agency
Agreement Supplement substantially in the form of Annex A hereto; and
WHEREAS,
it is a condition precedent to the commitment of the Lenders under the Credit
Agreement that the Pledgor shall have executed and delivered to the Collateral
Agent this Agreement and the Mortgages and it is to the advantage of the Pledgor
that the Lenders' commitments under the Credit Agreement become
effective.
NOW,
THEREFORE, in consideration of the premises, and in order to induce the Lenders
to make loans and to issue letters of credit for the account of the Pledgor,
the
Pledgor hereby covenants and agrees with the Collateral Agent for its benefit
and the equal and ratable benefit of the Lenders and the Additional Debtholders,
which shall be identified from time to time on Schedule I to a Collateral Agency
Agreement Supplement entered into in accordance with
Section 14.16, in each case to the extent from time to time holding Obligations
of the Pledgor (collectively, and together with the Collateral Agent, the
"Secured
Parties")
as
follows:
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SECTION
1. Definitions.
The
following terms when used in this Agreement shall have the following
meanings:
"Event
of Default"
shall
mean a "Default" (as defined in the Credit Agreement) or an "event of default"
(or correlative term) at any time under, and as defined in, the Credit Agreement
, any Additional Debt Documents or any Security Document.
"Lien"
shall
mean any mortgage, deed of trust, pledge, lien, security interest, charge or
other encumbrance or security arrangement of any nature whatsoever, whether
voluntarily or involuntarily given, including any arrangement to provide
priority or preference and any conditional sale or title retention arrangement,
and any assignment, deposit arrangement or lease intended as, or having the
effect of, security.
"Majority
Holders"
shall
mean, at any time, the holders of over 50% in aggregate principal amount of
the
outstanding Obligations; provided, that (i) the aggregate principal amount
of
the outstanding Obligations under the Credit Agreement at any time shall for
all
purposes hereof be equal to the sum of (A) the greater of the Borrower Sublimit
of the Pledgor and the Borrower Credit Exposure of the Pledgor at such time
under (and as defined in) the Credit Agreement and (B) all Credit Obligations
other than Borrower Credit Exposure of the Pledgor outstanding at such time,
and
the entire amount shall be voted as a single bloc by the Agent, and (ii) with
respect to any Additional Debt, Obligations comprised of indebtedness issued
with original issue discount, the amount outstanding at any time shall be the
face amount of such indebtedness less the remaining unamortized portion of
the
original issue discount of such indebtedness at such time as determined in
conformity with generally accepted accounting principles; and provided further
that any outstanding Obligations held by the Pledgor or affiliates of the
Pledgor shall be voted pro rata based upon the voting of holders of outstanding
Obligations other than the Pledgor or affiliates of the Pledgor.
"Mortgages"
shall
mean (i) the Mortgage, Security Agreement, Assignment of Rents and Leases and
Fixture Filing dated as of July 14, 2006 by and from the Pledgor to the
Collateral Agent relating to the X.X. Xxxxxxx plant in Bartonville, Illinois
and
(ii) the Mortgage, Security Agreement, Assignment of Rents and Leases and
Fixture Filing dated as of July 14, 2006 by and from the Pledgor to the
Collateral Agent relating to the Duck Creek plant in Canton, Illinois.
"Obligations"
shall
mean, collectively and without duplication, all the following obligations,
liabilities, sums and expenses as follows:
(i) the
Obligations (as defined in the Credit Agreement) of the Pledgor (the
"Credit
Obligations");
(ii) the
full
and prompt payment when due (whether at stated maturity, by acceleration or
otherwise) of all (x) principal of and interest on any Additional Secured Debt
and (y) all other obligations (including obligations which, but for the
automatic stay under Section 362(a) of the Bankruptcy Code, would become due),
liabilities and indebtedness (including, without limitation, indemnities, fees
and interest thereon) of the Pledgor to the Additional Debtholders in their
capacity as such (including, without limitation, interest accruing at the then
applicable rate provided in any class of Additional
2
Secured
Debt after the maturity thereof and interest accruing at the then applicable
rate provided in such Additional Secured Debt after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Pledgor, whether or not a claim for post-filing
or
post-petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred under, arising out of or in connection with any Additional
Debt Documents, and the due performance of, and compliance with, all of the
terms, conditions and agreements contained therein by the Pledgor (all such
obligations, liabilities and indebtedness described in this clause (ii) being
herein collectively called the "Additional
Debt Obligations");
(iii) (x)
any
and all sums advanced by the Collateral Agent in order to preserve the
Collateral or preserve its security interest in the Collateral in a manner
not
in violation of the terms hereof and (y) any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Collateral Agent in performing its duties hereunder,
or in any way relating to or arising out of its actions as Collateral Agent
under the Security Documents (as defined herein), or in respect of the
Collateral, including any other unreimbursed fees and expenses for which the
Collateral Agent is to be reimbursed pursuant to Section 11 hereof; except
for
those resulting solely from the Collateral Agent's own gross negligence or
willful misconduct;
(iv) in
the
event of any proceeding for the collection or enforcement of any indebtedness,
obligations, or liabilities of the Pledgor referred to in clauses (i) through
(iii) above, after an Event of Default on any of the Obligations shall have
occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale, selling or otherwise disposing of or realizing on the
Collateral or of any exercise by the Collateral Agent of its rights hereunder
or
under any of the Security Documents, together with reasonable attorneys' fees
and costs; and
(v) all
amounts paid by any of the Secured Parties as to which such Secured Party has
the right to reimbursement under Section 11 of this Agreement.
SECTION
2. Pledge.
To
secure the full and punctual payment when due and the full and punctual
performance of all of the Obligations, the Pledgor shall enter into one or
more
security agreements, pledge agreements, mortgages, deeds of trust or other
security documents, including without limitation the Mortgages (collectively,
the "Security
Documents"),
pursuant to which it will grant to the Collateral Agent, for the benefit of
the
Collateral Agent and the other Secured Parties, a security interest in the
collateral described in the Security Documents (collectively, the "Collateral").
SECTION
3. Representations
and Warranties.
The
Pledgor hereby represents and warrants on the date hereof, and upon each date
the Pledgor grants to the Collateral Agent any rights in property that
constitutes Collateral, as follows:
(a) The
Pledgor is validly existing as a corporation in good standing under the laws
of
Illinois and has the corporate power and authority required to carry on its
business as it is
3
currently
being conducted and to own, lease and operate its properties, and is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where
the
failure to be so qualified would not have a material adverse effect on the
business, financial condition or results of operations of the Pledgor.
(b) The
Pledgor is the owner of the Collateral free and clear of any Lien or claim
of
any other Person, except for the Lien created by the Security Documents and
except for any Liens that are permitted under the Security Documents.
(c) The
Pledgor has the legal right to execute and deliver and to grant the security
interest in the Collateral pursuant to the Security Documents, and the
execution, delivery and performance of this Agreement and the Security Documents
do not (x) conflict with or constitute a breach of any of the terms or
provisions of the charter or by-laws of the Pledgor or (y) constitute a
breach of any terms or provisions of, or default under, any agreement, indenture
or other instrument to which the Pledgor is a party or by which the Pledgor
or
its property is bound, or violate with any laws, administrative regulations
or
rulings or court decrees applicable to the Pledgor or its respective property
(including, without limitation, Regulations T, U and X of the Board of Governors
of the Federal Reserve System), except for any such breaches, defaults or
violations which in the aggregate could not reasonably be expected to result
in
a material adverse effect on the business, financial condition or results of
operations of the Pledgor or on the Lien on the Collateral created by the
Security Documents, or (z) result in the creation or imposition of any Lien
on
any assets of the Pledgor, other than the Liens contemplated thereby.
