EXHIBIT 4.7
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of December 9, 2003 (this "AGREEMENT"),
among J. Xxx XxXxxxxxx, S.A., a Panamanian corporation (the "COMPANY"), each
Subsidiary of the Company listed on the signature pages hereto and The Bank of
New York, not in its individual capacity but solely as collateral agent (in such
capacity, the "COLLATERAL AGENT").
WHEREAS, the Company, the Guarantors from time to time party thereto
and The Bank of New York, not in its individual capacity but solely as trustee
(the "TRUSTEE"), have entered into the Indenture dated as of December 9, 2003
(as amended, restated, supplemented or otherwise modified from time to time, the
"INDENTURE");
WHEREAS the Company is willing to secure its obligations under the
Indenture and the Notes issued thereunder by granting Liens on certain of its
assets to the Collateral Agent as provided herein;
WHEREAS each other Pledgor has guaranteed the foregoing obligations of
the Company and is willing to secure its obligations under that guarantee by
granting Liens on certain of its assets to the Collateral Agent as provided
herein;
NOW, THEREFORE, in consideration of the premises and to induce the
Collateral Agent to enter into the Indenture and to induce potential investors
to purchase the Notes, the Pledgors hereby agree with the Collateral Agent as
follows:
Section 1. Definitions.
(a) Terms Defined in Indenture. Terms defined in the Indenture and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein.
(b) Additional Definitions. The following additional terms, as used
herein, have the following meanings:
"COLLATERAL" means all property, whether now owned or hereafter
acquired, on which a Lien is granted or purports to be granted to the Collateral
Agent pursuant to the Pledge Documents. When used with respect to a specific
Pledgor, the term "Collateral" means all its property on which such a Lien is
granted or purports to be granted.
"CONTROL" has the meaning specified in UCC Section 8-106.
"INDENTURE" has the meaning set forth in the first WHEREAS clause.
"EQUITY INTEREST" means (i) in the case of a corporation, any shares of
its capital stock, (ii) in the case of a limited liability company, any
membership interest therein, (iii) in the case of a partnership, any partnership
interest (whether general or limited) therein, (iv) in the case of any other
business entity, any participation or other interest in the equity or profits
thereof and (v) any warrant, option or other right to acquire any Equity
Interest described in this definition.
"LLC INTEREST" means a membership interest or similar interest in a
limited liability company.
"ORIGINAL PLEDGOR" means any Pledgor that grants a Lien on any of its
assets hereunder on the Issue Date.
"OWN" refers to the possession of sufficient rights in property to
grant a security interest therein as contemplated by UCC Section 9-203, and
"ACQUIRE" refers to the acquisition of any such rights.
"PERMITTED ENCUMBRANCES" has the meaning set forth in the Indenture.
"PARTNERSHIP INTEREST" means a partnership interest, whether general
or limited.
"PLEDGE AGREEMENT SUPPLEMENT" means a Pledge Agreement Supplement,
substantially in the form of Exhibit A, signed and delivered to the Collateral
Agent for the purpose of adding a Subsidiary of the Company as a party hereto
pursuant to Section 15 and/or adding additional property to the Collateral
pursuant to Section 16.
"PLEDGE DOCUMENTS" means this Agreement, the Pledge Agreement
Supplements and all other supplemental or additional agreements or similar
instruments delivered hereunder.
"PLEDGED", when used in conjunction with any type of asset, means at
any time an asset of such type that is included (or that creates rights that are
included) in the Collateral at such time. For example, "Pledged Equity Interest"
means an Equity Interest that is included in the Collateral at such time.
"PLEDGORS" means the Company, each Subsidiary of the Company listed on
the signature pages hereto and each Subsidiary of the Company which from time to
time becomes party hereto pursuant to Section 15.
"POST-PETITION INTEREST" means any interest that accrues after the
commencement of any case, proceeding or other action relating to the bankruptcy,
insolvency or reorganization of any one or more of the Pledgors (or would accrue
but for the operation of applicable bankruptcy or insolvency laws), whether or
not such interest is allowed or allowable as a claim in any such proceeding.
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"PROCEEDS" means all proceeds of, and all other profits, products,
rents or receipts, in whatever form, arising from the collection, sale,
exchange, assignment, or other disposition of, or other realization upon, any
Collateral.
