SHARE PLEDGE AGREEMENT
EXHIBIT
3.4
EXECUTION
VERSION
This
Share Pledge Agreement
(the
“Agreement”)
is
made as of April 23, 2008, by and among Beams
Power Investment Limited,
a
company with limited liability registered under the BVI Business Companies
Act, 2004 (as amended) of the British Virgin Islands (the “Pledgor”),
with
its registered office located at Akara Building, 00 Xx Xxxxxx Xxxxxx, Xxxxxxxx
Cay I, Road Town, Tortola, British Virgin Islands, Warburg
Pincus Private Equity IX, L.P.
(the
“Secured
Party”),
and
Warburg
Pincus Private Equity IX, L.P.,
in its
capacity as collateral agent (with its successors in such capacity, the
“Collateral
Agent”).
WHEREAS,
Pledgor
has entered into that certain Note Purchase Agreement, dated as of the date
hereof (as may be amended, supplemented, restated or otherwise modified from
time to time, the “Note
Purchase Agreement”),
with
the Secured Party pursuant to which Secured Party has agreed to purchase a
note
from the Pledgor in the aggregate principal amount of U.S.$30,000,000 in
consideration for (i) the issuance to the Secured Party by Pledgor of a note
exchangeable into shares of common stock, par value U.S.$0.0001 per share (the
“Exchangeable
Shares”),
of
Synutra International, Inc., a Delaware corporation (the “Company”)
owned
by the Pledgor (as may be amended, supplemented, restated or otherwise modified
from time to time, the “Note”),
whereby the Secured Party's basis in the Note shall be U.S.$30,000,000, and
(ii)
the Company’s agreement to register such Exchangeable Shares for resale pursuant
to one or more registration statements filed with the U.S. Securities and
Exchange Commission; and
WHEREAS,
the
Pledgor directly owns, and is the sole legal and beneficial owner of, the issued
and outstanding capital stock and other equity interests set forth on
Exhibit
A-1
attached
hereto and made a part hereof (the “Equity
Interests”),
and
such Equity Interests are a part of all of the issued and outstanding capital
stock of, and other equity interests in, the Company of which the Pledgor is
the
sole legal and beneficial owner of, which are set forth on Exhibit
A-2
attached
hereto and made a part hereof (the “Owned
Equity Interests”);
and
WHEREAS,
the
Pledgor is required to execute and deliver this Agreement pursuant to the Note
Purchase Agreement.
NOW,
THEREFORE,
for and
in consideration of the foregoing and of any financial accommodations or
extensions of credit heretofore, now or hereafter made to or for the benefit
of
the Secured Party pursuant to the Note Purchase Agreement, the Note or any
other
agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor, the Secured Party
and
the Collateral Agent hereby agree as follows:
Section
1. Defined
Terms.
Unless
otherwise defined herein, each capitalized term used herein that is defined
in
the Note Purchase Agreement shall have the meaning specified for such term
in
the Note Purchase Agreement. Unless otherwise defined herein or in the Note
Purchase Agreement, terms used in Article 8 or Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York are
used
herein as therein defined.
1
Section
2. Pledge.
The
Pledgor hereby pledges and charges to the Collateral Agent, for the benefit
of
the Secured Party, and grants to the Collateral Agent for the benefit of the
Secured Party, a security interest in, the following (collectively, the
“Pledged
Collateral”):
2.1 All
of
the right, title and interest of the Pledgor in the Equity Interests, whether
now existing or hereafter arising, and the certificates representing the shares
of such capital stock (such now-existing shares being identified on Exhibit
A-1
attached
hereto and made a part hereof) (all of said Equity Interests collectively
referred to as the “Pledged
Stock”),
herewith delivered to the Collateral Agent, accompanied by instruments of
transfer, power or assignment in the form of Exhibit
B
attached
hereto and made a part hereof duly executed in blank (the “Powers”),
and
all securities, cash, instruments, rights and other property from time to time
received, receivable or otherwise distributed, in each case, in exchange for
any
or all of the Pledged Stock;
2.2 All
Additional Pledged Stock (as defined in Section 13.1
below),
and the certificates representing such Additional Pledged Stock (any such
Additional Pledged Stock shall constitute part of the Pledged Stock and the
Collateral Agent is irrevocably authorized to amend Exhibit
A-1
from
time to time to reflect such Additional Pledged Stock), and all securities,
cash, instruments, rights and other property from time to time received,
receivable or otherwise distributed, in each case, in exchange for any or all
of
the Additional Pledged Stock; and
2.3 All
Additional Equity Interests (as defined in Section 13.2
below),
and the certificates or documents representing such Additional Equity Interests
(any such Additional Equity Interests shall constitute part of the Pledged
Stock
and the Collateral Agent is irrevocably authorized to amend Exhibit
A-1
from
time to time to reflect such Additional Equity Interests), and all securities,
cash, instruments, rights and other property from time to time received,
receivable or otherwise distributed, in each case, in exchange for any or all
of
Additional Equity Interests.
2.4 Subject
to Section 10.1
hereof,
all proceeds of the collateral described in Section 2.1
through
Section 2.3
hereof.
Section
3. Security
for Secured Obligations.
During
the term of this Agreement, the Pledged Collateral secures the full and prompt
payment, performance and observance when due (whether at stated maturity, by
acceleration or otherwise) of (i) the payment of all of the Principal (as
defined in the Note) (the "Principal"),
Premium (as defined in the Note) (the "Premium")
and
Late Charges (as defined in the Note) (the "Late
Charges"),
if
any, and (ii) all other obligations owing by the Pledgor to the Secured Party
from time to time under the Note Purchase Agreement, the Note or any other
Transaction Document (as defined in the Note) (the “Transaction
Documents”),
including, without limitation, interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless
of
whether allowed or allowable in such proceeding, in each case that are incurred
prior to the cancellation of the Note pursuant to Section 20 of the Note,
whether by payment of cash in full or upon exchange for shares of Common Stock
(all such obligations referred to in clauses (i) and (ii) now or hereafter
existing being hereinafter collectively referred to as the “Secured
Obligations“).
2
Section
4. Delivery
of Pledged Collateral; Registration and Acknowledgments.