(d) The
Pledgor has full power and authority to enter into this Agreement and the
Security Documents and to grant a security interest in the Collateral as
provided by the Security Documents.
(e) This
Agreement and each Security Document has been duly authorized, executed and
delivered by the Pledgor and constitutes a legal, valid and binding obligation
of the Pledgor, enforceable against the Pledgor in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors' right and remedies generally and by equitable principles of
general applicability.
(f) No
consent of any other Person and no consent, authorization, approval, or other
action by, and no notice to or filing with, any governmental authority or
regulatory body, which has not been obtained by the Pledgor, is required to
be
obtained by the Pledgor either (i) for the pledge by the Pledgor of the
Collateral pursuant to the Security Documents or for the execution, delivery
or
performance of this Agreement and the Security Documents by the Pledgor, or
(ii)
for the validity or enforceability of this Agreement or the Security Documents
or the perfection or enforceability of the Collateral Agent's security interest
in the Collateral subject to the receipt of regulatory approvals under laws
applicable to the change in control of a public utility company.
(g) No
litigation, investigation or proceeding of or before any arbitrator or
governmental authority is pending or, to the best knowledge of the Pledgor,
threatened by or
4
against
the Pledgor or against any of the Pledgor's properties or revenues with respect
to this Agreement, the Security Documents or any of the transactions
contemplated hereby.
SECTION
4. Further
Assurance.
The
Pledgor will at all times cause the security interests granted pursuant to
this
Agreement to constitute valid perfected first priority security interests in
the
Collateral (subject, however, to any Liens that are permitted under the Security
Documents), and (except as otherwise specifically provided herein or in the
Security Documents) enforceable as such against all creditors of the Pledgor,
any Persons purporting to purchase any Collateral from the Pledgor and any
other
Persons whomsoever. The Pledgor will, promptly upon request by the Collateral
Agent or as necessary, execute and deliver or cause to be executed and delivered
to the Collateral Agent all such instruments and other documents, all in form
and substance satisfactory to the Collateral Agent, and take any other actions
that are necessary or desirable to perfect, continue the perfection of, or
protect the first priority of the Collateral Agent's security interest in,
the
Collateral, to protect the Collateral against the rights, claims, or interests
of third persons (except to the extent that Liens are permitted under the
Security Documents), to enable the Collateral Agent to exercise or enforce
its
rights and remedies hereunder and under the Security Documents, or otherwise
to
effect the purposes of this Agreement and the Security Documents, including
the
recording of any documents and the filing of any financing or continuation
statements. The Pledgor also hereby authorizes the Collateral Agent to record
any Lien, file any financing or continuation statements, without the signature
of the Pledgor to the extent permitted by applicable law, or take any other
action necessary or desirable to perfect and protect the security interest
in
the Collateral created under the Security Documents. The Pledgor will pay all
costs incurred in connection with any of the foregoing.
SECTION
5. Covenants.
The
Pledgor hereby covenants and agrees with the Collateral Agent and the other
Secured Parties, that from and after the date of this Agreement and until the
Obligations have been paid in full, it will be the sole beneficial owner of
the
Collateral and will not (i) except as otherwise expressly permitted hereby
or by
the Security Documents, sell, assign, transfer, convey or otherwise dispose
of,
any interest in any of the Collateral without the prior written consent of
the
Collateral Agent at the direction of the Majority Holders, (ii) create or permit
to exist any Lien upon or with respect to any of the Collateral, except for
the
security interest granted under the Security Documents and except for Liens
that
are permitted under the Security Documents, (iii) enter into any agreement
or
understanding that purports to or that may restrict or inhibit the Collateral
Agent's rights or remedies hereunder or under the Security Documents, including,
without limitation, the Collateral Agent's right to sell or otherwise dispose
of
the Collateral, or (iv) take any other action with respect to the Collateral
which would result in a violation of the Security Documents or this
Agreement.
SECTION
6. Power
of Attorney.
The
Pledgor hereby appoints and constitutes the Collateral Agent as the Pledgor's
attorney-in-fact to exercise all of the following powers upon the occurrence
and
during the continuance of an Event of Default with respect to which a Default
Notice has been delivered to the Collateral Agent in accordance with Section
10(c) hereof: (i) collection of proceeds of any Collateral; (ii) conveyance
of any item of Collateral to any purchaser thereof; (iii) giving of any notices
or recording of any Liens under Section 4 hereof; (iv) making of any payments
or
taking any acts under Section 7 hereof ; (v) paying or discharging taxes or
Liens levied or placed upon or threatened against the Collateral, the legality
or validity thereof and the amounts necessary to discharge the same to be
determined in good
5
faith
by
the Collateral Agent in its sole discretion; (vi) defend any suit, action or
proceeding brought against the Pledgor with respect to any Collateral; and
(vii)
exercise any of the rights set forth in Section 10 hereof or any Security
Document and make any agreement with respect to the Collateral or otherwise
deal
with any Collateral as fully and completely as though the Collateral Agent
were
the absolute owner thereof for all purposes. The Majority Holders, acting
through the Agent in the case of the Lenders and through the Additional
Debtholders (or, if applicable, any agent appointed for such purpose under
any
applicable Additional Debt (each such agent, an "Additional
Secured Debt Agent"))
in the
case of the Additional Secured Debt, shall provide written directions to the
Collateral Agent with respect to the taking of any such actions under this
Section 6. The Collateral Agent's authority hereunder shall include, without
limitation, the authority to execute and give receipt for any certificate of
ownership relating to the Collateral, transfer title to any item of Collateral,
sign the Pledgor's name on all financing statements or any other documents
deemed necessary or appropriate to preserve, protect or perfect the security
interest in the Collateral and to file the same, prepare, file and sign the
Pledgor's name on any notice of Lien, and to take any other actions arising
from
or incident to the powers granted to the Collateral Agent in this Agreement
or
the Security Documents. This power of attorney is coupled with an interest
and
is irrevocable by the Pledgor.
SECTION
7. Collateral
Agent May Perform.
If the
Pledgor fails to perform any agreement contained herein or in the Security
Documents, the Collateral Agent may but under no circumstances shall be
obligated to itself perform, or cause performance of, such agreement, and the
expenses of the Collateral Agent (including the reasonable fees and expenses
of
its counsel) incurred in connection therewith shall be payable by the Pledgor
pursuant to Section 11 hereof.
SECTION
8. No
Assumption of Duties; Reasonable Care.
The
rights and powers granted to the Collateral Agent hereunder are being granted
in
order to preserve and protect the security interest of the Collateral Agent
and
the other Secured Parties in and to the Collateral and shall not be interpreted
to, and shall not, impose any duties on the Collateral Agent in connection
therewith. The Collateral Agent shall be deemed to have exercised reasonable
care, under Section 9-207 of the New York Uniform Commercial Code or otherwise,
in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which the
Collateral Agent accords its own property and shall not be liable or responsible
for any loss or diminution in the value of any of the Collateral, by reason
of
the act or omission of any carrier, forwarding agency or other agent or bailee
selected by the Collateral Agent in good faith; it being understood that the
Collateral Agent shall not have any responsibility for taking any necessary
steps to preserve rights against any parties with respect to any Collateral.
