Exhibit 1
EXECUTION COUNTERPART
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PLEDGE OF SHARES AGREEMENT
BY AND BETWEEN
i-STT INVESTMENTS PTE. LTD.
AND
STANDARD CHARTERED BANK, AS SECURITY AGENT
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MILBANK, TWEED, XXXXXX & XxXXXX LLP
TABLE OF CONTENTS
Page
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Section 1. Definitions ....................................................... 1
Section 2. Representations and Warranties .................................... 3
Section 3. Collateral ........................................................ 6
Section 4. Further Assurances; Remedies ...................................... 7
4.01 Delivery and Other Perfection ............................... 7
4.02 Other Financing Statements and Security ..................... 9
4.03 Preservation of Rights ...................................... 9
4.04 Certificated Securities ..................................... 9
4.05 Payment Event ............................................... 9
4.06 Deficiency .................................................. 11
4.07 Removals, Etc ............................................... 11
4.08 Private Sale ................................................ 11
4.09 Application of Proceeds ..................................... 11
4.10 Attorney-in-Fact ............................................ 12
4.11 Termination; Release ........................................ 13
Section 5. Miscellaneous ..................................................... 13
5.01 No Waiver ................................................... 13
5.02 Notices ..................................................... 13
5.03 Expenses; Indemnification ................................... 13
5.04 Amendments, Etc ............................................. 14
5.05 Successors and Assigns ...................................... 15
5.06 Captions .................................................... 15
5.07 Counterparts ................................................ 15
5.08 Governing Law; Jurisdiction; Consent to Service of Process .. 15
5.09 No Immunity ................................................. 16
5.10 Agents and Attorneys-in-Fact; Affiliates .................... 17
5.11 Severability ................................................ 17
5.12 Representation and Warranty of the Security Agent ........... 17
5.13 Lock-Up ..................................................... 17
PLEDGE OF SHARES AGREEMENT
PLEDGE OF SHARES AGREEMENT dated as of December 11, 2003, by and
between i-STT Investments Pte. Ltd., a corporation duly organized and validly
existing under the laws of the Republic of Singapore (the "Pledgor"), and
Standard Chartered Bank, as security agent (in such capacity, together with its
successors in such capacity, the "Security Agent").
WHEREAS, STT Communications Ltd (the "Borrower"), the Lenders parties
thereto (the "Lenders") and Sumitomo Mitsui Banking Corporation, as Facility
Agent (the "Facility Agent") and others, have entered into a Facility Agreement
dated as of December 11, 2003 (as amended from time to time, the "Facility
Agreement"), whereby the Lenders have agreed to make available to the Borrower a
credit facility of US$480,000,000 upon the terms and conditions therein
contained;
WHEREAS, the Borrower, as sole shareholder of the Pledgor, has agreed
pursuant to the Facility Agreement that the Pledgor will pledge certain of its
shares, warrants and notes of Equinix, Inc., a corporation organized under the
laws of Delaware (together with its successors and assigns, the "Issuer"), as
security for the amounts owing by the Borrower under the Facility Agreement;
WHEREAS, in furtherance of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor has agreed to pledge and grant a security interest in
the Collateral (as defined in Section 3(a) hereof) as security for the Secured
Obligations (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions. (a) As used in this Agreement, the following
terms have the meanings specified below:
"Collateral" shall have the meaning given to such term in Section 3(a)
hereof.
"Governmental Authority" shall mean any nation or government,
international or multi-national authority or government, or any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, in each case, that exercises jurisdiction over
the Pledgor or the Collateral.
"Finance Document" shall have the meaning given to such term in Clause
1.1 of the Facility Agreement.
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"Loan" shall have the meaning given to such term in Clause 1.1 of the
Facility Agreement.
"Payment Event" shall mean an Event of Default as described in Clause
21.1 of the Facility Agreement or any acceleration of maturity of the Loans
by the Facility Agent pursuant to Clause 21.16 of the Facility Agreement.
"Person" shall mean any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Pledged Securities" shall have the meaning given to such term in
Section 3(a) hereof.
"Property" of any Person shall mean any property, assets or revenues
of such Person or any interest therein.
"Related Parties" shall mean, with respect to any specified Person,
such Person's affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's affiliates.
"Secured Obligations" shall mean, collectively, (a) the principal of
and interest on the Loans and all other amounts whatsoever now or hereafter
from time to time owing by the Borrower to the Secured Parties under the
Facility Agreement or under the other Finance Documents and (b) all present
and future obligations of the Pledgor to the Secured Parties, or any of
them, hereunder.