All
certificates representing or evidencing the Pledged Collateral, if any, shall
be
delivered to, and held by or on behalf of, the Collateral Agent pursuant hereto
and shall be in suitable form for transfer by delivery and shall be accompanied
by a Power duly executed in blank, in form and substance satisfactory to the
Collateral Agent. After the occurrence and during the continuance of an Event
of
Default (as defined in the Note) (an "Event
of Default"),
the
Secured Party may send a request in writing to the Collateral Agent for transfer
to or to register in the name of the Secured Party or any of its nominees any
or
all of the Pledged Collateral (the “Transfer
Request”)
with a
copy of such request to the Pledgor. Commencing on the second (2nd) Business
Day
(as defined in the Note) (“Business
Day”)
following the receipt of the Transfer Request, the Collateral Agent shall have
the right to transfer to or to register in the name of the Secured Party or
any
of its nominees any or all of the Pledged Collateral. In addition, the Secured
Party shall have the right solely at its own expense at any time to direct
the
Collateral Agent in writing to exchange certificates or instruments representing
or evidencing Pledged Collateral for certificates or instruments of smaller
or
larger denominations.
Section
5. Pledged
Collateral Adjustments.
5.1 If,
during the term of this Agreement, any stock dividend, reclassification,
readjustment or other change is declared or made in the capital structure of
the
Company, or any option included within the Pledged Collateral is exercised,
or
both, or any subscription warrants, shares, or any other rights or options
shall
be issued in connection with the Pledged Collateral, then all new, substituted
and additional shares, warrants, rights, options or other securities, issued
by
reason of any of the foregoing, shall be immediately delivered to and held
by
the Collateral Agent, under the terms of this Agreement and shall constitute
Pledged Collateral hereunder.
5.2 In
connection with a partial exchange of the Note, that portion of the Pledged
Stock, Additional Pledged Stock and Additional Equity Interests equal to (A)
U.S.$175,781,250 multiplied by the Exchanged Percentage, divided by (B) the
Weighted Average Price (as defined in the Note) (the "Weighted
Average Price")
for
the sixty (60) consecutive Trading Day (as defined in the Note) (a "Trading
Day")
period
ending on most recent Evaluation Date may be reduced or removed from the Pledged
Collateral, whereupon the secured interest on such shares of Pledged Stock,
Additional Pledged Stock and Additional Equity Interests removed from the
Pledged Collateral shall terminate automatically and immediately, and if
requested by the Pledgor, the certificates representing such shares of Pledged
Stock,
Additional Pledged Stock and Additional Equity Interests removed from the
Pledged Collateral shall be returned immediately to the Pledgor;
provided,
however,
that no
Pledged Stock, Additional Pledged Stock or Additional Equity Interests may
be
reduced or removed from the Pledged Collateral to the extent such reduction or
removal would cause (X) the product derived by multiplying (i) the remaining
shares of Pledged Stock, Additional Pledged Stock and Additional Equity
Interests following such reduction or removal, by (ii) the Closing Sale Price
of
the Common Stock on the latest Trading Day immediately preceding such reduction
or removal, to be less than (Y) the product of two times the sum of the
remaining Principal and remaining Premium following such partial exchange of
the
Note.
For
purposes of this Section 5.2, the "Exchanged
Percentage"
means
(I) the amount of Principal being exchanged divided by (II)
U.S.$30,000,000.
3
5.3 The
Pledgor and the Secured Party hereby authorize the Collateral Agent to amend
Exhibit
A-1
to
reflect all adjustments to the Pledged Collateral as set forth
herein.
Section
6. Subsequent
Changes Affecting Pledged Collateral.
The
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of distributions, reorganization or other exchanges, offers
to purchase and voting rights), and the Pledgor agrees that neither the Secured
Party nor the Collateral Agent shall have any obligation to inform the Pledgor
of any such changes or potential changes or to take any action or omit to take
any action with respect thereto. The Secured Party may, after the occurrence
and
during the continuance of an Event of Default, at its option and with ten (10)
Business Days advance written notice to the Pledgor, transfer or register (or
direct the Collateral Agent in writing to transfer or register) the Pledged
Collateral or any part thereof into its or its nominee’s name with or without
any indication that such Pledged Collateral is subject to the security interest
hereunder.
Section
7. Covenants
of the Pledgor
7.1 The
Pledgor agrees that it shall take all necessary steps and actions to perform
its
obligations hereunder and effect the transactions contemplated herein; and
to do
and perform all things required to be done and performed by it under this
Agreement prior to and after the Closing Date.
7.2 The
Pledgor agrees to execute and deliver, or cause to be executed or delivered,
any
and all other agreements, instruments, or documents which the Secured Party
or
the Collateral Agent may reasonably request in order to grant, perfect and
maintain secured interests on or in the Pledged Collateral.
7.3 Without
limiting the generality of the foregoing, the Pledgor shall, at the Secured
Party’s expense and in such manner and form as the Secured Party or the
Collateral Agent may reasonably require, give, execute, deliver, file and record
any financing statement, notice, instrument, document, agreement or other papers
that may be necessary or desirable to enable the Collateral Agent to (a) create,
preserve, perfect, procure, substantiate or validate any security interest
granted pursuant hereto, (b) create or maintain control (as defined in the
UCC)
with respect to any such security interests in any investment property (within
the meaning of the UCC) or (c) enable the Collateral Agent to exercise and
enforce its rights and the rights of the Secured Party hereunder with respect
to
such security interest. To the extent permitted by applicable law, the Pledgor
hereby authorize the Collateral Agent to execute and file, in the name of the
Pledgor as debtor or otherwise, UCC financing or continuation statements (which
may be carbon, photographic, photostatic or other reproductions of a financing
statement relating to this Agreement) relative to all or any part of the Pledged
Collateral that the Collateral Agent may reasonably deem necessary or
appropriate to further perfect, or maintain the perfection of, the security
interests granted by Pledgor hereunder. The Pledgor shall enter, or shall
procure the entry, in its register of relevant charges (the "Register
of Charges")
maintained by the Pledgor pursuant to Part VIII of the BVI Business Companies
Act, 2004 (as the same may be amended from time to time) (the "BC
Act")
such
particulars regarding the charge created by this Agreement as are specified
in
section 162 of the BC Act (or any similar provision in any statute pursuant
to
which the Pledgor is incorporated or existing from time to time) and submit
a
copy of such revised Register of Charges to its registered agent in the British
Virgin Islands to keep at the Pledgor’s registered office and at the office of
its registered agent in the British Virgin Islands. Unless otherwise agreed
with
the Secured Party, the Pledgor shall make an application, or procure that an
application is made, in the approved form to the Registrar of Corporate Affairs
in the British Virgin Islands (the “Registrar”)
to
register the charge created by this Agreement in the register of registered
charges kept by the Registrar for the Pledgor and, forthwith upon receipt by
the
Pledgor of the certificate of registration of the charge issued by the
Registrar, send a copy of such certificate of registration to the Company and
the Collateral Agent.
4
Section
8. Representations
and Warranties.