The
Collateral Agent shall be accountable only for amounts that it actually receives
as a result of the exercise of such powers, and neither it nor its officers,
directors, employees or agents shall be responsible to the Pledgor for any
act
or failure to act hereunder, except for their own gross negligence or willful
misconduct. Beyond the exercise of reasonable care in the custody thereof,
the
Collateral Agent shall have no duty as to any Collateral in its possession
or
control or in the possession or control of any agent or bailee or any income
thereon or as to preservation of rights against prior parties or any other
rights pertaining thereto and the Collateral Agent shall not be responsible
for
filing any financing or continuation statements or recording
any documents or instruments in any public office at any time or times or
otherwise perfecting or maintaining the perfection of any security interest
in
the Collateral.
6
SECTION
9. Subsequent
Changes Affecting Collateral.
The
Pledgor represents to the Secured Parties that it has made its own arrangements
for keeping informed of changes or potential changes affecting the Collateral
and the Pledgor agrees that the Collateral Agent and the Secured Parties shall
have no responsibility or liability for informing the Pledgor of any such
changes or potential changes or for taking any action or omitting to take any
action with respect thereto. The Pledgor will defend the right, title and
interest of the Collateral Agent and the Secured Parties in and to the
Collateral against the claims and demands of all Persons. The Pledgor will
advise the Collateral Agent and the Secured Parties promptly, in reasonable
detail, of (i) any Lien (other than Liens that are permitted under the Security
Documents) on any Collateral which could adversely affect the ability of the
Collateral Agent to exercise any of its remedies hereunder and (ii) the
occurrence of any other event which could reasonably be expected to have a
material adverse effect on the Lien on the Collateral created by the Security
Documents.
SECTION
10. Remedies
Upon Default.
(a) If
any
Event of Default shall have occurred and be continuing with respect to which
a
Default Notice has been delivered to the Collateral Agent in accordance with
Section 10(c) hereof, and only to the extent the Majority Holders have so
directed the Collateral Agent in accordance with Section 10(c), the Collateral
Agent shall have and be entitled to exercise, in addition to all other rights
given by law or by the Security Documents, all of the rights and remedies with
respect to the Collateral of a secured party under the Uniform Commercial Code
(the "UCC")
as in
effect in the State of New York at that time or any other applicable law and
shall also be entitled, without limitation, to exercise the rights set forth
in
this Section 10(a). With respect to any Collateral that shall be in or shall
thereafter come into the possession or custody of the Collateral Agent, the
Collateral Agent may, subject to the provisions of Section 10(c) below,
sell or otherwise dispose of or cause the same to be sold or otherwise disposed
of at any broker's board or at public or private sale, in one or more sales
or
lots, for cash or on credit or for future delivery, without assumption of any
credit risk. The purchaser of any or all Collateral so sold shall thereafter
hold the same absolutely, free from any claim, encumbrance or right of any
kind
whatsoever. Unless any of the Collateral threatens to decline speedily in value
or is or becomes of a type sold on a recognized market, the Collateral Agent
will give the Pledgor reasonable notice of the time and place of any public
sale
thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Collateral conducted in conformity
with reasonable commercial practices of banks, insurance companies, commercial
finance companies or other financial institutions disposing of property similar
to the Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to
the
Pledgor as provided below in Section 14.1, at least ten days before the time
of
the sale or disposition. Any other requirement of notice, demand or
advertisement for sale is, to the extent permitted by law, waived. The
Collateral Agent or any other Secured Party may, in its own name or in the
name
of a designee or nominee, buy any of the Collateral at any public sale and,
if
permitted by applicable law, at any private sale. All expenses (including court
costs and reasonable attorneys' fees and disbursements) of, or
incident
to, the enforcement of any of the provisions hereof shall be recoverable
from
the proceeds of the sale or other disposition of the Collateral.
7
(b) The
Pledgor further agrees to use its reasonable best efforts to do or cause to
be
done all such other acts as may be necessary to make such sale or sales of
all
or any portion of the Collateral pursuant to this Section 10 valid and binding
and in compliance with any and all other applicable requirements of law. The
Pledgor further agrees that a breach of any of the covenants contained in this
Section 10 will cause irreparable injury to the Collateral Agent and the Secured
Parties, that the Collateral Agent and the Secured Parties have no adequate
remedy at law in respect of such breach and, as a consequence, that each and
every covenant contained in this Section 10 shall be specifically enforceable
against the Pledgor, and the Pledgor hereby waives and agrees not to assert
any
defenses against an action for specific performance of such covenants except
for
a defense that no default or Event of Default has occurred and is continuing
under the Credit Agreement or the Additional Debt Documents.
(c) The
Collateral Agent shall not commence or otherwise take any action or proceeding
pursuant to this Section 10 or to realize upon any or all of the Collateral
unless and until the Majority Holders, acting through the Agent in the case
of
the Lenders and through the Additional Debtholders (or, if applicable, the
Additional Secured Debt Agent) in the case of the Additional Secured Debt,
shall
have notified a responsible officer of the Collateral Agent in writing of the
occurrence of an Event of Default (a "Default
Notice")
and
shall have directed the Collateral Agent in writing to commence to enforce
this
Agreement and the Security Documents and/or to realize upon any or all of the
Collateral. Upon receipt by the Collateral Agent of any such notice and
direction, the Collateral Agent shall (i) promptly send copies thereof to all
Secured Parties and (ii) subject to the other terms and provisions of this
Agreement and the Security Documents, seek to enforce this Agreement and the
Security Documents and to realize upon the Collateral. After any such notice
and
direction has been given, the Majority Holders shall have the right to give
written directions to the Collateral Agent as to the time, place and manner
of
the taking of such actions, and the Collateral Agent shall be required to seek
to follow such directions; provided
that, at
the time of delivery of such notice, the Majority Holders shall provide the
Collateral Agent with a written calculation establishing their status as the
Majority Holders; provided,
further,
that
the Collateral Agent, prior to acting on such notice, shall request, and may
conclusively rely upon, a statement from the Agent confirming the Borrower
Sublimit of the Pledgor, the Borrower Credit Exposure of the Pledgor and the
aggregate amount of all Credit Obligations other than Borrower Credit Exposure
(in each case as defined in the Credit Agreement) outstanding at such time,
and
from the relevant Additional Secured Debt Agent or Additional Debtholder, as
applicable, confirming the principal amount of the Additional Secured Debt
outstanding, respectively; provided,
further,
that in
the absence of such notice and direction, 45 days after receipt of the Default
Notice, the Collateral Agent shall have the right to take such actions as it
deems necessary, advisable or appropriate; provided,
further,
that
each of the Secured Parties, by its acceptance of the benefits of this
Agreement, agrees that if at any time of determination such Secured Party is
a
Majority Holder, such Secured Party shall exercise its rights pursuant to this
sentence in good faith for the benefit of all of the Secured Parties; and
provided,
further,
that
the Majority Holders may give written directions to the Collateral Agent to
cease or materially curtail its efforts seeking to enforce this Agreement and
the Security Documents or to cease or materially curtail its efforts seeking
to
realize upon any or all of the Collateral. Upon the receipt by a responsible
officer of the Collateral Agent of any
such
direction to so cease, the Collateral Agent shall be required to seek to do
so,
subject to the rights of the Majority Holders on behalf of the Secured Parties
to give another written notice and direction of the type referred to above.
