Exhibit 10.26.3
PLEDGE AGREEMENT
NRG GENERATING (U.S.) INC.,
and
MEESPIERSON CAPITAL CORP.,
as Security Trustee
December 17, 1997
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is made as of this 17 day of December,
1997, between NRG GENERATING (U.S.) INC., a Delaware corporation having
offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(the "Borrower") and MeesPierson Capital Corp., a Delaware corporation
having offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("MPCC"), as
security trustee (the "Pledgee").
WITNESSETH:
WHEREAS:
A. Pursuant to a credit agreement dated as of December 17, 1997 (the
"Credit Agreement") made by and among (i) the Borrower, as borrower,
(ii) MPCC, as arranger, (iii) the banks and financial institutions
whose names and addresses are set out in Schedule 1 thereto (together,
the "Lenders") and (iv) MPCC, as agent (in such capacity, the "Agent')
and security trustee (in such capacity the "Security Trustee") for the
Lenders, the Lenders, subject to the terms thereof, have agreed to make
advances to the Borrower of up to Thirty Million United States Dollars
(US$30,000,000) outstanding at any time (the "Credit Facility");
B. As of the date hereof, the Borrower is the registered and
beneficial owner of 83% of the issued and outstanding shares of capital
stock (the "Pledged Shares") of O'Brien (Philadelphia) Cogeneration
Inc., a Delaware corporation (the "Pledged Corporation") and the
Pledged Shares are represented by stock certificates described in
Schedule 1 hereto (collectively, the "Stock Certificates"); and
C. It is a condition precedent to the availability of the Credit
Facility to the Borrower that the Borrower execute and deliver to the
Pledgee, among other things, this Pledge Agreement.
NOW, THEREFORE, in consideration of the premises the Borrower
agrees with the Pledgee as follows:
1. Defined Terms. Unless otherwise defined herein, terms
defined in the Credit Agreement shall have the same meanings when used
herein.
2. Grant of Security. As security for the full and prompt
payment to the Agent and the Lenders of all sums owing by the Borrower
to the Lenders whether for
principal, interest, fees, expenses or otherwise, under and in
connection with the Credit Agreement, the Note and the other Security
Documents or otherwise and the due and punctual performance by the
Borrower of its obligations in connection therewith (all of the above
now or hereafter existing, together the "Obligations"), the Borrower
hereby pledges, assigns, transfers and delivers to the Pledgee as Agent
and Security Trustee for the Lenders the Pledged Shares and hereby
grants to the Pledgee a first lien on, and first security interest in,
the Pledged Shares.
3. Pledge Documents. Concurrently with the execution of
this Pledge Agreement, the Borrower shall execute and deliver to the
Pledgee Irrevocable Proxies in favor of the Pledgee in respect of the
Pledged Shares in the form set out in Exhibit A hereto (the
"Irrevocable Proxies"), and shall deliver to the Pledgee the Stock
Certificates together with signed, undated stock powers pertaining
thereto duly executed in blank.
4. Representations and Warranties. The Borrower represents
and warrants that:
(i) it is the legal and
beneficial owner of, and has good and marketable
title to, the Pledged Shares, subject to no
pledge, lien, mortgage, hypothecation, security
interest, charge, option or other encumbrance
whatsoever, except the lien and security interest
created by this Pledge Agreement and the delivery
of the Pledged Shares to the Pledgee;
(ii) it has full power, authority
and legal right to execute, deliver and perform
this Pledge Agreement and to create the
collateral security interest for which this
Pledge Agreement provides;
(iii) the Pledged Shares of the
Pledged Corporation (a) have been duly and
validly issued and are fully paid and
nonassessable and (b) constitute eighty-three
percent (83%) of the issued and outstanding
capital stock of the Pledged Corporation, the
only capital stock of the Pledged Corporation not
owned by the Borrower being the seventeen percent
(17%) owned by the Revocable Trust of ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇ Shares");
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(iv) as of the date hereof, the
Pledged Corporation has not entered into any
options, warrants or other agreements to issue
additional capital stock and there are no voting
trusts or other shareholder agreements or
arrangements relating to the Pledged Shares other
than in respect of the ▇▇▇▇▇▇▇▇ Shares;
(v) this Pledge Agreement
constitutes a valid obligation of the Borrower,
legally binding upon it and enforceable in
accordance with its terms, except to the extent
that such enforcement may be limited by equitable
principles, principles of public policy or
applicable bankruptcy, insolvency,
reorganization, moratorium or other laws
affecting generally the enforcement of creditor's
rights;
(vi) the pledge, hypothecation,
assignment and delivery of the Pledged Shares
pursuant to this Pledge Agreement creates a valid