On the
date hereof and on each date of pledge of Additional Pledged Stock and
Additional Equity Interests hereunder, the Pledgor represents and warrants
to
the Secured Party and the Collateral Agent as follows:
8.1 The
Pledgor is the sole legal and beneficial owner of the Equity Interests set
forth
on Exhibit
A-1
attached
hereto and made a part hereof, as amended from time to time, in each case free
and clear of any Lien (as defined in the Note) (a "Lien"),
except for the Lien created by this Agreement and Permitted Liens (as defined
in
the Note Purchase Agreement) (the "Permitted
Liens");
8.2 Any
Additional Pledged Stock and Additional Equity Interests will be free and clear
of any Lien, except for the Lien created by this Agreement and Permitted
Liens;
8.3 All
of
the Pledged Stock and Owned Equity Interests has been duly authorized and
validly issued, is fully paid and non-assessable;
8.4 All
of
the Pledged Stock is presently represented by the certificates listed on
Exhibit
A-1
hereto.
As of the date hereof, there are no existing options, warrants, calls or
commitments of any character whatsoever relating to the Pledged
Stock;
8.5 The
Pledgor has full power and authority to enter into and perform all of its
obligations under this Agreement;
8.6 There
are
no restrictions upon the voting rights associated with, or upon the transfer
of,
any of the Pledged Collateral except pursuant to the Securities Act of 1933,
as
amended (the “Securities
Act”);
8.7 The
Pledgor has the right to vote, pledge, assign and grant a security interest
in
or otherwise transfer such Pledged Collateral free of any Liens (as defined
in
the Note) except for Permitted Liens;
8.8 No
authorization, approval, or other action by, and no notice to or filing with,
any governmental body, agency or official is required either (i) for the pledge
by the Pledgor of the Pledged Collateral pursuant to this Agreement or for
the
execution, delivery or performance of this Agreement by the Pledgor or (ii)
for
the exercise by the Secured Party or the Collateral Agent, as applicable, of
the
voting or other rights provided for in this Agreement or the remedies in respect
of the Pledged Collateral pursuant to this Agreement (except as may be required
in connection with such disposition by laws affecting the offering and sale
of
securities generally and realization of collateral);
5
8.9 The
pledge of the Pledged Collateral pursuant to this Agreement, together with
the
delivery of the stock certificates pertaining thereto to the Collateral Agent,
creates a valid and perfected first priority security interest in the Pledged
Collateral, in favor of the Collateral Agent for the benefit of the Secured
Party, securing the full payment and performance of the Secured
Obligations;
8.10 This
Agreement has been duly authorized, executed and delivered by and on behalf
of
the Pledgor and constitutes the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its
terms;
8.11 There
is
no action, suit, proceeding, governmental investigation or arbitration, at
law
or in equity, or before or by any governmental body, agency or official,
pending, or to the knowledge of the Pledgor, threatened against the Pledgor
or
any of its subsidiaries or any of its or their property which will materially
and adversely affect the ability of the Pledgor to perform its obligations
under
this Agreement;
8.12 The
execution, delivery and performance of this Agreement by the Pledgor (i) does
not violate, constitute a breach of or a default (with the passage of time
or
otherwise) under, require the consent of any person or a governmental body,
agency or official or result in the imposition of a Lien (other than the Lien
created by this Agreement) on any assets of the Pledgor or any of its
subsidiaries under or pursuant to (x) any indenture, mortgage, or any other
agreement to which the Pledgor is a party or by which any of its properties
or
assets may be bound or (y) any statute, rule, regulation, law or ordinance,
or
any judgment, decree or order or any organizational documents applicable to
the
Pledgor, (ii) does not violate any restriction on such transfer or encumbrance
of the Pledged Collateral, and (iii) complies with all corporate organizational
documents of Pledgor; and
8.13 The
Powers, are and the Additional Powers will be, effective endorsements duly
executed by an appropriate person and give the Collateral Agent the authority
they purport to confer.
8.14 The
chief
executive office of the Pledgor is located at Akara Building, 00 Xx Xxxxxx
Xxxxxx, Xxxxxxxx Cay I, Road Town, Tortola, British Virgin Islands.
Section
9. Voting
Rights.
During
the term of this Agreement, and except as provided in this Section
9,
the
Pledgor shall have the right to vote the Pledged Stock held by it on all
corporate questions in a manner not inconsistent with the terms of this
Agreement, the Note Purchase Agreement, the Note and the other Transaction
Documents;
provided, however, that
no
vote shall be cast, and no consent shall be given or action taken, which would
have the effect of impairing the position or interest of the Secured Party
in
respect of the Pledged Collateral or which would authorize, effect or consent
to: (i) the dissolution or liquidation, in whole or in part, of the Pledgor;
or
(ii) the alteration of the voting rights with respect to the equity interests
of
the Pledgor. After the occurrence and during the continuation of an Event of
Default, the Secured Party may, at its option, exercise all voting rights
pertaining to the Pledged Collateral, including the right to take action by
shareholder consent.
6
Section
10. Dividends
and Other Distributions.
10.1 So
long
as no Event of Default shall have occurred and be continuing, the Pledgor shall
be entitled to receive and retain any and all dividends and distributions paid
in respect of the Pledged Collateral notwithstanding such dividends and
distributions being subject to the pledge and assignment thereof pursuant to
Section
2;
provided, however,
after
the occurrence and during the continuation of an Event of Default, that any
and
all cash
paid, payable or otherwise distributed with respect to principal of, or in
redemption of, or in exchange for, any of the Pledged Collateral shall be
Pledged Collateral, as the case may be, and shall be forthwith delivered to
the
Collateral Agent to hold, for the benefit of the Secured Party, as Pledged
Collateral and shall, if received by the Pledgor, be received in trust for
the
Collateral Agent for the benefit of the Secured Party.
10.2 After
the
occurrence and during the continuation of an Event of Default:
10.2.1 All
rights of the Pledgor to receive the dividends and other distributions which
it
would otherwise be authorized to receive and retain pursuant to Section
10.1
hereof
shall cease, and all such rights shall thereupon become vested in the Collateral
Agent, for the benefit of the Secured Party, which shall thereupon have the
sole
right to receive and hold as Pledged Collateral such dividends and other
distributions, and any such dividend or other distribution paid in
respect of the Pledged Collateral shall be paid on a bank account opened in
the
name of the Secured Party;
10.2.2 All
dividends and other distributions which are received by the Pledgor contrary
to
the provisions of Section 10.2.1
hereof
shall be received in trust for the Collateral Agent, for the benefit of the
Secured Party; and
10.2.3 The
Pledgor shall, at the Pledgor’s expense, do or cause to be done all such other
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.