"Secured Parties" shall mean, collectively, the Security Agent, the
Facility Agent and each of the Lenders.
"Securities Act" means the US Securities Act of 1933, as amended.
"Solvent" shall mean, with respect to any Person at any time, that (a)
the fair value of the Property of such Person is greater than the total
amount of liabilities (including without limitation contingent liabilities)
of such Person, (b) the present fair saleable value of the Property of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as
such debts and liabilities mature
PLEDGE OF SHARES AGREEMENT
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and (d) such Person is not engaged in a business and is not about to engage
in a business for which such Person's Property would constitute an
unreasonably small capital.
"Stock Collateral" shall have the meaning given to such term in
Section 3(a)(II) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the State of New York.
"US" means the United States of America.
(b) Terms defined in the Facility Agreement, and not defined herein,
shall have the respective meanings given to such terms in the Facility
Agreement. The term "Proceeds" shall have the meaning ascribed thereto in
Article 9 of the UCC and the term "Security Certificates" shall have the meaning
ascribed thereto in Article 8 of the UCC.
(c) The foregoing definitions shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(i) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or
other document as from time to time amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, restatements,
supplements or modifications set forth herein or therein), (ii) references to
any law, constitution, statute, treaty, regulation, rule or ordinance (each a
"law") refer to that law as amended from time to time and include any successor
law, (iii) any reference herein to any person shall be construed to include such
person's successors and permitted assigns and (iv) the words "herein", "hereof",
"hereto" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof.
Section 2. Representations and Warranties. The Pledgor represents and
warrants to the Secured Parties that as of the date hereof:
(a) Power and Authority. It (i) is a corporation duly organized and
validly existing under the laws of the Republic of Singapore, (ii) has all
requisite corporate or other power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted, (iii) is qualified to
do business and is in good standing in all jurisdictions in which the
PLEDGE OF SHARES AGREEMENT
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nature of the business conducted by it makes such qualification necessary,
except, in each case, as could not reasonably cause a Material Adverse Effect,
(iv) has full power, authority and legal right to make and perform this
Agreement and to grant the security interest created hereunder, (v) is in
material compliance with all applicable laws and regulations, and (vi) has good
title to all the Collateral, free and clear of any Security except for the
pledge and security interest created hereunder.
(b) Due Authorization, Etc. The making and performance by it of this
Agreement and all other documents and instruments to be executed and delivered
hereunder by the Pledgor have been duly authorized by all necessary corporate
action, and do not and will not contravene (i) the constitutive documents of the
Pledgor, (ii) any applicable law, decree, regulation, judgment, award,
injunction or similar legal restriction, as now in effect and applicable to it,
or (iii) any agreement or instrument or material contractual restriction binding
on or affecting the Pledgor or any of the Collateral, and do not and will not
result in the imposition of any Security on the Collateral, except the Security
created and arising under this Agreement.
(c) Governmental and Other Approvals. Except for (i) actions that have
been taken and (ii) consents which have been received, no license, consent,
authorization or approval or other action by, or notice to or filing or
registration with, any Governmental Authority (including without limitation any
foreign exchange approval), and no other third-party consent or approval, is
necessary for the due execution, delivery and performance by the Pledgor of this
Agreement or for the legality, validity or enforceability thereof against the
Pledgor, other than, (x) with respect to foreclosure of the security interest
in, or subsequent resale of, the Collateral, the registration and reporting
requirements of the Securities Act and the US Securities and Exchange Act of
1934, as amended and any similar US state blue sky laws (including compliance
with any restrictive legends relating thereto set forth on the Collateral) and
(y) with respect to continued ownership (but not with respect to the ability to
foreclose on the security interest granted hereunder) of the Collateral, the
possible application of the US Exxon-Xxxxxx Act, which may require a US person
to be the beneficial owner of the Collateral. No filing, registration or other
action is required to be accomplished under Singapore law in order to cause the
security interest created by this Agreement in the Collateral to be a valid
first and prior perfected security interest therein, other than the registration
of this Agreement with the Singapore Registry of Companies and Businesses.
(d) Legal Effect. This Agreement has been duly executed and delivered
by the Pledgor and is the legal, valid and binding obligation of the Pledgor,
enforceable against the Pledgor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
PLEDGE OF SHARES AGREEMENT
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(e) Commercial Activity; Absence of Immunity. It is subject to civil
and commercial law with respect to its obligations under this Agreement, and the
making and performance of this Agreement by the Pledgor constitute private and
commercial acts rather than public or governmental acts. The Pledgor is not
entitled to any immunity on the ground of sovereignty or the like from the
jurisdiction of any court or from any action, suit, set-off or proceeding, or
the service of process in connection therewith, arising under this Agreement.
