Exhibit 10.34
================================================================================
BOND PLEDGE AGREEMENT
BETWEEN
SNOWFLAKE WHITE MOUNTAIN POWER, LLC
AND
COBANK, ACB,
as Collateral Agent
----------
Dated as of September 1, 2006
----------
================================================================================
This BOND PLEDGE AGREEMENT ("Agreement"), dated as of September 1,
2006, made by SNOWFLAKE WHITE MOUNTAIN POWER, LLC, an Arizona limited liability
company ("Pledgor"), to COBANK, ACB, as Collateral Agent (in such capacity, the
"Bank"), pursuant to the Credit Agreement, dated as of September 1, 2006 (the
"Credit Agreement"), by and among Pledgor, Renegy, LLC, an Arizona limited
liability company ("Renegy"), Renegy Trucking, LLC, an Arizona limited liability
company ("Renegy Trucking" and together with SWMP and Renegy, the "Borrowers").
CoBank, ACB, as lead arranger, Administrative Agent and Collateral Agent,
CoBank, ACB, as letter of credit issuer, and the financial institutions party
thereto ("Lenders").
WITNESSETH:
WHEREAS, pursuant to an Indenture of Trust, dated as of September 1,
2006 (as in effect from time to time, the "Indenture"), between The Industrial
Development Authority of the City of Show Low, Arizona (the "Issuer") and X.X.
Xxxxxx Trust Company, National Association ("Trustee"), the Issuer is issuing
$39,250,000 aggregate principal amount of its Solid Waste Disposal Revenue Bonds
(Snowflake White Mountain Power, LLC Project) Series 2006 (the "Bonds"); and
WHEREAS, the Indenture provides for the purchase of Bonds under
certain circumstances as set forth in Sections 4.1 and 4.2 of the Indenture (the
"Purchased Bonds") from the holders thereof; and
WHEREAS, in connection with the issuance of the Bonds, Pledgor has
entered into the Credit Agreement and arranged for the Bank to issue a Letter of
Credit dated September 7, 2006 (the "Letter of Credit") thereunder which may be
used, inter alia, to pay the purchase price of the Purchased Bonds (to the
extent moneys drawn under the Letter of Credit are used to purchase Purchased
Bonds, such Purchased Bonds are hereinafter referred to as "Pledged Bonds"); and
WHEREAS, this Agreement is a pledge agreement for purposes of the
Indenture and the Credit Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Bank to
enter into the Credit Agreement that Pledgor shall have executed and delivered
this Agreement to the Bank;
NOW, THEREFORE, in consideration of the premises and in order to
induce the Bank to enter into the Credit Agreement and issue the Letter of
Credit thereunder and for other good and valuable consideration, receipt of
which is hereby acknowledged, Pledgor hereby agrees with the Bank as follows:
1. Defined Terms. Unless otherwise defined herein, terms defined in
the Credit Agreement shall have such defined meanings when used herein.
2. Pledge. Pledgor hereby pledges, assigns, hypothecates, transfers
and delivers to the Bank all its right, title and interest to the Pledged Bonds
as the same may be from time to time delivered to the Trustee by the holders
thereof and hereby grants to the Bank a first lien on,
and security interest in, its right, title and interest in and to the Pledged
Bonds, the interest thereon and all proceeds thereof, as collateral security for
the prompt and complete payment when due of all amounts due in respect of the
obligations of Pledgor set forth in Sections 2.2.2, 2.2.3 and 2.2.5 of the
Credit Agreement and interest on such amounts as set forth in Section 2.1.5 of
the Credit Agreement (all the foregoing being hereinafter called the
"Obligations").
3. Payments on the Bonds. If, while this Agreement is in effect,
Pledgor shall become entitled to receive or shall receive any principal or
interest payment in respect of the Pledged Bonds, Pledgor agrees to accept the
same as the Bank's agent and to hold the same in trust on behalf of the Bank and
to deliver the same forthwith to the Bank. All sums of money so paid in respect
of the Pledged Bonds which are received by Pledgor and paid to the Bank shall be
credited against the obligations of Pledgor to the Bank in the manner set forth
in Section 2.2.10 of the Credit Agreement. So long as no Default or Event of
Default has occurred and is continuing, any amounts received by the Bank in
respect of the stated interest on any Pledged Bonds in excess of any interest
amounts then owing to the Bank pursuant to Section 2.1.5 of the Credit
Agreement, shall, upon request of Pledgor, be remitted to Pledgor.
