PLEDGE AGREEMENT
EXECUTION VERSION
Exhibit 10.4
THIS PLEDGE AGREEMENT, dated as of July 18, 2014 (this “Agreement”), is made by [●], a Nevada corporation (“Pledgor”), in favor of Commonwealth Bank of Australia, as collateral agent (“Collateral Agent”).
Recitals
A. Commonwealth Bank of Australia, as administrative agent, collateral agent, technical agent and initial lender, the other lenders party thereto from time to time and MDW Pan LLP, a Delaware limited liability partnership (“Borrower”) are entering into a Credit Agreement, dated as of the date hereof (the “Credit Agreement”), which provides, among other things, for the provision of a project finance facility and a cost overrun facility in an aggregate principal amount outstanding not to exceed U.S.$55 million (the “Debt Facilities”). |
B. The Borrower is entering into secured hedge agreements, dated on or about the date hereof (the “Secured Hedge Agreements”), with certain Approved Hedge Counterparties (as defined in the Credit Agreement). |
C. The Pledgor is an affiliate of the Borrower and is guaranteeing the Borrower’s obligations under the Credit Agreement and the Secured Hedge Agreements, pursuant to the terms of a Completion Guaranty, dated as of the date hereof, in favor of the Collateral Agent (the “Completion Guaranty”). |
D. It is a condition precedent to the making of loans under the Credit Agreement and the entry into secured xxxxxx under the Secured Hedge Agreements that the Pledgor execute and deliver this Agreement. |
Agreement
In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
(a) Unless otherwise specified herein, all references to Sections and Schedules herein are to Sections and Schedules of this Agreement. |
(b) Unless otherwise defined herein, terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC. However, if a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9. |
(c) For purposes of this Agreement, the following terms shall have the following meanings: |
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SFDOCS01/313128.7
“Economic Completion Date” has the meaning set forth in the Credit Agreement.
“Event of Default” has the meaning set forth in the Credit Agreement.
“Goshute Challenge Resolution Date” has the meaning set forth in the Credit Agreement.
“Lien” has the meaning set forth in the Credit Agreement.
“Loan Document” has the meaning set forth in the Credit Agreement.
“Loan Parties” has the meaning set forth in the Credit Agreement.
“Majority Lenders” has the meaning set forth in the Credit Agreement.
“Person” has the meaning set forth in the Credit Agreement.
“Pledged Collateral” has the meaning set forth in Section 2.
“Pledged Debt” means the indebtedness described in Schedule 1 hereto and all additional indebtedness from time to time owed to the Pledgor (whether incurred prior to or after the date hereof) and the instruments, if any, evidencing such indebtedness, and all interest, 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 indebtedness.
“Pledged Equity Interests” means the Pledged Partnership Interests.
“Pledged Partnership Interests” means the partnership interests described in Schedule 1 hereto and issued by the issuers named therein and all additional partnership interests and other equity interests from time to time acquired by the Pledgor in any manner, including, without limitation, all of the economic interests, right to vote or to otherwise control or participate in management, and the certificates, instruments and agreements representing the Pledged Partnership Interests and includes any securities or other interests, howsoever evidenced or denominated, received by the Pledgor in exchange for or as a distribution on or otherwise received in respect of the Pledged Partnership Interests.
“Proceeds” means “proceeds” as such term is defined in Section 9-102 of the UCC and, in any event, shall include, without limitation, all dividends, distributions, return of capital, 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 Equity Interests or Pledged Debt, all proceeds of, collateral for and supporting obligations relating to, any and all of the Pledged Equity Interests and Pledged Debt, all subscription warrants, rights or options issued thereon or with respect thereto and, to the extent not otherwise included, all payments under insurance (whether or not the Collateral Agent is the loss payee thereof) or any indemnity, warranty or guaranty payable by reason of loss or damage to or otherwise with respect to any of the Pledged Equity Interests or Pledged Debt.
“Secured Parties” has the meaning set forth in the Credit Agreement.
“Secured Obligations” has the meaning set forth in the Credit Agreement.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of Nevada or, when the laws of any other state govern the method or manner of the perfection or enforcement of any security interest in any of the Pledged Collateral, the Uniform Commercial Code as in effect from time to time in such state.