(f) Taxes. There is no income, stamp or other tax, levy, assessment,
impost, deduction or charge of any kind imposed by the Republic of Singapore (or
any municipality or other political subdivision or taxing authority thereof or
therein that exercises de facto or de jure power to impose such tax, levy,
assessment, impost, deduction or charge) either (i) on or by virtue of the
execution or delivery of this Agreement or (ii) on any payment to be made by the
Pledgor pursuant to this Agreement.
(g) Legal Form. This Agreement is in proper legal form under the laws
of the Republic of Singapore for the enforcement thereof against the Pledgor
under such law, and if this Agreement were stated to be governed by such law, it
would constitute a legal, valid and binding obligation of the Pledgor under such
law, enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability. All formalities required in the Republic of Singapore for the
validity and enforceability of this Agreement have been accomplished, and no
taxes are required to be paid and no notarization is required, for the validity
and enforceability thereof.
(h) Collateral. (i) It is the sole beneficial owner of the Collateral
in which it purports to grant a security interest pursuant to Section 3 hereof,
(ii) Priority. The security interest created hereby constitutes a
valid and perfected security interest in the Collateral in which the
Pledgor purports to grant a security interest pursuant to Section 3 hereof,
subject to no equal or prior Security.
(i) Changes in Circumstances. It has not (i) within the period of four
months prior to the date hereof, changed the location of its chief executive
office or the jurisdiction of its organization, or (ii) changed its name.
(j) Pledged Securities. (i) The Pledged Securities evidenced by the
certificates identified in Annex 1 hereto are, and all other Pledged Securities
in which the Pledgor shall hereafter grant a security interest pursuant to
Section 3 will be, duly authorized, validly existing, fully paid and
non-assessable and none of such Pledged Securities is or will be subject to any
contractual restriction, or any restriction under the charter, by-laws or other
organizational
PLEDGE OF SHARES AGREEMENT
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documents of the Issuer, upon the transfer of such Pledged Securities (except
for the contractual restriction concerning the transfer of the Pledged
Securities described in Section 5.13).
ii) Annex 1 hereto correctly identifies, as at the date hereof, the
Issuer, the class and par value of the shares constituting the Pledged
Securities and the number of shares (and registered owners thereof)
represented by each such certificate, the principal amount and interest
rate of the convertible notes constituting the Pledged Securities and the
warrants constituting the Pledged Securities.
(k) Benefit to Pledgor. It acknowledges that it will derive
substantial benefit from the Secured Obligations.
(l) Solvency. It is, and after giving effect to the making of the
Loans and the use of proceeds thereof will be, Solvent.
Section 3. Collateral. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise) of
the Secured Obligations whether now existing or hereafter from time to time
arising, the Pledgor hereby pledges, grants and charges to the Security Agent,
for the benefit of the Secured Parties, a security interest in all of the
Pledgor's right, title and interest in, to and under the following property,
assets and revenues, whether now owned by the Pledgor or hereafter acquired and
whether now existing or hereafter coming into existence and all such other
property as described in one or more supplements to this Agreement entered into
between the Pledgor and the Security Agent in connection with the pledge of
Additional Security by the Pledgor pursuant to Clause 19.4 of the Facility
Agreement (all of the property, assets and revenues described in this Section 3
being collectively referred to herein as the "Collateral"):
(a) the shares of common and preferred stock, convertible notes and
warrants of the Issuer represented by the certificates identified in Annex
1 hereto under the name of the Pledgor, in each case together with the
certificates evidencing the same (collectively, the "Pledged Securities"),
together with:
(I) all shares, securities, moneys or property representing a
dividend on any of the Pledged Securities, or representing a
distribution or return of capital upon or in respect of the Pledged
Securities, or resulting from a split-up, revision, reclassification
or other like change of the Pledged Securities or otherwise received
in exchange therefor, and any subscription warrants, rights or options
issued to the holders of, or otherwise in respect of, the Pledged
Securities, and
PLEDGE OF SHARES AGREEMENT
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(II) without affecting the obligations of the Pledgor under any
provision prohibiting such action hereunder or under the Facility
Agreement, in the event of any consolidation or merger in which the
Issuer is not the surviving corporation, all (or such lesser amount as
is required to be pledged by the Pledgor hereunder pursuant to Clause
19.4 of the Facility Agreement) of the shares of each class of the
capital stock of the successor corporation formed by or resulting from
such consolidation or merger received by the Pledgor in respect of the
Pledged Securities (the Pledged Securities, together with all other
certificates, shares, securities, properties or moneys as may from
time to time be pledged hereunder pursuant to clause (I) above or this
clause (II) and the proceeds of and to any such property and, to the
extent related to any such property or such proceeds, all books,
correspondence, credit files, records, invoices and other papers being
herein collectively called the "Stock Collateral");
(b) all Proceeds, substitutions and replacements of and to any of the
Collateral and, to the extent related to any of the foregoing, all books,
correspondence, credit files, records, invoices and other paper (including
all tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Pledgor or any computer bureau or
service company from time to time acting for the Pledgor). For the
avoidance of doubt and notwithstanding any provision to the contrary
herein, in the event the Security Agent exercises its remedies hereunder,
the Pledgor may retain copies of its books and records as required or
reasonably advisable to comply with applicable law.