8
SECTION
11. Fees
and Expenses; Indemnity.
(a) The
Pledgor will, upon demand, pay to the Collateral Agent the amount of any and
all
reasonable fees and expenses (including, without limitation, the reasonable
fees
and disbursements of its counsel, of any investment banking firm, accountants,
business broker or other selling agent and of any other such experts and agents
retained by the Collateral Agent, including the allocated costs of inside
counsel, which compensation, expenses and disbursements shall be set forth
in
sufficient written detail to the Pledgor) that the Collateral Agent may incur
in
connection with (i) the preparation, execution and administration of this
Agreement and the Security Documents, and any amendments hereto or thereto,
(ii)
the custody or preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or enforcement
of
any of the rights of the Collateral Agent hereunder or under the Security
Documents or (iv) the failure by the Pledgor to perform or observe any of the
provisions hereof or of any Security Document, except, however, any such
expense, disbursement or fee determimed to have been caused by the Collateral
Agent's own gross negligence or willful misconduct.
(b) The
Pledgor shall fully indemnify and hold harmless each of the Collateral Agent
and
each other Secured Party and their respective successors, assigns, employees,
agents, servants and representatives (including the Agent and any Additional
Secured Debt Agent) hereunder (individually an "Indemnitee",
and
collectively the "Indemnitees")
from
and against any and all costs, expenses, claims, losses, damages and liabilities
of any kind or nature whatsoever incurred by such Indemnitee, arising out of
or
in connection with the execution, delivery, enforcement, performance and
administration of this Agreement, including without limitation (i) any and
all
recording and filing fees, or stamp, excise, sales or other taxes, which may
be
payable or determined to be payable with respect to any of the Collateral or
in
connection with any of the transactions contemplated hereby or by any Security
Document, (ii) the exercise by any Indemnitee of any right or remedy granted
to
it hereunder or under any Security Document, and (iii) the costs and expenses
of
defending itself against any claim or liability in connection with the exercise
or performance of any of its rights or remedies hereunder or under any Security
Document; unless such cost, expense, claim or liability shall be determined
to
have been caused by the gross negligence or willful misconduct on the part
of
such Indemnitee. The benefits of this Section shall survive termination of
this
Agreement.
SECTION
12. Interest
Absolute.
All
rights of the Collateral Agent and the other Secured Parties hereunder and under
the Security Documents and the security interests created under the Security
Documents, and all obligations of the Pledgor hereunder and under the Security
Documents, shall be absolute and unconditional irrespective of: (a) any lack
of
validity or enforceability of the Credit Agreement or the Additional Debt
Documents or any other agreement or instrument relating thereto; (b) 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 amendment or waiver of or any consent to any
departure from the Credit Agreement or the Additional Debt Documents;
(c) any exchange, surrender, release or non-perfection of any other
collateral, or any release or amendment
or waiver of or consent to departure from any guarantee, for all or any of
the
Obligations; or (d) any other circumstance that might otherwise constitute
a
defense available to, or a discharge of, the Pledgor in respect of the
Obligations or of this Agreement or the Security Documents, other than the
satisfaction in full of the Obligations.
9
SECTION
13. Application
of Proceeds.
(a) Upon
the
occurrence and during the continuance of an Event of Default with respect to
which a Default Notice has been delivered to the Collateral Agent in accordance
with Section 10(c) hereof, the proceeds of any sale of, or other realization
upon, all or any part of the Collateral and any cash held by the Collateral
Agent shall be applied by the Collateral Agent in the following order of
priorities:
first,
to
payment of all Obligations owing to the Collateral Agent of the type provided
in
clauses (iii) and (iv) of the definition of Obligations;
second,
an
amount equal to the outstanding Primary Obligations (as defined below) of the
Pledgor shall be paid to the Secured Parties as provided in Section 13(d),
with
each Secured Party receiving an amount equal to its outstanding Primary
Obligations of the Pledgor or, if the proceeds are insufficient to pay in full
all such Primary Obligations, its Pro Rata Share (as defined below) of the
amount remaining to be distributed;
third,
an
amount equal to the outstanding Remaining Obligations of the Pledgor shall
be
paid to the Secured Parties as provided in Section 13(d), with each Secured
Party receiving an amount equal to its outstanding Remaining Obligations of
the
Pledgor or, if the proceeds are insufficient to pay in full all such Remaining
Obligations, its Pro Rata Share of the amount remaining to be distributed;
and
finally,
upon
payment of all Remaining Obligations, to payment to the Pledgor or its
successors or assigns, or as a court of competent jurisdiction may direct,
of
any surplus then remaining from such proceeds.
(b) For
purposes of this Agreement:
(i) "Pro
Rata Share"
shall
mean, when calculating a Secured Party's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Party's Primary Obligations
or
Remaining Obligations, as the case may be, of the Pledgor and the denominator
of
which is the then outstanding amount of all Primary Obligations or Remaining
Obligations, as the case may be, of the Pledgor;
(ii) "Primary
Obligations"
of the
Pledgor shall mean all Obligations of the Pledgor secured by the Security
Documents arising out of or in connection with, the principal of, premium,
if
any, and interest (including all accrued but unpaid interest) on all the
outstanding loans and reimbursement obligations in respect of letters of credit
issued under the Credit Agreement and the principal of, premium, if any, and
interest (including all accrued but unpaid interest) on Additional Secured
Debt
at the relevant time; provided
that
with respect to any such Obligations comprised of indebtedness issued
with original issue discount, the amount outstanding at any time shall be the
face amount of such indebtedness less the remaining unamortized portion of
the
original issue discount of such indebtedness at such time as determined in
conformity with generally accepted accounting principles; and
10
(iii) "Remaining
Obligations"
of the
Pledgor shall mean all Obligations of the Pledgor secured hereby other than
Primary Obligations.
(c) When
payments to Secured Parties are based upon their respective Pro Rata Shares,
the
amounts received by such Secured Parties hereunder shall be applied (for
purposes of making determinations under this Section 13 only) (i) first, to
the
Primary Obligations of the Pledgor and (ii) second, to the Remaining Obligations
of the Pledgor. If any payment to any Secured Party of its Pro Rata Share of
any
distribution would result in overpayment to such Secured Party, such excess
amount shall instead be distributed in respect of the unpaid Primary Obligations
or Remaining Obligations, as the case may be, of the other Secured Parties,
with
each Secured Party whose Primary Obligations or Remaining Obligations, as the
case may be, have not been paid in full to receive an amount equal to such
excess amount multiplied by a fraction the numerator of which is the unpaid
Primary Obligations or Remaining Obligations, as the case may be, of such
Secured Party and the denominator of which is the unpaid Primary Obligations
or
Remaining Obligations, as the case may be, of all Secured Parties entitled
to
such distribution.