(a) the obligations of the Pledgor, the Borrower and each of the other Loan Parties from time to time arising under the Credit Agreement, the Completion Guaranty, this Agreement or otherwise with respect to the Debt Facilities and the Secured Hedge Agreements; and |
(b) all other covenants, duties, debts, obligations and liabilities of any kind of the Pledgor, the Borrower and each of the other Loan Parties under or in respect of the Credit Agreement, the Completion Guaranty, this Agreement, any other Loan Document or any other document made, delivered or given in connection with any of the foregoing. |
(a) The Pledgor shall, from time to time, immediately take all actions as may reasonably be requested by the Collateral Agent to perfect the security interest of the Collateral Agent in the Pledged Collateral, including, without limitation, with respect to all Pledged Collateral over which control may be obtained within the meaning of Section 8-106 of the UCC, all actions as may reasonably be requested from time to time by the Collateral Agent so that control of such Pledged Collateral is obtained and at all times held by the Collateral Agent. All of the foregoing shall be at the sole cost and expense of the Pledgor. |
(b) The Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant jurisdiction any financing statements and amendments thereto that contain the information required by Article 9 of the UCC of each applicable jurisdiction for the filing of any financing statement or amendment relating to the Pledged Collateral, without the signature of the Pledgor where permitted by law. The Pledgor
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agrees to provide all information reasonably required by the Collateral Agent in connection with the filing of any financing statement or amendment promptly to the Collateral Agent upon request. |
4. Representations and Warranties. The Pledgor represents and warrants to the Collateral Agent (for the benefit of the Secured Parties) as follows: |
(a) The Pledged Equity Interests and Pledged Debt have been duly authorized and validly issued, and are fully paid and non-assessable and subject to no options to purchase or similar rights. All information set forth in Schedule 1 relating to the Pledged Equity Interests and Pledged Debt is accurate and complete (it being understood that Schedule 1 sets forth all Pledged Debt now existing other than Pledged Debt owed to the Pledgor by a Loan Party that is not evidenced by a note or similar instrument). The Pledgor does not own, and does not have the option to purchase or similar right to acquire, any equity interests (including the right to vote or to otherwise control or participate in management) in or any indebtedness with respect to any Person other than the Loan Parties. |
(c) At the time the Pledged Collateral becomes subject to the Lien created by this Agreement, the Pledgor will be the sole, direct, legal and beneficial owner thereof, free and clear of any Lien except for the security interest created by this Agreement. |
(d) The pledge of the Pledged Collateral pursuant to this Agreement creates a valid and perfected first priority security interest in the Pledged Collateral, securing the payment and performance when due of the Secured Obligations. |
(e) The Pledgor has full power, authority and legal right to execute and deliver this Agreement and the other Loan Documents to which the Pledgor is party and to pledge the Pledged Collateral pursuant to this Agreement. |
(f) Each of this Agreement and the other Loan Documents to which the Pledgor is party has been duly authorized, executed and delivered by the Pledgor and constitutes a legal, valid and binding obligation of the Pledgor enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to equitable principles (regardless of whether enforcement is sought in equity or at law). |
(g) No authorization, approval, or other action by, and no notice to or filing with, any governmental authority, regulatory body or any other entity is required for the pledge by the Pledgor of the Pledged Collateral pursuant to this Agreement or for the execution and delivery by the Pledgor of this Agreement or the other Loan Documents to which the Pledgor is party or the performance by the Pledgor of its obligations hereunder and thereunder. |
(h) The execution and delivery by the Pledgor of this Agreement and the other Loan Documents to which the Pledgor is party, and the performance by the Pledgor of its obligations hereunder and thereunder, will not violate any provision of any applicable law or regulation or any order, judgment, writ, award or decree of any court, arbitrator or governmental authority, domestic or foreign, applicable to the Pledgor or any of its property, or the
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organizational or governing documents of the Pledgor or any agreement or instrument to which the Pledgor is party or by which it or its property is bound. |
(i) The Pledgor has taken all action required on its part for control (as defined in Section 8-106 of the UCC) to have been obtained by the Collateral Agent (for the benefit of the Secured Parties) over all Pledged Collateral with respect to which such control may be obtained pursuant to the UCC. No Person other than the Collateral Agent (acting for the benefit of Secured Parties) has control or possession of all or any part of the Pledged Collateral. Without limiting the foregoing, all certificates, agreements or instruments representing or evidencing the Pledged Collateral in existence on the date hereof have been delivered to the Collateral Agent in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank. With respect to any Pledged Equity Interest that is an uncertificated security, the Pledgor has caused the issuer thereof either (i) to register the Collateral Agent as the registered owner of such security or (ii) to agree in an authenticated record with the Pledgor and the Collateral Agent that such issuer will comply with instructions with respect to such security originated by the Collateral Agent without further consent of the Pledgor. |