The
Pledgor and the Secured Party will bear equally all expenses incurred by the
Collateral Agent, including, without limitation, reasonable attorneys’ and
accountants’ fees and expenses in connection with the foregoing. Upon or at any
time after the occurrence and during the continuation of an Event of Default,
if
the Secured Party determines that, prior to any public offering of any
securities constituting part of the Pledged Collateral, such securities should
be registered under the Securities Act and/or registered or qualified under
any
other federal or state law and such registration and/or qualification is not
practicable, then the Pledgor agrees that it will be commercially reasonable
if
a private sale, upon at least ten (10) Business Days’ notice to the Pledgor, is
arranged so as to avoid a public offering, even though the sales price
established and/or obtained at such private sale may be substantially less
than
prices which could have been obtained for such security on any market or
exchange or in any other public sale, provided that the private sale is
conducted in accordance with applicable law, including the UCC.
7
Section
11. Transfers
and other Liens.
The
Pledgor agrees that it will not (i) sell, transfer or otherwise dispose of,
or
grant any option with respect to, (a) any of the Pledged Collateral without
the
prior written consent of the Secured Party, or (b) any other Owned Equity
Interests without five (5) Business Days advance notice to the Secured Party
and
the Collateral Agent, or (ii) create or permit to exist any Lien upon or with
respect to any of the Pledged Collateral (except for the security interest
created by this Agreement or with respect to the Permitted Liens).
Section
12. Defense
of Title.
The
Pledgor will defend the title to the Pledged Collateral and the Liens of the
Secured Party in the Pledged Collateral against the claim of any Person and
will
maintain and preserve the Liens created under this Agreement.
Section
13. Additional
Pledged Stock; Additional Equity Interests; Adjustment to the Pledged
Collateral.
13.1 The
parties shall calculate the Collateral Value Amount on October 31st and April
30th of each year during the term of the Note (each an “Evaluation
Date”).
In
the event that on any such Evaluation Date, the Collateral Value Amount is
less
than U.S.$175,781,250, the Pledgor shall as soon as possible (and in any event
no later than seven (7) Business Days of such Evaluation Date) pledge, and
perfect security interest in, in favor of the Secured Party, such additional
shares of Owned Equity Interests equal to the quotient obtained by dividing
(i)
(A) U.S.$175,781,250 less (B) such Collateral Value Amount, by (ii) the
Applicable Price, rounded up to the nearest whole share (each such additional
Owned Equity Interest, “Additional
Pledged Stock”).
In
the event that on any such Evaluation Date, the Collateral Value Amount is
greater than U.S.$175,781,250 and provided that neither an Event of Default,
nor
any event which, with the giving of notice or the passage of time, or both,
would constitute an Event of Default, has occurred and is then continuing,
the
security interest on such shares of Pledged Stock, Additional Pledged Stock,
and
Additional Equity Interests equal to the quotient obtained by dividing (i)
such
Collateral Value Amount less U.S.$175,781,250, by (ii) the Applicable Price,
rounded down to the nearest whole share, shall terminate automatically and
immediately, and certificates representing such shares of Pledged Stock,
Additional Pledged Stock, and Additional Equity Interests, if requested by
the
Pledgor, shall be returned immediately to the Pledgor.
13.1.1 “Collateral
Value Amount”
means,
on any Evaluation Date, the sum of the amount obtained by multiplying (I)
the
lesser of (x) the
Weighted Average Price of the Common Stock for the sixty (60) Trading Days
ending on the latest Trading Day immediately preceding such Evaluation
Date and
(y)
the Closing Sale Price of the Common Stock on the latest Trading Day immediately
preceding such Evaluation Date
(the
“Applicable
Price”),
by
(II) the number of shares of Common Stock pledged and constituting Pledged
Collateral pursuant to this Agreement as of such Evaluation Date.
8
13.2 Any
time
the Pledgor obtains ownership of any additional capital stock of, and other
equity interests in, the Company which are issued in exchange for any of the
Pledged Collateral (the “Additional
Equity Interests”),
or
the Pledgor is required to pledge any Additional Pledged Stock, the Pledgor
shall deliver to the Secured Party and the Collateral Agent an amendment to
this
Agreement within four (4) Business Days, duly executed by the Pledgor and in
form and substance satisfactory to the Secured Party, in respect of such
Additional Equity Interests or Additional Pledged Stock, as applicable, pursuant
to which the Pledgor shall pledge to the Secured Party such Additional Equity
Interests or Additional Pledged Stock, as applicable. Pursuant to such
amendment, the Pledgor shall (i) deliver the certificates representing such
Additional Equity Interests or Additional Pledged Stock, in the manner described
in Section
4
hereof,
(ii) deliver to the Secured Party (or to the Collateral Agent at the
Secured Party’s direction) stock power(s) with respect to the Additional Equity
Interests or Additional Pledged Stock, as applicable, in the form of
Exhibit
B
attached
hereto duly executed in blank (“Additional
Power(s)”)
and
(iii) at the expense of the Secured Party, make the necessary Uniform Commercial
Code filings and register the charge created thereby in the register of
registered charges kept by the Registrar for the Secured Party, in each case
to
perfect and register, as applicable, the Secured Party’s security interest and
charges in such Additional Equity Interests or Additional Pledged Stock, as
applicable, in the manner described in Section
7
hereof.
The Pledgor and the Secured Party hereby authorize the Collateral Agent to
amend
Exhibit A-1 to reflect such Additional Pledged Stock and Additional Equity
Interests and agree that all Pledged Stock (including Additional Equity
Interests and Additional Pledged Stock) listed on any such amendment delivered
to the Collateral Agent shall for all purposes hereunder be considered Pledged
Collateral.
13.3 For
the
avoidance of doubt, any failure of the Pledgor to comply with this Section
13
shall
constitute an Event of Default, if such failure continues for a period of ten
(10) Business Days after the Issuer has received written notice from Holders
(as
defined in the Note) constituting at least the Required Holders (as defined
in
the Note) specifying such default and demanding such default be
remedied.
Section
14. Remedies.
14.1 The
Collateral Agent shall have, in addition to any other rights given under this
Agreement or by law, all of the rights and remedies with respect to the Pledged
Collateral of a secured party under the Uniform Commercial Code as in effect
in
the State of New York (the “UCC”).