Section 4. Further Assurances; Remedies. In furtherance of the grant
of the pledge and security interest pursuant to Section 3 hereof, the Pledgor
hereby agrees with the Security Agent for the benefit of the Secured Parties as
follows:
4.01 Delivery and Other Perfection. The Pledgor shall:
(a) deliver to the Security Agent any and all Security Certificates
constituting part of the Collateral in which the Pledgor purports to grant
a security interest hereunder (including any Additional Securities),
endorsed and/or accompanied by such instruments of assignment and transfer
in such form and substance as the Security Agent may reasonably request
(including appropriate dividend, distribution and other orders and
documents to that end) and the Security Agent (or its agent) shall hold
such Security Certificates in New York City for the benefit of the Secured
Parties; provided that so long as no Payment Event shall have occurred and
be continuing the Security Agent shall, promptly upon written request of
the Pledgor, make appropriate arrangements for making
PLEDGE OF SHARES AGREEMENT
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any Security Certificates pledged by the Pledgor available to it for
purposes of presentation, collection, renewal or exercising powers of
ownership pertaining to the Stock Collateral including in connection with
stock splits (any such arrangement to be effected, to the extent deemed
appropriate by the Security Agent, against trust receipt or like document);
(b) if any of the shares, securities, moneys or property required to
be pledged by the Pledgor under Section 3 hereof are received by the
Pledgor, forthwith either (x) transfer and deliver to the Security Agent
such shares, securities, moneys or property so received by the Pledgor
(together with the certificates for any such shares and securities duly
endorsed in blank or accompanied by undated stock powers duly executed in
blank), all of which thereafter shall be held by the Security Agent,
pursuant to the terms of this Agreement, as part of the Collateral or (y)
take such other action as the Security Agent shall deem reasonably
necessary or appropriate to duly record the Security created hereunder in
such shares, securities, moneys or property in said Section 3;
(c) give, execute, deliver, file, record, authorize or obtain all such
financing statements, notices, instruments, documents, agreements or
consents or other papers as may be necessary or desirable (in the
reasonable judgment of the Security Agent) to create, preserve, perfect or
validate the security interest granted pursuant hereto or to enable the
Security Agent to exercise and enforce its rights hereunder with respect to
such pledge and security interest, including, in the case of any exercise
or enforcement of rights, causing any or all of the Stock Collateral to be
transferred of record into the name of the Security Agent or its nominee
(and the Security Agent agrees that if any Stock Collateral is transferred
into its name or the name of its nominee, the Security Agent will
thereafter promptly give to the Pledgor copies of any notices and
communications received by it with respect to the Stock Collateral);
provided that nothing in this Agreement shall entitle the Security Agent or
otherwise to cause the Pledgor to register any Collateral for public sale
under applicable laws;
(d) keep full and accurate books and records relating to the
Collateral;
(e) furnish to the Security Agent from time to time such other
information as the Security Agent may reasonably request; and
(f) permit representatives of the Security Agent, upon reasonable
notice, at any time during normal business hours to inspect and make
abstracts from its books and records pertaining to the Collateral, and
permit representatives of the Security Agent to be present at the Pledgor's
place of business to receive copies of all communications and
PLEDGE OF SHARES AGREEMENT
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remittances relating to the Collateral, and forward copies of any notices
or communications received by the Pledgor with respect to the Collateral,
all in such manner as the Security Agent may reasonably require.
4.02 Other Financing Statements and Security. Without the prior
written consent of the Security Agent, the Pledgor shall not file or suffer to
be on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Security Agent is not named as the sole secured party
for the benefit of the Secured Parties.