(j) The Pledgor’s exact legal name, as defined in Section 9-503(a) of the UCC, is correctly set forth in Schedule 2 and the Pledgor has only the trade names listed on Schedule 2. The Pledgor is located (within the meaning of Section 9-307 of the UCC) and has its chief executive office in the state or jurisdiction set forth in Schedule 2. The information set forth in Schedule 2 is true and accurate in all respects. In the last five (5) years, the Pledgor has not previously changed its name, location, chief executive office, type of organization, jurisdiction of organization or organizational identification number from those set forth in Part A of Schedule 2 hereto, other than as disclosed in Part B thereof. |
(a) The Pledgor shall, at its own cost and expense, defend title to the Pledged Collateral and the first priority Lien of the Collateral Agent therein against the claim of any Person claiming against or through the Pledgor and shall maintain and preserve such perfected first priority Lien until such Lien is terminated and released in accordance with Section 18. |
(b) The Pledgor agrees that at any time and from time to time, at the expense of the Pledgor, the Pledgor will promptly execute and deliver all further instruments and documents that the Collateral Agent may reasonably request, make commercially reasonable efforts to obtain such agreements from third parties, and take all further action, that may be necessary or desirable, or that the Collateral Agent may reasonably request, in order to perfect and protect any security interest granted hereby or to enable the Collateral Agent to exercise and enforce its rights and remedies hereunder or under any other agreement with respect to any Pledged Collateral. |
(c) The Pledgor will not, without providing at least 10 days’ prior written notice to the Collateral Agent, change its legal name, identity, type of organization, jurisdiction of organization, corporate structure, location of its chief executive office or its principal place of business or its organizational identification number. The Pledgor will, prior to any change described in the preceding sentence, take all actions reasonably requested by the Collateral Agent to maintain the perfection and priority of the Collateral Agent’s security interest in the Pledged Collateral. |
opportunity to perform such obligation), and the expenses of the Collateral Agent incurred in connection therewith shall be payable by the Pledgor; provided that the Collateral Agent shall not be required to perform or discharge any obligation of the Pledgor. |
(a) The Collateral Agent may, without any other notice to or demand upon the Pledgor, assert all rights and remedies of a secured party under the UCC or other applicable law, including, without limitation, the right to take possession of, hold, collect, sell, lease, deliver, grant options to purchase or otherwise retain, liquidate or dispose of all or any portion of the Pledged Collateral. If notice prior to disposition of the Pledged Collateral or any portion thereof is necessary under applicable law, written notice mailed to the Pledgor at its notice address as provided in Section 16 hereof ten (10) days prior to the date of such disposition shall constitute reasonable notice. So long as the sale of the Pledged Collateral is made in a commercially reasonable manner, the Collateral Agent may sell such Pledged Collateral on such terms and to such purchaser(s) as the Collateral Agent in its absolute discretion may choose, without assuming any credit risk and without any obligation to advertise or give notice of any kind other than that necessary under applicable law. Without precluding any other methods of sale, the sale of the Pledged Collateral or any portion thereof shall have been made in a commercially reasonable manner if conducted in conformity with reasonable commercial practices of creditors disposing of similar property. At any sale of the Pledged Collateral, if permitted by applicable law, the Collateral Agent may be the purchaser, licensee, assignee or recipient of the Pledged Collateral or any part thereof and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Pledged Collateral sold, assigned or licensed at such sale, to use and apply any of the Secured Obligations as a credit on account of the purchase price of the Pledged Collateral or any part thereof payable at such sale. To the extent permitted by applicable law, the Pledgor waives all claims, damages and demands it may acquire against the Collateral Agent arising out of the exercise by it of any rights hereunder. The Pledgor hereby waives and releases to the fullest extent permitted by law any right or equity of redemption with respect to the Pledged Collateral, whether before or after sale hereunder, and all rights, if any, of marshalling the Pledged Collateral and any other security for
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the Secured Obligations or otherwise. At any such sale, unless prohibited by applicable law, the Collateral Agent or any custodian may bid for and purchase all or any part of the Pledged Collateral so sold free from any such right or equity of redemption. Neither the Collateral Agent nor any custodian shall be liable for failure to collect or realize upon any or all of the Pledged Collateral or for any delay in so doing, nor shall it be under any obligation to take any action whatsoever with regard thereto. The Collateral Agent shall not be obligated to clean-up or otherwise prepare the Pledged Collateral for sale. |
(b) All rights of the Pledgor to (i) exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 6(a), and (ii) receive the dividends and other distributions which it would otherwise be entitled to receive and retain pursuant to Section 6(b) shall immediately cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall have the sole right to exercise such voting and other consensual rights and receive and hold such dividends and other distributions as Pledged Collateral. |