first perfected security interest in each of the
Pledged Shares and the proceeds thereof;
(vii) except for consents obtained
prior to the date hereof, no consent of any other
party (including stockholders of the Borrower) is
required in connection with the execution,
delivery, performance, validity, enforceability
or enforcement of this Pledge Agreement, and,
except to the extent obtained prior to the date
hereof, no consent, license, approval or
authorization of, or registration or declaration
with, any governmental authority, bureau or
agency is required in connection with the
execution, delivery, performance, validity,
enforceability or enforcement of this Pledge
Agreement; and
(viii) the execution, delivery and
performance of this Pledge Agreement will not
violate or contravene any provision of any
existing law or regulation or decree of any
court, governmental authority, bureau or agency
having jurisdiction in the premises or of the
Articles of Incorporation, by-laws or other
charter documents of the Borrower or of any
mortgage, indenture, security agreement,
contract, undertaking or other agreement to
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which the Borrower is a party or
which purports to be binding upon it or any of
its properties or assets and will not result in
the creation or imposition of any lien, charge or
encumbrance on, or security interest in, any of
its properties or assets pursuant to the
provisions of any such mortgage, indenture,
security agreement, contract, undertaking or
other agreement.
5. Covenants. The Borrower hereby covenants that during the
continuance of this security:
(i) it shall warrant and defend
the right and title of the Pledgee conferred by
this Pledge Agreement in and to the Pledged
Shares at the cost of the Borrower against the
claims and demands of all persons whomsoever;
(ii) except as herein provided,
without the prior written consent of the Pledgee,
it shall not sell, assign, transfer, charge,
pledge or encumber in any manner any part of the
Pledged Shares or suffer to exist any encumbrance
on the Pledged Shares;
(iii) without the prior written
consent of Pledgee, it shall not vote the Pledged
Shares in favor of the consolidation, merger,
dissolution, liquidation or any other corporate
reorganization of the Pledged Corporation, except
as permitted under Section 10.1B(viii) of the
Credit Agreement;
(iv) without the prior written
consent of the Pledgee it shall not take from the
Pledged Corporation any undertaking or security
in respect of its liability hereunder or in
respect of any other liability of the Pledged
Corporation to the Borrower and the Borrower
shall not prove nor have the right of proof in
competition with the Pledgee, for any monies
whatsoever owing from the Pledged Corporation to
the Borrower, in any insolvency or liquidation,
or analogous proceedings under any applicable
law, of the Borrower; and
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(v) The Pledged Corporation shall
not issue any additional shares of its capital
stock nor enter into any options, warrants or
other agreements to do so.
6. Delivery of Additional Shares. If the Borrower shall
become entitled to receive or shall receive any stock certificates
(including, without limitation, any certificate representing a stock
dividend or a distribution in connection with any reclassification,
increase or reduction of capital, or issued in connection with any
reorganization), option or rights, whether as an addition to, in
substitution of, or in exchange for any of the Pledged Shares or upon
acquisition of the ▇▇▇▇▇▇▇▇ Shares as contemplated by the Credit
Agreement, the Borrower agrees to accept the same as the agent of the
Pledgee and to hold the same in trust for the benefit of the Pledgee
and to deliver the same forthwith to the Pledgee in the exact form
received, with the endorsement of the Borrower when necessary and/or
appropriate undated stock powers duly executed in blank, and
irrevocable proxies for any stock certificates so received, in
substantially the form of Exhibit A, to be held by the Pledgee, subject
to the terms hereof, as additional collateral security for the
Obligations. Any sums paid upon or in respect of the Pledged Shares on
the liquidation or dissolution of the Pledged Corporation shall be paid
over to the Pledgee to be held by it as additional collateral security
for the Obligations.
7. Collateral. All property at any time pledged to the
Pledgee hereunder by the Borrower (whether described herein or not) and
all income therefrom and proceeds thereof, are herein collectively
sometimes called the "Collateral".
8. Voting Rights. The Pledgee shall as pledgee and as the
holder of the Irrevocable Proxies receive notice (if an Event of
Default shall have occurred and is continuing) and shall have the right
to vote the Pledged Shares at its own discretion at any annual or
special meeting of the shareholders of the Pledged Corporation, as the
case may be, provided, however, that the Pledgee shall not exercise
such right to vote unless an Event of Default shall have occurred and
be continuing.