4.03 Preservation of Rights. The Security Agent shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
4.04 Certificated Securities. (a) So long as no Payment Event shall
have occurred and be continuing, the Pledgor shall have the right to exercise
all voting, consensual and other powers of ownership pertaining to the Stock
Collateral for all purposes not inconsistent with the terms of this Agreement or
the Facility Agreement, provided that the Pledgor agrees that it will not vote
the Stock Collateral in any manner that is inconsistent with the terms of this
Agreement or the Facility Agreement; and the Security Agent shall execute and
deliver to the Pledgor or cause to be executed and delivered to the Pledgor all
such proxies, powers of attorney, dividend and other orders, and all such
instruments, without recourse, as the Pledgor may reasonably request in writing
for the purpose of enabling the Pledgor to exercise the rights and powers that
it is entitled to exercise pursuant to this Section 4.04(a).
(b) The Pledgor shall procure that all dividends or interest on the
Pledged Securities in the form of cash shall be paid to an account to be
maintained by the Security Agent on behalf of the Secured Parties at Standard
Chartered Bank in New York, New York, U.S.A., the number of which shall be
notified by the Security Agent to the Pledgor, the Borrower and the Secured
Parties within 15 Business Days after the date hereof. So long as no Payment
Event shall have occurred and be continuing and the Security Agent shall have
received a written notification from the Borrower that no Payment Event has
occurred and is continuing, the Security Agent shall deliver such dividends or
interest paid in cash to the Pledgor after receipt of the same.
4.05 Payment Event, Etc. Upon the occurrence and during the
continuance of a Payment Event:
(a) the Security Agent may make any compromise or settlement deemed
desirable with respect to any of the Collateral and may extend the time of
payment,
PLEDGE OF SHARES AGREEMENT
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arrange for payment in installments, or otherwise modify the terms of, any
of the Collateral;
(b) the Security Agent shall have all of the rights and remedies with
respect to the Collateral of a secured party under the UCC (whether or not
the UCC is in effect in the jurisdiction where the rights and remedies are
asserted) and such additional rights and remedies to which a secured party
is entitled under the laws in effect in any jurisdiction where any rights
and remedies hereunder may be asserted, including the right, to the maximum
extent permitted by law, to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral as if the Security Agent
were the sole and absolute owner thereof (and the Pledgor agrees to take
all such action as may be appropriate to give effect to such right);
(c) the Security Agent in its discretion may, in its name or in the
name of the Pledgor or otherwise, demand, xxx for, collect or receive any
money and property and all other general intangibles whatsoever, at any
time payable or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so; and
(d) the Security Agent may, upon 10 Business Days' prior written
notice to the Pledgor of the time and place, with respect to the Collateral
or any part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Secured Parties or any of their
respective agents, sell, lease, assign or otherwise dispose of all or any
part of such Collateral, at such place or places as the Security Agent
chooses, and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of the
time or place thereof (except such notice as is required above or by
applicable statute and cannot be waived), and any Secured Party or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of
the Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise), of the Pledgor, any
such demand, notice and right or equity being hereby expressly waived and
released. The Security Agent may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale, and such
sale may be made at any time or place to which the sale may be so
adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09 hereof.
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The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act, and applicable state securities laws, the
Security Agent may be compelled, with respect to any sale of all or any part of
the Collateral, to limit purchasers to those who will agree, among other things,
to acquire the Collateral for their own account, for investment and not with a
view to the distribution or resale thereof. The Pledgor acknowledges that any
such private sales may be at prices and on terms less favorable to the Security
Agent than those obtainable through a public sale without such restrictions,
and, notwithstanding such circumstances, agrees that any such private sale shall
be deemed to have been made in a commercially reasonable manner and that the
Security Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Collateral for the period of time necessary
to permit the respective Issuer or issuer thereof to register it for public
sale.
4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Borrower and the Pledgor shall remain
liable for any deficiency.
4.07 Removals, Etc. Without at least 30 days' prior written notice to
the Security Agent, the Pledgor shall not change the jurisdiction of its
organization or its name from the name shown on the signature pages hereto.
Annex 2 hereto correctly specifies (i) the location, including county or parish,
of the place of business of the Pledgor or, if the Pledgor has more than one
place of business, of the chief executive office of the Pledgor, in each case
during the period of four months ending on the date hereof and (ii) the
jurisdiction of organization of the Pledgor during the period of four months
ending on the date hereof.
4.08 Private Sale. The Secured Parties shall incur no liability as a
result of the sale of the Collateral, or any part thereof, at any private sale
pursuant to Section 4.05 hereof conducted in a commercially reasonable manner.