(d) All
payments required to be made hereunder shall be made (i) if to the Lenders,
to
the Agent and (ii) if to Additional Debtholders, to the Additional Debtholders
or, if applicable, the relevant Additional Secured Debt Agent.
(e) For
purposes of applying payments received in accordance with this Section 13,
the
Collateral Agent shall be entitled to rely upon the Agent and the Additional
Debtholders or, if applicable, the relevant Additional Secured Debt Agent for
a
written determination of the outstanding Primary Obligations and Remaining
Obligations owed to the Lenders and the Additional Debtholders, respectively.
The Collateral Agent shall promptly provide the Agent and the Additional
Debtholders (or, if applicable, the Additional Secured Debt Agent) with copies
of any such written determination delivered to it.
(f) It
is
understood and agreed that the Pledgor shall remain liable to the extent of
any
deficiency between the amount of the proceeds of the Collateral pledged by
it
hereunder and the aggregate amount of the Obligations of the Pledgor.
Notwithstanding
anything to the contrary in this Agreement, (i) all actions required or
permitted to be taken under this Agreement by the Lenders shall be so taken
only
by the Agent on behalf of the Lenders, and all actions required or permitted
to
be taken under this Agreement by the Additional Debtholders shall be so taken
only by the Additional Debtholders or, if applicable, the relevant Additional
Secured Debt Agent on behalf of the Additional Debtholders and (ii) all payments
required to be made with respect to the Credit Obligations shall be paid to
the
Agent, and all payments required to be made with respect to the Additional
Debt
Obligations under the Additional Debt Documents shall be paid to the Additional
Debtholders or, if applicable, the relevant Additional Secured Debt Agent.
The
Collateral Agent shall be entitled (but
not
required) to conclusively rely upon and act in accordance with any instructions
from the Agent and the Additional Debtholders or, if applicable, any relevant
Additional Secured Debt Agent subject to the terms and conditions of this
Agreement and to assume that such instructions are being given in accordance
with the terms of the Credit Agreement and the terms of the Additional Debt
Documents, respectively.
11
SECTION
14. Miscellaneous
Provisions.
14.1 Notices.
All
notices, approvals, consents or other communications required or desired to
be
given hereunder shall be in the form and manner as set forth on Schedule I
hereto.
14.2 Release
of Collateral.
The
Collateral Agent shall release the Lien of any Security Document in respect
of
Collateral, upon the written request of the Pledgor, so long as the release
of
such Collateral is permitted by the applicable Security Document, the Credit
Agreement and the Additional Secured Debt Documents (if any). Upon any request
by the Pledgor to the Collateral Agent to release any Collateral, the Pledgor
shall deliver to the Collateral Agent a certificate of an officer of the Pledgor
and an opinion of counsel to the effect that such release is permitted pursuant
to this Section 14.2. For purposes of this provision, the Collateral Agent
shall
be entitled to rely upon the certificate of the Pledgor in respect of the
release of any Collateral; provided that the officer’s certificate delivered
pursuant to the preceding sentence states that (i) no Event of Default has
occurred and is continuing and (ii) the aggregate value of the Collateral so
released during any calendar year, after taking into account the requested
release, shall not exceed $5,000,000. The Collateral Agent shall promptly
provide the Agent and the Additional Debtholders (or, if applicable, the
Additional Secured Debt Agent) with copies of any such certificate and/or
opinion delivered to it. If (i) an Event of Default has occurred and is
continuing or (ii) the aggregate value of the Collateral to be released during
any calendar year (after taking into account the requested release) will exceed
$5,000,000, the Collateral Agent shall be entitled to rely upon a written
certification of the Agent that such disposition is permitted under the Credit
Agreement and upon a written certification of each Additional Secured Debt
Agent
(or, if there is no Additional Secured Debt Agent in respect of any Additional
Secured Debt, the holders of a majority of the principal amount of such
Additional Secured Debt) in respect of any Additional Secured Debt that such
disposition is permitted under the Additional Secured Debt Documents relating
to
such Additional Secured Debt.
14.3 Severability.
The
provisions of this Agreement are severable, and if any clause or provision
shall
be held invalid or unenforceable in whole or in part in any jurisdiction, then
such invalidity or unenforceability shall affect in that jurisdiction only
such
clause or provision, or part thereof, and shall not in any manner affect such
clause or provision in any other jurisdiction or any other clause or provision
of this Agreement in any jurisdiction.
14.4 No
Recourse Against Others.
No
director, officer, employee, stockholder or affiliate, as such, of the Pledgor
shall have any liability for any obligations of the Pledgor under this Agreement
or for any claim based on, in respect of or by reason of such obligations or
their creation. Each Secured Party, by its acceptance of the benefits of this
Agreement, waives and releases all such liability. The waiver and release are
part of the consideration for the grant of the security interest in the
Collateral to the Secured Parties.
14.5 Headings.
The
headings of the Articles and Sections of this Agreement have been inserted
for
convenience of reference only, are not to be considered a part hereof and
shall
in no way modify or restrict any of the terms or provisions hereof.
12
14.6 Counterpart
Originals.
This
Agreement may be signed in two or more counterparts. Each signed copy shall
be
an original, but all of them together represent one and the same agreement.
14.7 Benefits
of Agreement.
Nothing
in this Agreement, express or implied, shall give to any Person, other than
the
parties hereto and their successors hereunder, and the Secured Parties, any
benefit or any legal or equitable right, remedy or claim under this Agreement.
The rights hereunder of the Agent and the Lenders under the Credit Agreement
shall, subject to Section 14.11, terminate upon termination of the Credit
Agreement and payment in full of the Obligations (as defined in the Credit
Agreement). The rights hereunder of the Additional Debtholders and the
Additional Secured Debt Agent identified in any Collateral Agency Agreement
Supplement shall, subject to Section 14.11, terminate upon payment in full
of
the Additional Secured Debt identified in such Collateral Agency Supplement
and
termination of the Additional Secured Debt Documents relating
thereto.
14.8 Amendments,
Waivers and Consents.
Any
amendment or waiver of any provision of this Agreement and any consent to any
departure by the Pledgor from any provision of this Agreement shall be effective
only if such amendment, waiver or consent is in writing duly signed by the
Pledgor and the Collateral Agent, with the written consent of the Majority
Holders; provided,
however,
that
any change, waiver, modification or variance materially adversely affecting
the
rights and benefits of a single Class (as defined below) of Secured Parties
(and
not all Secured Parties in a like or similar manner) shall also require the
written consent of the Requisite Holders (as defined below) of such affected
Class; provided,
further,
that
any Class shall not be considered to be affected differently from any other
Class due to the Obligations of any such other Class being paid, repaid,
refinanced, renewed or extended and the Collateral being released, in whole
or
in part (whether by action of such other Class or otherwise), as security for
a
particular Class. For the purpose of this Agreement, the term "Class"
shall
mean, at any time, each class of Secured Parties with outstanding Obligations
secured hereby at such time, i.e., (x) the Lenders and (y) any other class
of
Additional Secured Debt secured hereby; provided
that,
without limiting the foregoing, it is expressly acknowledged and agreed that
other creditors may be added as "Secured Parties" hereunder (either as part
of
an existing Class of creditors or as a newly created Class), and that such
addition shall not require the written consent of the Requisite Holders of
the
various Classes. For the purpose of this Agreement, the term "Requisite
Holders"
of any
Class shall mean each of (i) with respect to any approval to be obtained in
respect of the Credit Obligations, the portion of the Lenders required for
such
approval under the Credit Agreement, and (ii) with respect to any other class
of
Additional Secured Debt, the holders of at least a majority of such Class of
Additional Secured Debt outstanding from time to time. Failure of the Collateral
Agent or any Secured Party to exercise, or delay in exercising, any right,
power
or privilege hereunder shall not operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver of any right or remedy hereunder on any one occasion shall
not be construed as a bar to any right or remedy that the Collateral Agent
or
the Secured Parties would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any rights or remedies
provided by law.