After
the occurrence and during the continuation of an Event of Default, the
Collateral Agent shall have such powers of sale and other powers as may be
conferred by applicable law. With respect to the Pledged Collateral or any
part
thereof which shall then be in or shall thereafter come into the possession
or
custody of the Collateral Agent or which the Collateral Agent shall otherwise
have the ability to transfer under applicable law, the Collateral Agent may,
after the occurrence and during the continuation of an Event of Default, sell
or
cause the same to be sold at any exchange, broker’s board or at public or
private sale, in one or more sales or lots, or in one lot as an entirety, at
such price as the Collateral Agent or the Secured Party may deem best, for
cash
or on credit or for future delivery, without assumption of any credit risk,
and
the purchaser of any or all of the Pledged Collateral so sold shall thereafter
own the same, absolutely free from any claim, encumbrance or right of any kind
whatsoever. The Collateral Agent or Secured Party may, in its own name, or
in
the name of a designee or nominee, buy the Pledged Collateral at any public
sale
and, if permitted by applicable law, including the UCC, buy the Pledged
Collateral at any private sale. The Pledgor agrees to pay to the Collateral
Agent all reasonable expenses (including, without limitation, court costs and
reasonable attorneys’ and paralegals’ fees and expenses) of, or incident to, the
enforcement of any of the provisions hereof. The Pledgor shall remain liable
for
any deficiency following the sale of the Pledged Collateral.
9
14.2 Unless
any of the Pledged Collateral threatens to decline speedily in value or is
or
becomes of a type sold on a recognized market, in which case the Collateral
Agent shall deliver notice to the Pledgor at least two (2) Business Days prior
to the time of the sale or disposition of the Pledged Collateral, the Collateral
Agent shall 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 Pledged Collateral conducted
in conformity with reasonable commercial practices of banks, commercial finance
companies, insurance companies or other financial institutions disposing of
property similar to the Pledged Collateral shall be deemed to be commercially
reasonable. Notwithstanding any provision to the contrary contained herein,
to
the extent that any notice of sale or disposition shall be required by the
UCC,
the Pledgor agrees that any such requirements of reasonable notice shall be
met
if such notice is received by the Pledgor as provided in Section
30
below at
least ten (10) Business Days before the time of the public sale or disposition
or before the time after which a private sale of disposition may be consummated.
Any other requirement of notice, demand or advertisement for sale is waived,
to
the extent permitted by law.
14.3 Given
that federal and state securities laws may impose certain restrictions on the
method by which a sale of the Pledged Collateral may be effected after an Event
of Default, the Pledgor agrees that after the occurrence and during the
continuation of an Event of Default, the Collateral Agent may, from time to
time, attempt to sell all or any part of the Pledged Collateral by means of
a
private placement restricting the bidders and prospective purchasers to those
who are qualified and will represent and agree that they are purchasing for
their account, for investment only and not with a view to the distribution
or
resale thereof. In so doing, the Collateral Agent may solicit offers to buy
the
Pledged Collateral, or any part of it, from a limited number of investors deemed
by the Collateral Agent, in its reasonable judgment, to be financially
responsible parties who might be interested in purchasing the Pledged
Collateral. The Pledgor agrees that private placement or sales so made may
be at
prices and other terms less favorable to the seller than if any such Pledged
Collateral were sold at public sales, and that the Secured Party has no
obligation to delay sale of any such Pledged Collateral for the period of time
necessary to permit the issuer of such Pledged Collateral, even if such issuer
would agree, to register such Pledged Collateral for public sale under such
applicable securities laws. If the Collateral Agent solicits such offers from
not less than six (6) such investors, then the acceptance by the Collateral
Agent of the highest offer obtained therefrom shall be deemed to be a
commercially reasonable method of disposing of such Pledged Collateral;
provided,
however,
that
this Section
14
does not
impose a requirement that the Collateral Agent solicit offers from six or more
investors in order for the sale to be commercially reasonable.
10
14.4 The
Pledgor agrees to the maximum extent permitted by applicable law that following
the occurrence and during the continuance of an Event of Default, it will not
at
any time plead, claim or take the benefit of any appraisal, valuation, stay,
extension, moratorium or redemption law now or hereafter in force in order
to
prevent or delay the enforcement of this Agreement, or the absolute sale of
the
whole or any part of the Pledged Collateral or the possession thereof by any
purchaser at any sale hereunder, and the Pledgor waives the benefit of all
such
laws to the extent it lawfully may do so. The Pledgor agrees that it will not
interfere with any right, power and remedy of Collateral Agent provided for
in
this Agreement or now or hereafter existing at law or in equity or by statute
or
otherwise, or the exercise or beginning of the exercise by Collateral Agent
of
any one or more of such rights, powers or remedies. No failure or delay on
the
part of Collateral Agent to exercise any such right, power or remedy and no
notice or demand which may be given to or made upon the Pledgor by the
Collateral Agent with respect to any such remedies shall operate as a waiver
thereof, or limit or impair the Collateral Agent’s right to take any action or
to exercise any power or remedy hereunder, without notice or demand, or
prejudice its rights as against the Pledgor in any respect. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall the
Collateral Agent (or if applicable, the Secured Party) conduct a sale of the
Pledged Collateral or effect a transfer of the Pledged Collateral to the Secured
Party
or
exercise any other rights with respect to the Pledged Collateral after the
occurrence and during the continuation of an Event of Default pursuant
to Sections 4, 6, 9, 10, 14, or 16 hereof, unless the Secured Party has
delivered to the Pledgor a Redemption Notice
or an
Exchange Notice,
and the
Pledgor has failed to redeem or
exchange the
Note
in accordance with Section 8(a) or
Section 2(c), respectively, of the Note.
14.5 The
proceeds of any sale of, or other realization upon, or other receipt from, any
of the Pledged Collateral (other than pursuant to the exercise of the Secured
Party’s exchange right pursuant to Section 2 of the Note), shall be delivered to
the Collateral Agent and applied by the Collateral Agent, in the following
order
of priorities:
first,
to the
payment to the Collateral Agent of the expenses of such sale or other
realization, including reasonable compensation to the Collateral Agent and
their
agents and legal counsel, and all expenses, liabilities and advances incurred
or
made by the Collateral Agent, and its agents and legal counsel, in connection
therewith, including brokerage fees in connection with the sale by the
Collateral Agent of any Pledged Collateral;
second,
to the
payment to the Secured Party of the aggregate amount owing by the Pledgor in
respect of the Note, the Note Purchase Agreement, the other Transaction
Documents and all other Secured Obligations; and
finally,
if all
of the obligations of the Pledgor hereunder and under the other Transaction
Documents have been fully discharged or sufficient funds have been set aside
by
the Collateral Agent at the request of the Pledgor for the discharge thereof,
any remaining proceeds shall be released to the Pledgor.
14.6 The
Pledgor hereby agrees that any exchange of amounts payable to the Secured Party
under the Note into all or part of the Pledged Collateral transacted pursuant
to, and in accordance with, the provisions of the exchange right pursuant to
Section 2 of the Note and the other Transaction Documents, shall be conclusively
deemed to be private disposition of such Pledged Collateral consummated in
a
commercially reasonable manner.