The Pledgor hereby waives any claims against the Secured Parties arising by
reason of the fact that the price at which the Collateral may have been sold at
such a private sale was less than the price that might have been obtained at a
public sale or was less than the aggregate amount of the Secured Obligations,
even if the Security Agent accepts the first offer received and does not offer
the Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise expressly provided
herein and except as provided below in this Section 4.09, the Proceeds of any
collection, sale or other realization of all or any part of the Collateral
pursuant hereto, and any other cash at the time held by the Security Agent under
this Section 4, shall be applied by the Security Agent:
First, in or towards payment of any unpaid fees, costs, expenses and
liabilities (including any interest thereon as provided in the Security
Documents) incurred by or on
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behalf of the Security Agent (or any adviser, receiver, delegate, attorney
or agent) and the remuneration of the Security Agent or the Facility Agent
(or any adviser, receiver, delegate, attorney or agent) in connection with
carrying out its duties or exercising powers or discretions under the
Finance Documents or this Agreement;
Second, in or towards payment to the Facility Agent for application
towards any unpaid costs and expenses incurred by or on behalf of any
Secured Party in connection with such enforcement, recovery or other
payment pari passu between themselves;
Third, in or towards payment to the Secured Parties without any
preference or priority whatsoever of the balance of the Secured Obligations
(provided that if such recoveries or other amounts are insufficient to pay
all the Secured Obligations, such recoveries or other amounts shall be
applied pro rata between the Secured Parties); and
Fourth, after the Final Discharge Date (as defined in the Security
Agreement), in payment of the surplus (if any) to the Pledgor or other
person entitled thereto;
Provided that any and all payments by or on account of any obligation of the
Pledgor hereunder shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority; provided further that if the
Pledgor shall be required to deduct any taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the relevant Secured Party (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Pledgor shall make such deductions and (iii)
the Pledgor shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
4.10 Attorney-in-Fact. Without limiting any rights or powers granted
by this Agreement to the Security Agent while no Payment Event has occurred and
is continuing, upon the occurrence and during the continuance of any Payment
Event the Security Agent is hereby appointed the attorney-in-fact of the
Pledgor, with full authority in the place and stead of the Pledgor, and in the
name of the Pledgor or otherwise, and at the Pledgor's expense, for the purpose
of carrying out the provisions of this Section 4 and taking any action and
executing any instruments that the Security Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest. Without limiting
the generality of the foregoing, so long as the Security Agent shall be entitled
under this Section 4 to make collections in respect of the Collateral, the
Security Agent shall have the right and power to receive, endorse and collect
all checks made payable to the order of
PLEDGE OF SHARES AGREEMENT
-13-
any Pledgor representing any dividend, payment or other distribution in respect
of the Collateral or any part thereof and to give full discharge for the same.
4.11 Termination; Release. (a) When all Secured Obligations shall have
been finally paid in full or the Security on all of the Pledged Securities shall
have been released pursuant to clause (b) below, this Agreement shall terminate,
and the Security Agent shall, upon written request, cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the Pledgor. The Security Agent shall
also, upon written request, execute and deliver to the Pledgor upon such
termination such UCC termination statements, as shall be reasonably requested in
writing by the Pledgor to effect the termination and release of the Security on
the Collateral.
(b) The Security Agent shall, as soon as practicable upon receipt by
it of a written request from the Borrower in accordance with Clause 19.5 of the
Facility Agreement, release, transfer and deliver such Pledged Securities as the
Borrower may request in accordance with Clause 19.5 of the Facility Agreement
and at the sole cost and expense of the Pledgor.
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Security Agent to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Security Agent of any right, power
or remedy hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies herein are cumulative
and are not exclusive of any remedies provided by law.
5.02 Notices. All notices, requests, consents and demands hereunder
shall be made in accordance with Clause 29 of the Facility Agreement.
5.03 Expenses; Indemnification. (a) The Pledgor agrees to reimburse
each of the Secured Parties for all of their costs and expenses (including the
fees and expenses of legal counsel) in connection with (i) any Default and any
enforcement or collection proceeding resulting therefrom, including all manner
of participation in or other involvement with (w) performance by the Security
Agent of any obligations of the Pledgor in respect of the Collateral that the
Pledgor has failed or refused to perform, (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, or any actual
or attempted sale, or any exchange, enforcement, collection, compromise or
settlement in respect of any of the Collateral, and for the care of the
Collateral and defending or asserting rights and claims of the Security Agent in
respect thereof, by litigation or otherwise, including expenses of insurance,
(y)
PLEDGE OF SHARES AGREEMENT
-14-
judicial or regulatory proceedings and (z) workout, restructuring or other
negotiations or proceedings (whether or not the workout, restructuring or
transaction contemplated thereby is consummated) and (ii) the enforcement of
this Section 5.03, and all such costs and expenses shall be Secured Obligations
entitled to the benefits of the collateral security provided pursuant to Section
3 hereof.