4. Release of Pledged Bonds. If Pledgor makes or causes to be made to
the Bank a payment in respect of its reimbursement obligation under Section
2.2.2 of the Credit Agreement or repays outstanding LC Loans, together with
accrued interest thereon, pursuant to Section 2 above or such a prepayment is
made on behalf of Pledgor pursuant to Section 2 above, the Bank agrees to
release from the lien of this Agreement and deliver, or cause the Trustee to
deliver (to the extent physical Bonds have been issued), to Pledgor or the
Trustee for resale in accordance with Sections 4.3 of the Indenture, as the case
may be, Pledged Bonds in a principal amount equal to the amount of the
prepayment so made or to the principal amount of Pledged Bonds so purchased.
5. Rights of the Bank. The Bank shall not be liable for failure to
collect or realize upon the Obligations or any collateral security or guarantee
therefor, or any part thereof, or for any delay in so doing nor shall it be
under any obligation to take any action whatsoever with regard thereto. If an
Event of Default has occurred and is continuing, the Bank may thereafter,
without notice, exercise all rights, privileges or options pertaining to any
Pledged Bonds as if it were the absolute owner thereof, upon such terms and
conditions as it may determine, all without liability except to account for
property actually received by it, but the Bank shall have no duty to exercise
any of the aforesaid rights, privileges or options and shall not be responsible
for any failure to do so or delay in so doing.
6. Remedies. In the event that any portion of the Obligations has been
declared due and payable pursuant to the Credit Agreement, the Bank, without
demand of performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or private sale)
to or upon Pledgor or any other person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Pledged Bonds, or any part
thereof, and/or may forthwith sell, assign, give option or options to purchase,
contract to sell or otherwise dispose of and deliver such Pledged Bonds, or any
part thereof, in one or more parcels at public or private sale or sales, at any
exchange, broker's board or at any of the Bank's offices or elsewhere upon such
terms and conditions as it may deem advisable and at such prices as it may deem
best, for
2
cash or on credit or for future delivery without assumption of any credit risk,
with the right to the Bank upon any such sale or sales, public or private, to
purchase the whole or any part of such Pledged Bonds so sold, free of any right
or equity of redemption in Pledgor, which right or equity is hereby expressly
waived or released; provided that it is understood that any such sale of any
Pledged Bonds shall constitute a release thereof for purposes of the Letter of
Credit. The Bank shall apply the net proceeds of any such collection, recovery,
receipt, appropriation, realization or sale, after deducting all reasonable
costs and expenses of every kind incurred therein or incidental to the care,
safekeeping or otherwise of any and all of the Pledged Bonds or in any way
relating to the rights of the Bank hereunder, including reasonable attorneys'
fees and legal expenses, to the payment, in whole or in part, of the Obligations
in such order as the Bank may elect, Pledgor remaining liable for any deficiency
remaining unpaid after such application, and only after so applying such net
proceeds and after the payment by the Bank of any other amount required to be
paid by any provision of law, including, without limitation, Section 9-504(1)
(c) of the Uniform Commercial Code, need the Bank account for the surplus, if
any, to Pledgor. Pledgor agrees that the Bank need not give more than 10 days'
notice of the time and place of any public sale or of the time after which a
private sale or other intended disposition is to take place and that such notice
is reasonable notification of such matters. No notification need be given to
Pledgor if it has signed after default a statement renouncing or modifying any
right to notification of sale or other intended disposition. In addition to the
rights and remedies granted to it in this Agreement and in any other instrument
or agreement securing, evidencing or relating to any of the Obligations, the
Bank shall have all the rights and remedies of a secured party under the Uniform
Commercial Code of the State of New York. Pledgor shall be liable for the
deficiency if the proceeds of any sale or other disposition of the Pledged Bonds
are insufficient to pay all amounts to which the Bank is entitled, and the fees
of any attorneys employed by the Bank to collect such deficiency.