14.7 The
Pledgor further agrees that a breach of any of the covenants contained in this
Section
14
will
cause irreparable injury to the Collateral Agent, that the Collateral Agent
shall have no adequate remedy at law in respect of such breach and, as a
consequence, agrees that each and every covenant contained in this Section
14
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.
11
Section
15. Security
Interest Absolute.
All
rights of the Collateral Agent and security interests hereunder, and all
obligations of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
15.1 Any
lack
of validity or enforceability of the Note Purchase Agreement or any other
agreement or instrument relating thereto;
15.2 Any
exchange, release or non-perfection of any other collateral for all or any
part
of the Secured Obligations; or
15.3 the
insolvency of the Pledgor.
Section
16. Collateral
Agent Appointed Attorney-in-Fact.
The
Pledgor hereby appoints the Collateral Agent its attorney-in-fact, with full
authority, in the name of the Pledgor or otherwise, after the occurrence and
during the continuation of an Event of Default, from time to time in the
Collateral Agent’s sole discretion, with ten (10) Business Days advance written
notice to the Pledgor and the Secured Party, to take any action and to execute
any instrument which the Collateral Agent or the Secured Party may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to receive, endorse and collect all instruments made payable
to the Pledgor representing any dividend or other distribution in respect of
the
Pledged Collateral or any part thereof and to give full discharge for the same
and to arrange for the transfer of all or any part of the Pledged Collateral
on
the books of the Company to the name of the Collateral Agent or the Collateral
Agent’s nominee.
The
Pledgor (i) acknowledges that Warburg Pincus Private Equity IX, L.P. is both
the
Secured Party and the Collateral Agent hereunder and (ii) waives any conflict
of interest,
actual
or perceived, presented by Warburg Pincus Private Equity IX, L.P. as both the
Secured Party and the Collateral Agent hereunder; provided
that
such
waiver shall not limit any of the obligations of the Secured Party, in its
capacity as such, or the Collateral Agent, in its capacity as such, under this
Agreement.
Section
17. Waivers.
The
Pledgor waives to the fullest extent permitted by applicable laws presentment
and demand for payment of any of the Secured Obligations, protest and notice
of
dishonor or Event of Default with respect to any of the Secured Obligations
and
all other notices to which the Pledgor might otherwise be entitled except as
expressly provided otherwise in the Transaction Documents.
Section
18. Term.
This
Agreement shall remain in full force and effect until the earlier to occur
of
(i) the cancellation of the Note, whether by payment of cash or upon exchange
for shares of Common Stock pursuant to Section 20 of the Note, and (ii) the
sale
of all the Pledged Collateral in accordance with the terms hereof, provided
that
such
Pledged Collateral constitutes all the collateral required to be pledged under
the terms of this Agreement. Upon the termination of this Agreement as provided
above (other than as a result of the sale of the Pledged Collateral), the
security interest created hereunder shall terminate automatically and
immediately, and all certificates representing Pledged Collateral and the Powers
and the Additional Powers, if any, shall be returned immediately to the Pledgor,
and in any event within three (3) Business Days after the Collateral Agent
receives written notice of termination of this Agreement.
12
Section
19. Reinstatement.
This
Agreement shall remain in full force and effect and continue to be effective
should any petition be filed by or against the Pledgor or the Company for
liquidation or reorganization, should the Pledgor or the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Pledgor’s or the Company’s assets, and shall continue to be effective or be
reinstated, as the case may be.
Section
20. Definitions.
The
singular shall include the plural and vice versa and any gender shall include
any other gender as the context may require.
Section
21. Binding
Effect; Successors and Assigns.
This
Agreement shall be binding upon the Pledgor and its successors and assigns,
and
shall inure to the benefit of the Collateral Agent and the Secured Party and
their respective successors and assigns. Nothing set forth herein or in any
other Transaction Document is intended or shall be construed to give any other
Person any right, remedy or claim under, to or in respect of this Agreement,
the
Note Purchase Agreement, the Note or any collateral. The Pledgor’s successors
shall include, without limitation, a receiver, trustee or debtor-in-possession
of or for the Pledgor.
Section
22. Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. The Pledgor hereby appoints CT
Corporation System, with offices located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000, as its agent for service of process in New York. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any manner
permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE,
AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
Section
23. Advice
of Counsel.
Each
party hereto represents and warrants to each other party hereto that it has
had
the opportunity to discuss this Agreement and, specifically, the provisions
of
Section
22
hereof,
with its counsel.
13
Section
24. Severability.
If any
provision of this Agreement is held to be prohibited or unenforceable in any
jurisdiction the substantive laws of which are held to be applicable hereto,
such prohibition or unenforceability shall not affect the validity or
enforceability of the remaining provisions hereof to the extent permitted by
applicable law, and shall not invalidate or render unenforceable such provision
in any other jurisdiction to the extent permitted by applicable
law.
Section
25. Further
Assurances.
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, and take all further action, that may be required by applicable
law or may be necessary or desirable, or that the Secured Party or the
Collateral Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Collateral Agent to exercise and enforce its rights and remedies hereunder
with
respect to any of the Pledged Collateral, including, without limitation, the
filing of financing statements or the execution of control agreements with
depository banks and securities intermediaries under Article 9 of the Uniform
Commercial Code of New York. The Pledgor hereby further agrees that it shall
not
make any change to its name, jurisdiction, location of chief executive office
or
the form of its organization without prior written notice to the Secured Party
and the Collateral Agent. The Pledgor authorizes the Secured Party to file
any
financing statements and amendments thereto relating to the Pledged Collateral
which the Secured Party deems appropriate, in form and substance required by
the
Secured Party, which describe the Pledged Collateral and include therein all
other information which is required by Article 9 of the UCC or other applicable
law with respect to the preparation or filing of a financing statement or
amendment. The Secured Party agrees that it shall promptly execute and deliver
all further instruments and documents, and take all further action, that may
be
required by applicable law or may be necessary or desirable, or that the Pledgor
or the Collateral Agent may reasonably request, in order to effect the
termination of any security interest granted hereby in accordance with the
terms
of this Agreement, including, without limitation, filing or authorizing the
Pledgor to file termination of any charges with respect to the Pledged
Collateral, including without limitation the financing statements under Article
9 of the Uniform Commercial Code of New York and the charges entered in the
register of charges kept by the Registrar. The Collateral Agent shall take
all
action reasonably requested by the Pledgor to effect the termination of the
security interest created hereunder in accordance herewith, including without
limitation, filing or authorizing the Pledgor to file the a termination of
any
charges, including without limitation the financing statements under Article
9
of the Uniform Commercial Code of New York and the charges entered in the
register of charges kept by the Registrar.