(c) Any cash held by the Collateral Agent as Pledged Collateral and all cash Proceeds received by the Collateral Agent in respect of any sale of, collection from, or other realization upon all or any part of the Pledged Collateral shall be applied in whole or in part by the Collateral Agent to the payment of expenses incurred by the Collateral Agent in connection with the foregoing or incidental to the care or safekeeping of any of the Pledged Collateral or in any way relating to the Pledged Collateral or the rights of the Collateral Agent hereunder, including reasonable attorneys’ fees, and the balance of such proceeds shall be applied or set off against all or any part of the Secured Obligations in accordance with the Loan Documents. Any surplus of such cash or cash Proceeds held by the Collateral Agent and remaining after payment in full of all the Secured Obligations shall be paid over to the Pledgor or to whomsoever may be lawfully entitled to receive such surplus. The Pledgor shall remain liable for any deficiency if such cash and the cash Proceeds of any sale or other realization of the Pledged Collateral are insufficient to pay the Secured Obligations and the fees and other charges of any attorneys employed by the Collateral Agent to collect such deficiency. |
(d) If the Collateral Agent shall determine to exercise its rights to sell all or any of the Pledged Collateral pursuant to this Section, the Pledgor agrees that, upon request of the Collateral Agent, the Pledgor will, at its own expense, do or cause to be done all such acts and things as may be necessary to make such sale of the Pledged Collateral or any part thereof valid and binding and in compliance with applicable law. |
of any description. All rights of the Collateral Agent and Liens hereunder, and all Secured Obligations of the Pledgor hereunder, shall be absolute and unconditional irrespective of: |
(a) any illegality or lack of validity or enforceability of any Secured Obligation or any related agreement or instrument; |
(b) any change in the time, place or manner of payment of, or in any other term of, the Secured Obligations, or any rescission, waiver, amendment or other modification of this Agreement, any other Loan Document or any other agreement, including any increase in the Secured Obligations resulting from any extension of additional credit or otherwise; |
(c) any taking, exchange, substitution, release, impairment or non-perfection of any Pledged Collateral or any other collateral, or any taking, release, impairment, amendment, waiver or other modification of any guaranty, for all or any of the Secured Obligations; |
(d) any manner of sale, disposition or application of proceeds of any Pledged Collateral or any other collateral or other assets to all or part of the Secured Obligations; |
(e) any default, failure or delay, willful or otherwise, in the performance of the Secured Obligations; |
(f) any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to, or be asserted by, the Pledgor against the Collateral Agent or any other Secured Party; or |
(g) any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Secured Obligations or any existence of or reliance on any representation by the Collateral Agent that might vary the risk of the Pledgor or otherwise operate as a defense available to, or a legal or equitable discharge of, the Pledgor or any other grantor, guarantor or surety. |
Collateral Agent:
Commonwealth Bank of Australia
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Director, Project Finance
Tele: (000) 000-0000; (000) 000-0000
Fax: (000) 000-0000
Pledgor:
[●]
c/o Midway Gold Corp.
0000 Xxxxx Xxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Chief Financial Officer
Tele: (000) 000-0000
Fax: (000) 000-0000
With a copy to (which shall not constitute notice):
Xxxxxx & Xxxxxxx LLP
00 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Tele: (000) 000-0000
Fax: (000) 000-0000
A party may change the addresses given above by giving the other party written notice of the new address in the manner set forth above.
14. Continuing Security Interest; Further Actions. This Agreement shall create a continuing first priority Lien in the Pledged Collateral and shall (a) remain in full force and effect until terminated in accordance with Section 18, (b) be binding upon the Pledgor, its successors and assigns, and (c) inure to the benefit of the Collateral Agent and its successors, transferees and assigns; provided that the Pledgor may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment or occurrence resulting in release or termination in accordance with Section 18 is rescinded or must otherwise be restored, refunded or returned by any Secured Party. |
documents as the Pledgor shall reasonably request to evidence the release of such Pledged Collateral as may then remain in the possession of the Collateral Agent from the security interest granted hereby (without recourse and without any representation or warranty) and (b) execute and deliver to the Pledgor a proper instrument or instruments acknowledging the satisfaction and termination of this Agreement with respect to all Pledged Collateral. |
16. Governing Law. This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the laws of the State of Nevada. |
18. Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or in electronic format shall be effective as delivery of a manually executed counterpart of this Agreement. |
19. Entire Agreement. This Agreement constitutes the entire contract among the parties with respect to the subject matter hereof and supersede all previous agreements and understandings, oral or written, with respect thereto. |
[signature page follows]
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SFDOCS01/313128.7Midway — Pledge Agreement
([●])
EXECUTION VERSION
Exhibit 10.4
The parties hereto have executed this Agreement as of the date first above written.
By:____________________________________
Name:
Title:
1
SFDOCS01/313128.7
Commonwealth Bank of Australia, as Collateral Agent
By:____________________________________
Name:
Title:
SFDOCS01/313128.7 Midway — Pledge Agreement
([●])