7. Representations, Warranties and Covenants of Pledgor. Pledgor
represents and warrants that: (a) on the date of delivery to the Bank of any
Pledged Bonds described herein, none of the Issuer, the Remarketing Agent or the
Trustee will have any right, title or interest in or to the Pledged Bonds; (b)
it has, and on the date of delivery to the Bank of any Pledged Bonds will have,
full power, authority and legal right to pledge all of its right, title and
interest in and to the Pledged Bonds pursuant to this Agreement; (c) this
Agreement has been duly authorized, executed and delivered by Pledgor and
constitutes a legal, valid and binding obligation of Pledgor enforceable in
accordance with its terms; (d) no consent of any other party (including, without
limitation, creditors of Pledgor) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority, domestic or foreign, is required
to be obtained by Pledgor in connection with the execution, delivery or
performance of this Agreement; (e) the execution, delivery and performance of
this Agreement will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, domestic or foreign, or of any mortgage,
indenture, lease, contract or other agreement, instrument or undertaking to
which Pledgor is a party or which purports to be binding upon Pledgor or upon
its assets and will not result in the creation or imposition of any lien, charge
or encumbrance on or security interest in any of the assets of Pledgor except as
contemplated by this Agreement; and (f) the pledge of any Pledged Bonds pursuant
to this Agreement will, upon delivery of such Pledged Bonds to the Bank, create
a valid first lien on and a first perfected security interest in, all right,
title and interest of Pledgor in and to such Pledged Bonds, and the
3
proceeds thereof, subject to no prior pledge, lien, mortgage, hypothecation,
security interest, charge, option or encumbrance or to any agreement purporting
to grant to any third party a security interest in the property or assets of
Pledgor which would include the Pledged Bonds. Pledgor covenants and agrees that
it will defend the Bank's right, title and security interest in and to the
Pledged Bonds and the proceeds thereof against the claims and demands of any and
all Persons.
8. No Disposition, etc. Without the prior written consent of the Bank
(which consent may only be given if such Pledged Bonds have previously been
released from the lien of this Agreement pursuant to Section 4 hereof), Pledgor
agrees that it will not sell, assign, transfer, exchange or otherwise dispose
of, or grant any option with respect to, the Pledged Bonds, nor will it create,
incur or permit to exist any pledge, lien, mortgage, hypothecation, security
interest, charge, option or any other encumbrance with respect to any of the
Pledged Bonds, or any interest therein, or any proceeds thereof, except for the
lien and security interest provided for by this Agreement and sale of the
Pledged Bonds pursuant to Sections 4.1 and 4.2 of the Indenture.
9. Further Assurances. Pledgor agrees that, at any time and from time
to time upon the written request of the Bank, Pledgor will execute and deliver
such further documents and do such further acts and things as the Bank may
reasonably request in order to effect the purposes of this Agreement.
10. Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11. No Waiver; Remedies Cumulative. The Bank shall not by any act,
delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder and no waiver shall be valid unless in writing, signed by the
Bank, and then only to the extent therein set forth. A waiver by the Bank of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which the Bank would otherwise have on any future occasion.
No failure to exercise nor any delay in exercising on the part of the Bank, any
right, power or privilege hereunder, shall operate as a waiver thereof, nor
shall any single or partial exercise of any right, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided are
cumulative and may be exercised singly or concurrently, and are not exclusive of
any rights or remedies provided by the Credit Documents or by law.
12. Waivers, Amendments; Applicable Law. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended except
by an instrument in writing, duly executed by the Bank and, to the extent any
such waiver, alteration, modification or amendment affects the Trustee, duly
acknowledged by the Trustee. This Agreement and all obligations of Pledgor
hereunder shall be binding upon the successors and assigns of Pledgor and shall,
together with the rights and remedies of the Bank hereunder, inure to the
benefit of the Bank and its successors and assigns. This Agreement shall be
governed by, and be construed
4
and interpreted in accordance with, the laws of the State of New York, without
regard to the conflict of law provisions thereof.
[Remainder of Page Intentionally Left Blank]
5
IN WITNESS WHEREOF, Pledgor has caused this Bond Pledge Agreement to be
duly executed and delivered on the day and year first above written.
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
as Pledgor
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
Acknowledged and agreed as of the date
first above written.
COBANK, ACB, as Collateral Agent
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director,
Project and Structured Finance
Communications and Energy
Banking Group
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee under the Indenture
By:
---------------------------------
Name:
Title:
Signature Page to Bond Pledge Agreement
IN WITNESS WHEREOF, Pledgor has caused this Bond Pledge Agreement to be
duly executed and delivered on the day and year first above written.
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
as Pledgor
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
Acknowledged and agreed as of the
date first above written.
COBANK, ACB, as Collateral Agent
By:
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director, Project and
Structured Finance
Communications and Energy
Banking Group
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee under the Indenture
By: /s/ Xxxxx Xxxx
---------------------------------
Name: XXXXX XXXX
Title: ASSISTANT VICE PRESIDENT
Signature Page to Bond Pledge Agreement
IN WITNESS WHEREOF, Pledgor has caused this Bond Pledge Agreement to be
duly executed and delivered on the day and year first above written.
SNOWFLAKE WHITE MOUNTAIN POWER, LLC,
as Pledgor
By:
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
Acknowledged and agreed as of the
date first above written.
COBANK, ACB, as Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director, Project and
Structured Finance
Communications and Energy
Banking Group
X.X. XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee under the Indenture
By:
---------------------------------
Name:
Title:
Signature Page to Bond Pledge Agreement