Section
26. The
Collateral Agent Duty of Care.
26.1 The
Collateral Agent shall not be liable for any acts, omissions, errors of judgment
or mistakes of fact or law including, without limitation, acts, omissions,
errors or mistakes with respect to the Pledged Collateral, except for those
arising out of or in connection with the Collateral Agent’s (i) gross negligence
or willful misconduct, or (ii) failure to use reasonable care with respect
to
the safe custody of the Pledged Collateral in the Collateral Agent’s possession.
Without limiting the generality of the foregoing, the Collateral Agent shall
be
under no obligation to take any steps necessary to preserve rights in the
Pledged Collateral against any other parties but may do so at its option. All
expenses incurred in connection therewith shall be for the sole account of
the
Pledgor, and shall constitute part of the Secured Obligations secured
hereby.
14
26.2 No
provision of this Agreement shall require the Collateral Agent to expend or
risk
its own funds or otherwise incur any financial liability in the performance
of
any of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk or liability is not reasonably assured
to it. The Collateral Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement, the Note Purchase Agreement or
the
Note. The Collateral Agent shall not be liable for any delay or failure to
act
as may be required hereunder when such delay or failure is due to any act of
God, interruption or other circumstances beyond its control; provided
that
it
exercises such diligence as the circumstances may reasonably require. The
Collateral Agent shall be entitled to rely on any communication, instrument,
paper or other document reasonably believed by it to be genuine and correct
and
to have been signed or sent by the proper person.
26.3 The
Collateral Agent shall not be deemed to have notice of any Event of Default
unless an officer of the Collateral Agent has actual knowledge thereof or unless
written notice of any such Event of Default is received by the Collateral Agent
at the office of the Collateral Agent specified in this Agreement.
26.4 The
Collateral Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Pledged Collateral shall be to deal with it in
the
same manner as the Collateral Agent deals with similar property for its own
account.
26.5 In
no
event shall the Collateral Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Collateral Agent has been advised of the
likelihood of such loss or damage and regardless of the form of
action.
26.6 The
rights of the Collateral Agent under this Agreement (including without
limitation, Sections 16, 26 and 27 hereof) shall solely be in its capacity
as
the Collateral Agent, and no implication is or shall be made that any such
rights shall extend to the Collateral Agent in any other capacity it may hold
hereunder or under the other Transaction Documents.
Section
27. Additional
Provisions Relating to the Collateral Agent.
27.1 Any
corporation, bank, trust company or association into which the Collateral Agent
may be merged or converted or with which it may be consolidated, or any
corporation, bank, trust company or association resulting from any merger,
conversion or consolidation to which the Collateral Agent shall be a party,
or
any corporation, bank, trust company or association succeeding to all or
substantially all the corporate trust business of the Collateral Agent, shall
be
the successor of the Collateral Agent hereunder, without the execution or filing
of any paper or any further act on the part of any of the parties
hereto.
15
27.2 At
any
time or times, the Collateral Agent shall have the power to appoint any Person
or Persons either to act as co-collateral agent, or co-collateral agents,
jointly with the Collateral Agent of all or any part of the Pledged Collateral
or to act as separate collateral agent or separate collateral agents of all
or
any part of the Pledged Collateral and to vest in such Person or Persons, in
such capacity, such title to the Pledged Collateral or any part thereof, and
such rights, powers, duties or obligations as the Collateral Agent may consider
necessary or desirable, subject to the other provisions of this Section
27.
Warburg
Pincus Private Equity IX, L.P. is hereby appointed as Collateral Agent for
the
purposes of holding the Pledged Collateral.
27.3 Unless
otherwise provided in the instrument appointing such co-collateral agent or
separate collateral agent, every co-collateral agent or separate collateral
agent shall, to the extent permitted by law, be appointed subject to the
following terms:
27.3.1 All
rights, power, duties and obligations under this Agreement conferred upon the
Collateral Agent in respect of the custody, control or management of the
collateral, shall be exercised solely by the Collateral Agent;
27.3.2 All
rights, powers, duties and obligations conferred or imposed upon the collateral
agents shall be conferred or imposed upon and exercised or performed by the
Collateral Agent, or by the Collateral Agent and such co-collateral agent or
co-collateral agents, or separate collateral agent or separate collateral agents
jointly, except to the extent that, under the law of any jurisdiction in which
any particular act or acts are to be performed, the Collateral Agent shall
be
incompetent or unqualified to perform such act or acts, in which event such
act
or acts shall be performed by such co-collateral agent or co-collateral agents
or separate collateral agents or separate collateral agents;
27.3.3 Any
request in writing by the Collateral Agent to any co-collateral agent or
separate collateral agent to take or to refrain from taking any action hereunder
shall be sufficient warrant for the taking, or the refraining from taking,
of
such action by such co- collateral agent or separate collateral
agent;
27.3.4 Any
co-collateral agent or separate collateral agent to the extent permitted by
law
may delegate to the Collateral Agent the exercise of any right, power, duty
or
obligation, discretionary or otherwise;
27.3.5 The
Collateral Agent at any time, by an instrument in writing, may accept the
resignation of, or remove, any co-collateral agent or separate collateral agent
appointed under this Section
27.
As
successor to any co-collateral agent or separate collateral agent so resigned
or
removed may be appointed in the manner provided in this Section
27;
27.3.6 No
collateral agent hereunder shall be personally liable by reason of any act
or
omission of any other collateral agent hereunder;
27.3.7 Any
demand, request, direction, appointment, removal, notice, consent, waiver or
other action in writing delivered to the Collateral Agent shall be deemed to
have been delivered to each such co-collateral agent or separate collateral
agent; and
27.3.8 Any
Collateral received by any such co-collateral agent or separate collateral
agent
hereunder shall forthwith, so far as may be permitted by law, be turned over
to
the Collateral Agent to be held pursuant to the terms hereof.
16
27.4 Upon
the
acceptance in writing of such appointment by any such collateral agent or
separate collateral agent, it or he shall be vested with the estate, right,
title and interest in the Pledged Collateral, or any portion thereof, and with
such rights, powers, duties, trusts or obligations, jointly or separately with
the Collateral Agent, all as shall be specified in the instrument of
appointment, subject to all the terms hereof.
27.5 In
case
any co-collateral agent or separate collateral agent shall become incapable
of
acting, resign or be removed, the right, title and interest in the Pledged
Collateral and all rights, powers, duties and obligations of said co-collateral
agent or separate collateral agent shall, so far as permitted by law, vest
in
and be exercised by the Collateral Agent unless and until a successor
co-collateral agent or separate collateral agent shall be appointed pursuant
to
this Section
27.