13
14.9 Interpretation
of Agreement.
Time is
of the essence in each provision of this Agreement of which time is an element.
All terms not defined herein shall have the meanings set forth in the applicable
UCC, except where the context otherwise requires. To the extent a term or
provision of this Agreement conflicts with a Security Document and is not dealt
with herein with more specificity, the Security Document shall control with
respect to the subject matter of such term or provision.
14.10 Continuing
Security Interest.
This
Agreement shall (i) remain in full force and effect until the payment in full
of
all the Obligations of the Pledgor, the termination of the Lenders’ obligation
to make Loans to the Pledgor or issue Letters of Credit for the account of
the
Pledgor (each as defined in the Credit Agreement) at the Maturity Date
applicable to the Pledgor (as defined in the Credit Agreement) or otherwise,
the
reduction to zero of the Borrower Credit Exposure of the Pledgor under (and
as
defined in) the Credit Agreement, and payment in full of all the fees and
expenses owing to the Collateral Agent, (ii) be binding upon the Pledgor, its
successors and assigns, provided
that the
Pledgor may not assign, transfer or delegate any of its rights or obligations
under this Agreement without the prior written consent of the Collateral Agent
and the Majority Holders and (iii) inure, together with the rights and remedies
of the Collateral Agent hereunder, to the benefit of the Collateral Agent,
the
Secured Parties and their respective successors, transferees and assigns.
14.11 Reinstatement.
This
Agreement shall continue to be effective or be reinstated if at any time any
amount received by the Collateral Agent or any Secured Party in respect of
the
Obligations is rescinded or must otherwise be restored or returned by the
Collateral Agent or any Secured Party upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Pledgor or upon the
appointment of any receiver, intervenor, conservator, trustee or similar
official for the Pledgor or any substantial part of its assets, or otherwise,
all as though such payments had not been made.
14.12 Survival
of Provisions.
All
representations, warranties and covenants of the Pledgor contained herein shall
survive the execution and delivery of this Agreement (including the Pledgor's
obligations under Section 11 hereof), and shall terminate only upon the full
and
final payment and performance by the Pledgor of the Obligations of the
Pledgor.
14.13 Waivers.
The
Pledgor waives presentment and demand for payment of any of the Obligations,
protest and notice of dishonor or default with respect to any of the
Obligations, and all other notices to which the Pledgor might otherwise be
entitled, except as otherwise expressly provided herein or in the
Indenture.
14.14 Authority
of the Collateral Agent.
(a) The
Collateral Agent shall have and be entitled to exercise all powers hereunder
and
under the Security Documents that are specifically granted to the Collateral
Agent by the terms hereof or thereof, together with such powers as are
reasonably incident thereto. The Collateral Agent may perform any of its duties
hereunder or under the Security Documents or in connection with the Collateral
by or through agents or employees and shall be entitled to retain counsel of
its
choice and to act in reliance upon the advice of counsel concerning all such
matters. Neither the Collateral Agent nor any director, officer, employee,
attorney or agent of
14
the
Collateral Agent shall be responsible for the validity, effectiveness or
sufficiency hereof or of any Security Document, or of any document or instrument
furnished pursuant hereto or thereto. The Collateral Agent and its directors,
officers, employees, attorneys and agents shall be entitled to rely on any
communication, instrument or document believed by it or them to be genuine
and
correct and to have been signed or sent by the proper person or persons. To
the
maximum extent permitted by applicable law, the Pledgor waives all claims,
damages, and demands against the Collateral Agent arising out of the
repossession, retention or sale of the Collateral pursuant to the written
instruction of the Majority Holders as provided herein, except such which may
arise out of the gross negligence or willful misconduct of the Collateral Agent.
Upon the occurrence and during the continuance of an Event of Default, until
the
Collateral Agent is able to effect a sale, lease, or other disposition of the
Collateral, the Collateral Agent shall have the right to use or operate the
Collateral, or any part thereof, to the extent that it deems appropriate for
the
purpose of preserving the Collateral or its value or for any other purpose
deemed appropriate by the Collateral Agent. The Collateral Agent shall have
no
obligation to maintain or preserve the rights of the Pledgor as against third
parties with respect to the Collateral while the Collateral is in the possession
of the Collateral Agent. The Collateral Agent shall use reasonable care with
respect to the Collateral in its possession or under its control. The Collateral
Agent shall not have any other duty as to the Collateral in its possession
or
control or in the possession or control of any agent or nominee of the
Collateral Agent, or any income thereon or as to the preservation of rights
against prior parties or any other rights pertaining thereto. Upon request
of
the Pledgor, the Collateral Agent shall account for any monies received by
the
Collateral Agent in respect of any foreclosure on or disposition of the
Collateral.
(b) The
Pledgor acknowledges that the rights and responsibilities of the Collateral
Agent under this Agreement with respect to any action taken by the Collateral
Agent or the exercise or non-exercise by the Collateral Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as among the Collateral Agent
and the Secured Parties, be governed by this Agreement and by such other
agreements with respect thereto as may exist from time to time among them,
but,
as between the Collateral Agent and the Pledgor, the Collateral Agent shall
be
conclusively presumed to be acting as agent for the Secured Parties with full
and valid authority so to act or refrain from acting, and the Pledgor shall
not
be obligated or entitled to make any inquiry respecting such authority. The
Collateral Agent shall not be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Liens in any of the Collateral, whether impaired by
operation of law or by reason of any action or omission to act on its part
hereunder, except to the extent such action or omission constitutes gross
negligence, bad faith or willful misconduct on the part of the Collateral Agent,
for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Pledgor to the
Collateral, for insuring the Collateral or for the payment of taxes, charges,
assessments or Liens upon the Collateral or otherwise as to the maintenance
of
the Collateral.
14.15 Resignation
or Removal of the Collateral Agent.
Until
such time as the Obligations shall have been paid in full, the Collateral Agent
may at any time, by giving written
notice
to the Pledgor, the Trustee and any Additional Secured Debt Agent
or Additional Debtholder, as applicable, resign and be discharged of the
responsibilities hereby created, such resignation to become effective upon
(i)
the appointment of a successor Collateral Agent and (ii)
15
the
acceptance of such appointment by such successor Collateral Agent. As promptly
as practicable after the giving of any such notice, the Majority Holders shall
appoint a successor Collateral Agent, which successor Collateral Agent shall
be
reasonably acceptable to the Pledgor. If no successor Collateral Agent shall
be
appointed and shall have accepted such appointment within 60 days after the
Collateral Agent gives the aforesaid notice of resignation, the Collateral
Agent
may apply, at the expense of the Pledgor, to any court of competent jurisdiction
to appoint a successor Collateral Agent to act until such time, if any, as
a
successor shall have been appointed as provided in this Section 14.15. Any
successor so appointed by such court shall immediately and without further
act
be superseded by any successor Collateral Agent appointed by the Majority
Holders as provided in this Section 14.15. Simultaneously with its replacement
as Collateral Agent hereunder, the Collateral Agent so replaced shall deliver
to
its successor all documents, instruments, certificates and other items of
whatever kind (including, without limitation, the certificates and instruments
evidencing the Collateral and all instruments of transfer or assignment) held
by
it pursuant to the terms hereof. The Collateral Agent that has resigned shall
be
entitled to fees, costs and expenses to the extent incurred or arising, or
relating to events occurring, before its resignation or removal.