9. Default. The security constituted by this Pledge
Agreement shall become immediately enforceable on the occurrence of an
Event of Default under the Credit Agreement.
10. Remedies. At any time after the security constituted by
this Pledge Agreement shall have become enforceable as aforesaid, the
Pledgee shall be entitled without further notice to the Borrower:
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(i) to sell, assign or convert
into money all or any part of the Collateral in
such manner and upon such terms and for such
consideration (whether in cash, securities or
other assets, whether deferred or not and whether
at public or private sale) as the Pledgee may in
its absolute discretion think fit with the right
to the Pledgee upon such sale to purchase the
whole or any part of the Collateral, free of any
right or equity of redemption in the Borrower,
which right and/or equity is hereby expressly
waived;
(ii) to cause the resignation of
the then existing directors and officers of the
Pledged Corporation and to elect new directors
and appoint new officers of the Pledged
Corporation and to exercise through such
directors and officers the powers of management
of the Pledged Corporation; and
(iii) to exercise all voting and
other corporate rights at any meeting of the
Pledged Corporation and exercise any and all
rights of conversion, exchange, subscription or
any other rights, privileges or options
pertaining to the Pledged Shares of the Pledged
Corporation as if it was the absolute owner
thereof, including, without limitation, the right
to exchange at its discretion, any and all of
such Pledged Shares upon the merger,
consolidation, reorganization, recapitalization
or other readjustment of the Pledged Corporation
or, upon the exercise by such Pledged Corporation
or the Pledgee of any right, privilege or option
pertaining to any of the Pledged Shares, and in
connection therewith, to deposit and deliver any
and all of the Pledged Shares of the Pledged
Corporation with any committee, depository,
transfer agent, registrar or other designated
agency upon such terms and conditions as it may
determine, all without liability except to
account for property actually received by it.
In addition to the rights and remedies granted to it in this Pledge
Agreement and in any other instrument or agreement securing, evidencing
or relating to any of the Obligations, the Pledgee shall have rights
and remedies of a secured party under the Uniform Commercial Code of
the State of New York.
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11. No Duty on Pledgee. The Pledgee 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.
12. Application of Proceeds. All moneys collected or
received by the Pledgee pursuant to this Pledge Agreement shall be
dealt with as provided in Section 9.3 of the Credit Agreement.
13. Termination. When all of the Obligations shall have
been fully satisfied, the Pledgee agrees that it shall forthwith
release the Borrower from its Obligations hereunder and the Irrevocable
Proxies shall terminate forthwith and be delivered to the Borrower
forthwith together with the other items furnished to the Pledgee
pursuant to Section 3 hereof.
14. Further Assurances. The Borrower shall from time to
time, and at all times after the security constituted by this Pledge
Agreement shall have become enforceable, execute all such further
instruments and documents and do all such things as the Pledgee may
reasonably deem desirable for the purpose of obtaining the full benefit
of this Pledge Agreement and of the rights, title, interest, powers,
authorities and discretions conferred on the Pledgee by this Pledge
Agreement including (without limitation) causing the Pledged
Corporation to execute any such instruments and documents as aforesaid.
The Borrower hereby irrevocably appoints the Pledgee its attorney-in-
fact for it and in its name and on its behalf and as its act and deed
to execute, seal and deliver and otherwise perfect any deed, assurance,
agreement, instrument or act which it may reasonably deem desirable for
any of the purposes of this Pledge Agreement; provided that the Pledgee
shall not exercise such power until the security constituted by this
Pledge Agreement shall have become enforceable. The Pledgee shall have
full power to delegate this power of attorney but no such delegation
shall preclude the subsequent exercise of such power by the Pledgee
itself or preclude the Pledgee from subsequent delegation to some other
person and any delegation may be revoked by the Pledgee at any time.
15. No Waiver; Remedies Cumulative and Exclusive. The
Pledgee 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 Pledgee, and then only
to the extent therein set forth. A waiver by the Pledgee of any right
or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy which the Pledgee would otherwise have had on
any future occasion. No failure to exercise nor any delay in
exercising on the part of the Pledgee, any right, power
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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 hereunder
provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law.
16. Changes in Writing; Successors and Assigns. None of the
terms or provisions of this Pledge Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed
by the Pledgee. This Pledge Agreement and all obligations of the
Borrower hereunder shall be binding upon the successors and assigns of
the Borrower and shall, together with the rights and remedies of the
Pledgee hereunder, inure to the benefit of the Pledgee, its respective
successors and assigns.