Section
28. Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one (1) Business Day after deposit with an overnight courier service,
in each case properly addressed to the party to receive the same. The addresses
and facsimile numbers for such communications shall be:
If
to the
Pledgor:
Beams
Power Investment Limited
c/o
Xxxxxxx Xxxx
Shenglong
Garden
Xx.
000
Xxxxxxxxxx
Xxxxxxxx
Xxxxxxxx
Xxxxxxx,
000000, PRC
Facsimile:
x00-00-0000-0000
E-mail:
xxxxxxxxxx@xxxxx.xxx
With
a
copy which shall not constitute notice to:
O’Melveny
& Xxxxx LLP
37th
Floor
Yintai
Center, Office Tower, Xx.0 Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx
000000, Xxxxx
Attention:
Xxxxx Xxxxxxx
Fax:
x00-00-0000-0000
17
If
to the
Secured Party or the Collateral Agent:
Warburg
Pincus Private Equity IX, L.P.
c/o
Warburg Pincus LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
With
a
copy which shall not constitute notice to:
Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP
19th
Floor
Yintai
Center, Office Xxxxx
0
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxx
000000, Xxxxx
Attention:
Xxxx Xxxxxxx
Fax:
x00-00-0000-0000
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender’s facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
Any
document shall be deemed to have been duly served if marked for the attention
of
the agent for service of process at its address (as set forth in Section
22
hereof)
or such other address in the United States as may be notified to the party
wishing to serve the document and delivered in accordance with the notice
provisions set forth in Section
28.
If
the
Pledgor’s agent for service of process at any time ceases for any reason to act
as such, the Pledgor shall appoint a replacement agent having an address for
service in the United States and shall notify the Collateral Agent and the
Secured Party in writing of the name and address of the replacement agent.
Failing such appointment and notification, the Secured Party shall be entitled
by notice to the Pledgor, with a copy of the Collateral Agent, to appoint a
replacement agent to act on the Pledgor’s behalf. The provisions of this
Section
28
applying
to service on an agent for service of process apply equally to service on a
replacement agent.
18
Section
29. Indemnity
and Expenses.
The
Pledgor agrees, upon demand, to defend, indemnify and hold harmless the Secured
Party and the Collateral Agent against any and all actions, causes of action,
suits, costs, losses, claims, damages, penalties, fines, liabilities or
expenses, including incidental and out-of-pocket expenses and reasonable
attorneys fees (collectively, the “Losses”)
incurred by them, individually or together, in connection with the failure
by
the Pledgor to perform or observe any of the provisions hereof. The Pledgor
and
the Secured Party shall be equally responsible the amount of any and all
reasonable expenses of the Collateral Agent, including the reasonable fees
and
expenses of its counsel and of any experts and agents, which the Collateral
Agent may incur in connection with (i) the administration of this Agreement,
(ii) the custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, any of the Pledged Collateral, and (iii) the
exercise of any of the rights of the Collateral Agent hereunder. The Secured
Party agrees, upon demand, to defend, indemnify and hold harmless the Pledgor
and the Collateral Agent against any Losses incurred by them, individually
or
together, in connection with the failure by the Secured Party to perform or
observe any of the provisions hereof.
Section
30. Amendments,
Waivers and Consents.
None of
the terms or provisions of this Agreement may be waived, altered, modified
or
amended, and no consent to any departure by the Pledgor herefrom shall be
effective, except by or pursuant to an instrument in writing which (i) is duly
executed by the Pledgor, the Secured Party and the Collateral Agent and (ii)
complies with the requirements of the Note Purchase Agreement and the Note.
Any
such waiver shall be valid only to the extent set forth therein. A waiver by
the
Collateral Agent or the Secured Party of any right or remedy under this
Agreement on any one occasion shall not be construed as a waiver of any right
or
remedy which the Collateral Agent or the Secured Party, respectively, would
otherwise have on any future occasion. No failure to exercise or delay in
exercising any right, power or privilege under this Agreement on the part of
the
Collateral Agent or the Secured Party shall operate as a waiver thereof; and
no
single or partial exercise of any right, power or privilege under this Agreement
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.
Section
31. Successors
and Assigns.
Subject
to compliance with Section 12 of the Note and Section 9(g) of the Note Purchase
Agreement with respect to the transfer of the Note, the Secured Party may assign
or transfer to any transferee of the Note or any portion thereof, any or all
of
the rights of the Secured Party in the Pledged Collateral relating to such
assigned or transferred portion. Such assignee or transferee shall be vested
with all the powers and rights of the Secured Party hereunder with respect
to
the Pledged Collateral relating to such assigned or transferred portion, but
the
Secured Party shall retain all rights and powers hereby given with respect
to
the Pledged Collateral not so assigned or transferred. Any references to
"Secured Party" herein shall be deemed to include the assignees and transferees
thereof. The Pledgor shall not assign or delegate any of its rights or duties
hereunder or any of its interest herein without the prior written consent of
each Secured Party, and any purported assignment or delegation in contravention
of this Section shall be void.
Section
32. Section
Headings.
The
section headings herein are for convenience of reference only, and shall not
affect in any way the interpretation of any of the provisions
hereof.
Section
33. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall together constitute one and the same
agreement.
Section
34. Merger.
This
Agreement, together with the other Transaction Documents, embody the entire
agreement and understanding, between the Pledgor, the Collateral Agent and
the
Secured Party and supersedes all prior agreements and understandings, written
and oral, relating to the subject matter hereof.
19
[REMAINDER
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20
EXECUTION
VERSION
IN
WITNESS WHEREOF,
the
Pledgor, the Collateral Agent and the Secured Party have executed this Agreement
as of the date set forth above.
|
PLEDGOR:
|
|
|
BEAMS
POWER INVESTMENT LIMITED
|
|
|
By:
|
/s/
Xxxxxxx Xxxx
|
|
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Name:
Xxxxxxx
Xxxx
|
|
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Title:
Sole
Director
|
| SECURED PARTY: | |
| WARBURG PINCUS PRIVATE EQUITY IX, L.P. | |
|
By:
Warburg Pincus IX LLC, its general partner
By:
Warburg Pincus Partners, LLC, its sole member
By:
Warburg Pincus & Co., its managing member
|
|
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxx
X. Xxxxxxx
|
|
|
Title:
Partner
|
|
COLLATERAL
AGENT:
WARBURG
PINCUS PRIVATE EQUITY IX, L.P.
By:
Warburg Pincus IX LLC, its general partner
By:
Warburg Pincus Partners, LLC, its sole member
By:
Warburg Pincus & Co., its managing member
|
|
|
By:
|
/s/
Xxxxx X. Xxxxxxx
|
|
|
Name:
Xxxxx X. Xxxxxxx
|
|
|
Title:
Partner
|
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