14.16 Collateral
Agency Agreement Supplement.
In
connection with the incurrence by the Pledgor from time to time of any class
of
Additional Secured Debt, the Pledgor agrees to enter into a Collateral Agency
Agreement Supplement, which shall form a part of this Agreement, and shall
by
its terms cause such Additional Debt Obligations to be secured by a security
interest in the Collateral on an equal and ratable basis with the Obligations
secured hereunder and under the Security Documents. Upon the effectiveness
of
any Collateral Agency Agreement Supplement, all references to Obligations shall
be deemed to include the Additional Debt Obligations, and all references to
Secured Parties shall be deemed to include the Additional Debtholders and,
if
applicable, Additional Secured Debt Agent, identified in such Collateral Agency
Agreement Supplement and Schedule I thereto.
14.17 Termination
of Agreement.
Subject
to the provisions of Section 14.12 hereof, this Agreement shall terminate upon
full and final payment and performance of the Obligations of the Pledgor, the
termination of the Lenders’ obligation to make Loans to the Pledgor or issue
Letters of Credit for the account of the Pledgor (each as defined in the Credit
Agreement) at the Maturity Date applicable to the Pledgor (as defined in the
Credit Agreement) or otherwise,and the reduction to zero of the Borrower Credit
Exposure of the Pledgor under (and as defined in) the Credit Agreement. Upon
receipt by the Collateral Agent of the Pledgor's written certification that
all
such Obligations have been satisfied, the Lenders’ obligation to make Loans to
the Pledgor or issue Letters of Credit for the account of the Pledgor (each
as
defined in the Credit Agreement) has been terminated and the Borrower Credit
Exposure of the Pledgor under (and as defined in) the Credit Agreement has
been
reduced to zero, the Collateral Agent shall, at the request of the Pledgor,
reassign and redeliver to the Pledgor all of the Collateral hereunder that
has
not been sold, disposed of, retained or applied by the Collateral Agent in
accordance with the terms hereof. The Collateral Agent shall promptly provide
the Agent and the Additional Debtholders (or, if applicable, the Additional
Secured Debt Agent) with copies of any such written certification delivered
to
it. Such reassignment and redelivery shall be without warranty by or
recourse to the Collateral Agent, except as to the absence of any prior
assignments by the Collateral Agent of its interest in the Collateral and except
to the extent of any breach by the
16
Collateral
Agent of its obligations hereunder (including, without limitation, its
obligations under Section 8), and shall be at the expense of the
Pledgor.
14.18 Final
Expression.
This
Agreement, together with the Security Documents and any other agreement executed
in connection herewith or therewith, is intended by the parties as a final
expression of their agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof.
14.19 GOVERNING
LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL; WAIVER OF
DAMAGES.
(i)
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF
THE STATE OF NEW YORK. (ii) THE PLEDGOR AGREES THAT THE COLLATERAL AGENT SHALL,
IN ITS OWN NAME OR IN THE NAME AND ON BEHALF OF ANY SECURED PARTY, HAVE THE
RIGHT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO PROCEED AGAINST THE PLEDGOR
OR THE PLEDGOR'S PROPERTY IN A COURT IN ANY LOCATION REASONABLY SELECTED IN
GOOD
FAITH TO ENABLE THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL AGENT. THE
PLEDGOR AGREES THAT IT WILL NOT ASSERT ANY PERMISSIVE COUNTERCLAIMS IN ANY
PROCEEDING BROUGHT BY THE COLLATERAL AGENT TO REALIZE ON SUCH PROPERTY, OR
TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE COLLATERAL AGENT. THE
PLEDGOR WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
IN
WHICH THE COLLATERAL AGENT HAS COMMENCED A PROCEEDING DESCRIBED IN THIS
PARAGRAPH INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS. (iii) THE PLEDGOR AGREES THAT
SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING
A
COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR
FORM
OF MAIL), POSTAGE PREPAID, TO THE PLEDGOR AT ITS ADDRESS REFERRED TO IN SECTION
14.1 OR AT SUCH OTHER ADDRESS OF WHICH THE COLLATERAL AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT THERETO. THE PLEDGOR AGREES THAT NOTHING HEREIN SHALL AFFECT
THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR
SHALL LIMIT THE RIGHT TO XXX IN ANY OTHER JURISDICTION. (iv) THE PLEDGOR, THE
COLLATERAL AGENT AND THE SECURED PARTIES WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR
ANY
SECURITY DOCUMENT. INSTEAD, ANY DISPUTES RESOLVED IN COURT WILL BE RESOLVED
IN A
BENCH TRIAL WITHOUT A JURY. (v) THE PLEDGOR HEREBY AGREES THAT NEITHER THE
COLLATERAL AGENT NOR ANY SECURED PARTY SHALL HAVE ANY LIABILITY TO THE PLEDGOR
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
PLEDGOR IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS AGREEMENT
OR
ANY SECURITY
17
DOCUMENTS,
OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, UNLESS SUCH
LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE COLLATERAL AGENT
OR SUCH SECURED PARTY, AS THE CASE MAY BE, CONSTITUTING GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. (vi) THE PLEDGOR WAIVES ALL RIGHTS OF NOTICE AND HEARING
OF
ANY KIND PRIOR TO THE EXERCISE BY THE COLLATERAL AGENT OR ANY HOLDER OF ITS
RIGHTS DURING THE CONTINUANCE OF A DEFAULT OR AN EVENT OF DEFAULT TO REPOSSESS
THE COLLATERAL WITH JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON THE
COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS. THE PLEDGOR WAIVES THE POSTING
OF ANY BOND OTHERWISE REQUIRED OF THE COLLATERAL AGENT OR ANY SECURED PARTY
IN
CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO OBTAIN POSSESSION OF,
REPLEVY, ATTACH OR LEVY UPON COLLATERAL OR OTHER SECURITY FOR THE OBLIGATIONS,
TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE COLLATERAL
AGENT OR ANY SECURED PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY
RESTRAINING ORDER OR PRELIMINARY OR PERMANENT INJUNCTION THIS AGREEMENT, ANY
SECURITY DOCUMENT OR ANY OTHER AGREEMENT OR DOCUMENT AMONG THE PLEDGOR, THE
COLLATERAL AGENT AND THE SECURED PARTIES. THE PLEDGOR WAIVES, TO THE MAXIMUM
EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN
ANY
LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
14.20 Acknowledgments.
The
Pledgor hereby acknowledges that it has been advised by counsel in the
negotiation, execution and delivery of this Agreement.
14.21 Force
Majeure.