17. Notices. All notices, requests, demands and other
communications to any party hereunder shall be in writing (including
prepaid overnight courier, facsimile transmission or similar writing)
and shall be given to the Borrower at the address or telecopy number
set forth below and to the Lenders, the Agent and the Security Trustee
at their address and telecopy number set forth in Schedule 1 to the
Credit Agreement or at such other address or telecopy number as such
party may hereafter specify for the purpose by notice to each other
party hereto. Each such notice, request or other communication shall
be effective (i) if given by telecopy, when such telecopy is
transmitted to the telecopy number specified in this Section and
telephonic confirmation of receipt thereof is obtained or (ii) if given
by mail, prepaid overnight courier or any other means, when received at
the address specified in this Section or when delivery at such address
is refused.
If to the Borrower:
NRG Generating (U.S.) Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President-CFO
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: M. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If the Pledgee:
MeesPierson Capital Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
18. Governing Law. This Pledge Agreement shall be governed by
and construed in accordance with the laws of the State of New York
without regard to the principles of conflicts of law thereof.
19. Submission to Jurisdiction. The Borrower hereby irrevocably
submits to the jurisdiction of the courts of the State of New York and
of the United States District Court for the Southern District of New
York in any action or proceeding brought against it by the Pledgee
under this Agreement or under any document delivered hereunder and
hereby irrevocably agrees that valid service of summons or other legal
process on it may be effected by serving a copy of the summons and
other legal process in any such action or proceeding on the Borrower by
mailing (certified or registered mail) or delivering the same by hand
to the Borrower at the address indicated for notices in Section 18.
The service, as herein provided, of such summons or other legal process
in any such action or proceeding shall be deemed personal service and
accepted by the Borrower as such, and shall be legal and binding upon
the Borrower for all the purposes of any such action or proceeding. A
judgment (a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of any indebtedness of the
Borrower to the Pledgee or the Lenders) after exhaustion of any appeals
taken against the Borrower in any such legal action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the
judgment. The Borrower will advise the Pledgee promptly of any change
of address for the purpose of service of process. Notwithstanding
anything herein to the contrary, the Pledgee or the Lenders may bring
any legal action or proceeding in any other appropriate jurisdiction.
20. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE PLEDGEE
HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
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PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST ANY
OTHER PARTY HERETO ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY
WAY CONNECTED WITH THIS PLEDGE AGREEMENT.
21. Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent
permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction and shall be liberally construed
in favor of the Pledgee in order to carry out the intentions of the
parties hereto as nearly as may be possible; and (ii) the invalidity
and unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any
other jurisdiction.
22. Counterparts. This Pledge Agreement may be signed in any
number of counterparts, each of which shall be an original with the
same effect as if the signatures thereto and hereto were upon the same
instrument.
23. Headings. In this Pledge Agreement, section headings are
inserted for convenience of reference only and shall be ignored in the
interpretation of this Pledge Agreement.
IN WITNESS whereof the parties hereto have caused this Pledge
Agreement to be duly executed the day and year first above written.
NRG GENERATING (U.S.) INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-CFO
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MEESPIERSON CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Exec. V.P.
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned, the registered and beneficial owner of the
below described shares of O'BRIEN (PHILADELPHIA) COGENERATION INC., a
corporation organized under the laws of the State of Delaware (the
"Company"), hereby makes, constitutes and appoints MeesPierson Capital
Corp. ("the Pledgee") with full power to appoint a nominee or nominees
to act hereunder from time to time, the true and lawful attorney and
proxy of the undersigned to vote the issued shares of the Company
represented by Share Certificate(s) No(s). at all annual and special
meetings of shareholders of the Company or take any action by written
consent with the same force and effect as the undersigned might or
could do, hereby ratifying and confirming all that the said attorney or
their nominee or nominees shall do or cause to be done by virtue
hereof.
The said shares have been pledged (the "Pledge") to the
Pledgee pursuant to a Pledge Agreement dated December __, 1997.
This power and proxy is coupled with an interest and is
irrevocable and shall remain irrevocable so long as the Pledge is
outstanding and is in full force and effect.
IN WITNESS whereof the undersigned has caused this instrument
to be duly executed this __ day of ________, ________.
NRG GENERATING (U.S.) INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President-CFO
SCHEDULE 1
STOCK CERTIFICATES REPRESENTING PLEDGED SHARES
Certificate # # of Shares
6 100