(b) The Pledgor agrees to indemnify the Security Agent and each
Lender, and each Related Party of any of the foregoing Persons (each such Person
being called an "Indemnitee") against, and hold each Indemnitee harmless from,
any and all losses, claims, damages, liabilities and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, incurred
by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the transactions contemplated hereby or (ii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) To the extent permitted by applicable law, the Pledgor shall not
assert, and the Pledgor hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement.
(d) All amounts due under this Section 5.03 shall be payable promptly
after written demand therefor.
(e) All indemnified amounts recoverable by an Indemnitee under this
Section 5.03 shall be net of recoveries, contributions, indemnification or other
similar payments from third Persons to the extent actually received in cash by
such Indemnitee (including but not limited to any insurance proceeds). Any such
amounts received in cash by and Indemnitee with respect to any indemnity claim
after it has received an indemnity payment hereunder shall be promptly paid over
to the Pledgor; provided that the Indemnitee shall not be obligated to pay over
any such amount in excess of the amount paid by the Pledgor to the Indemnitee.
5.04 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Pledgor
and the Security Agent
PLEDGE OF SHARES AGREEMENT
-15-
(in accordance with the terms of the Facility Agreement). Any such amendment or
waiver shall be binding upon the Secured Parties and the Pledgor.
5.05 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Pledgor and
the Security Agent (provided however that the Pledgor shall not assign or
transfer its rights hereunder without the prior written consent of the Security
Agent).
5.06 Captions. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement.
5.07 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery of an executed counterpart of a signature
page of this Agreement shall be effective as delivery of a manually executed
counterpart of this Agreement.
5.08 Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be governed by, and construed in accordance with, the law
of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally submits,
for itself and its Property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State court (or, to the extent permitted by law, in such
Federal court). Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Security Agent or any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement against the Pledgor or its properties in the courts of any
jurisdiction.
(c) The Pledgor hereby agrees that service of all writs, process and
summonses in any such suit, action or proceeding brought in the State of New
York may be made upon CT Corporation, presently located at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent"), and the Pledgor hereby confirms
and agrees that the Process Agent has been
PLEDGE OF SHARES AGREEMENT
-16-
duly and irrevocably appointed as its agent and true and lawful attorney-in-fact
in its name, place and stead to accept such service of any and all such writs,
process and summonses, and agrees that the failure of the Process Agent to give
any notice of any such service of process to the Pledgor shall not impair or
affect the validity of such service or of any judgment based thereon. The
Pledgor hereby further irrevocably consents to the service of process in any
suit, action or proceeding in such courts by the mailing thereof by the Security
Agent or any Lender by registered or certified mail, postage prepaid, at its
address set forth beneath its signature hereto. Such appointment shall be
irrevocable as long as this Agreement has not been terminated in accordance with
Section 4.12(a) hereof, except that if for any reason the Process Agent
appointed hereby ceases to act as such, the Pledgor will, by an instrument
reasonably satisfactory to the Security Agent, appoint another Person in the
Borough of Manhattan, New York as such Process Agent subject to the approval of
the Security Agent (not to be unreasonably withheld). The Pledgor covenants and
agrees that it shall take any and all reasonable action, including the execution
and filing of any and all documents, that may be necessary to continue the
designation of a Process Agent pursuant to this Section 5.08(c) in full force
and effect and to cause the Process Agent to act as such.
(d) Nothing herein shall in any way be deemed to limit the ability of
the Security Agent or any Lender to serve any such writs, process or summonses
in any other manner permitted by applicable law or to obtain jurisdiction over
the Pledgor in such other jurisdictions, and in such manner, as may be permitted
by applicable law.
(b) The Pledgor hereby irrevocably waives any objection that it may
now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in the Supreme
Court of the State of New York, County of New York or in the United States
District Court for the Southern District of New York, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
5.09 No Immunity. To the extent that the Pledgor may be or become
entitled, in any jurisdiction in which judicial proceedings may at any time be
commenced with respect to this Agreement, to claim for itself or its properties
or revenues any immunity from suit, court jurisdiction, attachment prior to
judgment, attachment in aid of execution of a judgment, execution of a judgment
or from any other legal process or remedy relating to its obligations under this
Agreement, and to the extent that in any such jurisdiction there may be
attributed such an immunity (whether or not claimed), the Pledgor hereby
irrevocably agrees not to claim and hereby irrevocably waives such immunity to
the fullest extent permitted by the laws of such jurisdiction.