In no
event shall the Collateral Agent be responsible or liable for any failure or
delay in the performance of its obligations hereunder arising out of or caused
by, directly or indirectly, forces beyond its control, including, without
limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil
or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services; it being understood that the Collateral Agent
shall use reasonable efforts which are consistent with accepted practices in
the
banking industry to resume performance as soon as practicable under the
circumstances.
18
IN
WITNESS WHEREOF, the Pledgor and the Collateral Agent have each caused this
Agreement to be duly executed and delivered as of the date first above
written.
|
AMERENENERGY
RESOURCES
GENERATING
COMPANY
By:
/s/ Xxxxx X.
Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
|
|
|
THE
BANK OF NEW YORK TRUST
COMPANY,
N. A.,
as Collateral Agent
By: /s/
Xxxxxx X.
Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
|
RESOURCES
COLLATERAL AGENCY AGREEMENT
SIGNATURE
PAGE
19
SCHEDULE
I
NOTICE
INFORMATION
If
to
Pledgor:
AmerenEnergy
Resources Generating Company
c/o
Ameren Corporation
0000
Xxxxxxxx Xxxxxx
Xx.
Xxxxx, XX 00000
Attn:
Xxxxx X. Xxxxxxxx, Vice President and Treasurer (telecopy no. (000)
000-0000)
If
to the
Collateral Agent:
The
Bank
of New York Trust Company, N. A.
000
Xxxxxxx Xxxxxx, 0 Xxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxxxx, Vice President (telecopy no. (000) 000-0000)
If
to the
Agent:
JPMorgan
Chase Bank, N.A.
Loan
and
Agency Services
0000
Xxxxx, 00xx Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxxxx Xxxxxxxxx (telecopy no. (000) 000-0000)
with
a
copy to:
JPMorgan
Chase Bank, N.A
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxxxx X. XxXxxxx (telecopy no. (000) 000-0000)
If
to any
Additional Debtholder or Additional Secured Debt Agent:
See
Schedule I to the applicable Collateral Agency Agreement Supplement
ANNEX
A
FORM
OF
COLLATERAL AGENCY AGREEMENT SUPPLEMENT
COLLATERAL
AGENCY AGREEMENT SUPPLEMENT dated ______________, ____ (this "Supplement")
made
by AmerenEnergy Resources Generating Company, an Illinois corporation (the
"Pledgor"), in favor of _____________________, a ______________ corporation,
as
collateral agent (in such capacity, the "Collateral Agent") for the benefit
of
the Secured Parties (as defined in the Collateral Agency Agreement referred
to
below).
1. This
Supplement is executed and delivered pursuant to the terms of the Collateral
Agency Agreement dated as of ____________, 2006 (as supplemented by this
Supplement and as the same has been and may hereafter be supplemented by any
other Collateral Agency Agreement Supplement or otherwise amended or modified,
the "Collateral Agency Agreement"), made by the Pledgor in favor of the
Collateral Agent for the benefit of the Collateral Agent and the Secured
Parties. Terms defined in the Collateral Agency Agreement are used herein with
their defined meanings.
2. Pursuant
to the terms of the Collateral Agency Agreement, the Pledgor may incur
additional secured indebtedness from time to time that is by its terms equally
and ratably secured under the Collateral Agency Agreement and the Security
Documents with the Obligations secured thereunder. The Pledgor and [Additional
Secured Debt Agent/Additional Debtholder] have entered into that certain [name
of additional debt agreement], dated as of ___________, ____, pursuant to which
the Pledgor shall [insert description of additional debt]. The terms of the
[additional debt agreement] require that the Pledgor equally and ratably secure
its obligations under [such additional debt] with the Obligations secured under
the Collateral Agency Agreement and the Security Documents. The Pledgor hereby
acknowledges and agrees that its obligations under [such additional debt] shall
be deemed to be "Additional Debt Obligations" pursuant to the Collateral Agency
Agreement.
3. The
Pledgor confirms and reaffirms the security interest in the Collateral granted
to the Collateral Agent, for the benefit of the Collateral Agent and the Secured
Parties under the Collateral Agency Agreement and the Security Documents; and
hereby acknowledges and agrees that all references to "Secured Parties" in
the
Collateral Agency Agreement and the Security Documents shall be deemed to
include all holders of the Additional Secured Debt as described on Schedule
1
hereto.
4. The
Pledgor hereby represents and warrants that the representations and warranties
contained in Section 3 of the Collateral Agency Agreement are true and correct
on the date of this Supplement with all references therein and elsewhere in
the
Collateral Agency Agreement to "Additional Secured Debt", "Additional
Debtholders" and, if applicable, "Additional Secured Debt Agent" to include
the
Additional Debt, Additional Debtholders and, if applicable, Additional Secured
Debt Agent as listed on Schedule 1 hereto and on Schedule 1 to each Collateral
Agency Agreement Supplement executed prior to the date hereof and with
references therein to "this Collateral Agency Agreement" to mean the Collateral
Agency
Agreement
as supplemented hereby. In addition, the Pledgor represents and warrants that
this Supplement has been duly executed and delivered by the Pledgor and
constitutes a legal, valid and binding obligation of the Pledgor enforceable
against the Pledgor in accordance with its terms, except as may be limited
by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors' rights and
remedies generally and by equitable principles of general applicability.
5. The
Additional Debtholders designated on Schedule 1 hereto, by their acceptance
of
the benefits of the Collateral Agency Agreement, hereby irrevocably designate
the Collateral Agent to act on their behalf as specified in the Collateral
Agency Agreement. Each such Additional Debtholder hereby irrevocably authorizes,
and each holder of the Additional Debt Obligations by the acceptance of such
Additional Debt Obligation and by the acceptance of the benefits of the
Collateral Agency Agreement, shall be deemed irrevocably to authorize the
Collateral Agent to take such action on its behalf under the Collateral Agency
Agreement and instruments and agreements referred to therein and to exercise
such powers and to perform such duties thereunder as are specifically delegated
or required of the Collateral Agent by the terms thereof and such other powers
as are reasonably incident thereto.
6. This
Supplement is supplemental to the Collateral Agency Agreement, forms a part
thereof and is subject to all the terms thereof. Each item listed on Schedule
I
hereto shall be and is included within the meaning of the terms "Additional
Secured Debt", "Additional Debtholders" and, if applicable, "Additional Secured
Debt Agent" as such terms are used in the Collateral Agency Agreement.
IN
WITNESS WHEREOF, the Pledgor has caused this Supplement to be duly executed
and
delivered on the date first set forth above.
|
AMERENENERGY
RESOURCES GENERATING COMPANY
By:
_______________________
Name:
__________________
Title: __________________
|
|
Accepted
and acknowledged as of
the
date first above written by:
THE
BANK OF NEW YORK TRUST
COMPANY,
N. A.,
as Collateral Agent
By: ________________________
Name: ___________________
Title: ___________________
|
|
|
[Additional
Secured Debt Agent][Additional
Debtholder]
By: ________________________
Name: __________________
Title: __________________
|
Schedule
I
to
Collateral Agency Agreement Supplement
ADDITIONAL
SECURED DEBT
|
Title
or Name of Additional
Secured
Debt
|
Additional
Debt Holders
|
Additional
Secured
Debt
Agent
|