PLEDGE OF SHARES AGREEMENT
-17-
5.10 Agents and Attorneys-in-Fact; Affiliates. (a) The Security Agent
may employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
(b) In order to enable to bring relevant expertise to bear on its
engagement under this Agreement from among its global affiliates, the Pledgor
agrees that the Security Agent may share information obtained from the Pledgor
hereunder with its affiliates, and may perform the services contemplated hereby
in conjunction with its affiliates, and that any affiliates performing services
hereunder shall be entitled to the benefits and subject to the terms of this
Agreement.
5.11 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 Secured Parties in
order to carry out the intentions of the parties hereto as nearly as may be
possible and (ii) the invalidity or unenforceability of any provision hereof in
any jurisdiction shall not affect the validity or enforceability of such
provision in any other jurisdiction.
5.12 Representation and Warranty of the Security Agent. The Security
Agent hereby represents and warrants to the Pledgor that it is a corporation
with total assets in excess of US$5,000,000 and, to the extent it exercises any
remedies in connection with any Collateral, it will not intentionally breach any
applicable laws in the United States, including the Securities Act and any other
securities laws of any states of the United States.
5.13 Lock-Up. The Security Agent acknowledges and agrees that, in the
case of a foreclosure of the security interest in or subsequent resale of the
Collateral, the transfer restrictions set forth in the letter dated November 5,
2003 from the Pledgor to Citigroup Global Markets Inc. attached in Annex 3 shall
apply to the Collateral until February 5, 2004. The parties agree that the
transfer restrictions described in the immediately preceding sentence shall not
in any way constitute a Security over the Collateral nor limit or impede the
Security Agent's ability to foreclose on the security interest granted by the
Pledgor pursuant to Section 3 and that the transfer restrictions in Annex 3
shall cease to have effect on and as of February 5, 2004.
PLEDGE OF SHARES AGREEMENT
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
i-STT INVESTMENTS PTE. LTD.
By /s/ Xxx Xxxxx Kiat
-------------------------------------------
Name: Xxx Xxxxx Kiat
Title: Director
Address for notices: 00 Xxxxxxx Xxxx #00-00/00
XxxxXxx Xxxxxx
Xxxxxxxxx 000000
Fax No.: (00) 0000-0000
STANDARD CHARTERED BANK, as Security Agent
By /s/ Sum Xxxx Xxxx
-------------------------------------------
Name: Sum Xxxx Xxxx
Title: Senior Vice President
Address for notices: 0 Xxxxxxx Xxxx
#00-00
Xxxxxxxxx 000000
Fax No.: (00) 0000-0000
PLEDGE OF SHARES AGREEMENT
ANNEX 1
PLEDGED SECURITIES
[See Section 2(j)]
Issuer Certificate Nos. Registered Owner Number of Shares
------ ---------------- ---------------- ----------------
Equinix, Inc. E2012 PLEDGOR 864,477 shares of common stock, par
value $0.001
Equinix, Inc. PA-3; PLEDGOR 1,868,667 series A preferred shares,
PA-4 par value $0.001
Equinix, Inc. CSN-1 PLEDGOR US$30 million principal amount of 14%
series A-1 convertible secured notes
due 2007, convertible into preferred
shares, which are in turn convertible
into approximately 3,268,734 shares of
common stock as of December 9, 2003
Equinix, Inc. PIK-1 PLEDGOR US$1.4 million principal amount of 14%
PIK-A-1-2 series A-1 PIK convertible secured
notes due 2007, convertible into
preferred shares, which are in turn
convertible into approximately 152,541
shares of common stock as of December 9,
2003 and US$2.198 million principal
amount of 14% series A-1 PIK convertible
secured notes due 2007, convertible into
preferred shares, which are in turn
convertible into approximately 239,489
shares of common stock as of December 9,
2003
ANNEX 1 TO PLEDGE OF SHARES AGREEMENT
-2-
Equinix, Inc. PS-1 PLEDGOR Preferred stock warrant expiring
December 2007, convertible into
approximately 965,674 preferred shares
as of December 9, 2003
ANNEX 2 TO SECURITY AGREEMENT
ANNEX 2
LIST OF LOCATIONS
[See Section 4.07.]
i-STT Investments Pte. Ltd., a Singapore company
00 Xxxxxxx Xxxx #00-00/00
XxxxXxx Xxxxxx
Xxxxxxxxx 000000
ANNEX 2 TO PLEDGE OF SHARES AGREEMENT
ANNEX 3
[Citibank Letter to be attached]
ANNEX 3 TO PLEDGE OF SHARES AGREEMENT