"SECURED AGREEMENT", when used with respect to any Secured Obligation,
refers collectively to each instrument, agreement or other document that sets
forth obligations of the Company, obligations of a Guarantor and/or rights of
the holder with respect to such Secured Obligation.
"SECURED GUARANTEE" means, with respect to each Guarantor, its
guarantee of the Secured Obligations under Article 12 of the Indenture.
"SECURED OBLIGATIONS" has the meaning set forth in the Indenture.
"SECURED PARTIES" has the meaning set forth in the Indenture.
"TRANSACTION LIENS" means the Liens granted by the Pledgors under the
Pledge Documents.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York; provided that, if perfection or the effect of
perfection or non-perfection or the priority of any Transaction Lien on any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than New York, "UCC" means the Uniform Commercial Code as in
effect from time to time in such other jurisdiction for purposes of the
provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.
(c) Terms Generally. The definitions of terms herein (including those
incorporated by reference to the UCC or to another document) apply equally to
the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun includes 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,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (iii) the words "HEREIN", "HEREOF" 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, (iv) all references herein to
Sections, Exhibits and Schedules shall be construed to refer to Sections of, and
Exhibits and Schedules to, this Agreement and (v) the word "PROPERTY" shall be
construed to refer to any and all
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tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
Section 2. Pledge.
(a) The Company, in order to secure the Secured Obligations, and each
other Pledgor, in order to secure its Secured Guarantee, grants to the
Collateral Agent for the benefit of the Secured Parties a continuing security
interest in all the following property of the Company or such other Pledgor, as
applicable, whether now owned or existing or hereafter acquired or arising and
regardless of where located:
(i) all Equity Interests in any Material Subsidiary or
Material Guarantor held directly by such Pledgor, and all of its rights
and privileges with respect thereto and all income and profits thereon,
and all dividends and other payments and distributions with respect
thereto; and
(ii) all Proceeds of the Collateral described in the foregoing
clause (i);
(b) The Transaction Liens are granted as security only and shall not
subject the Collateral Agent or any other Secured Party to, or transfer or in
any way affect or modify, any obligation or liability of any Pledgor with
respect to any of the Collateral or any transaction in connection therewith.
Section 3. General Representations and Warranties. Each Original
Pledgor represents and warrants that:
(a) Such Pledgor is duly organized, validly existing and in good
standing under the laws of the jurisdiction identified as its jurisdiction of
organization in Schedule 1 hereto.
(b) Schedule 1 lists all Equity Interests in Material Subsidiaries or
Material Guarantors owned by such Pledgor as of the Issue Date.
(c) Such Pledgor owns its Collateral free and clear of any Lien other
than Permitted Encumbrances. All shares of capital stock included in such
Pledged Equity Interests have been duly authorized and validly issued and, in
the case of Pledged Equity Interests issued by an entity organized under the
laws of a jurisdiction of the United States, are fully paid and non-assessable.
None of such Pledged Equity Interests is subject to any option to purchase or
similar right of any Person. Except as otherwise permitted in the Indenture,
such Pledgor is not and will not become a party to or otherwise bound by any
agreement (except the Indenture, the Pledge Documents and the other Secured
Agreements) which restricts in any manner the rights of any present or future
holder of any Pledged Equity Interest with respect thereto.
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(d) The Transaction Liens granted hereby on all Collateral owned by
such Pledgor (i) have been validly created, (ii) will attach to each item of
such Collateral on the Issue Date (or, if such Pledgor first obtains rights
thereto on a later date, on such later date) and (iii) when so attached, will
secure all the Secured Obligations or such Pledgor's Secured Guarantee, as the
case may be.
(e) Immediately prior to delivery of the Pledged Equity Interests to
the Collateral Agent, such Pledgor holds all Pledged Equity Interests owned by
it directly (i.e., not through a Subsidiary, a Securities Intermediary (as
defined in the UCC) or any other Person). All Pledged Equity Interests are
represented by a certificate.
Section 4. Further Assurances; General Covenants. (a) Each Pledgor
covenants that such Pledgor will, from time to time, at the Company's expense,
execute, deliver, file and record any statement, assignment, instrument,
document, agreement or other paper and take any other action (including any
filing of financing or continuation statements under the UCC) that from time to
time may be necessary or desirable, or that the Collateral Agent may reasonably
request, in order to create, preserve, perfect, confirm, validate or enforce the
Transaction Liens of such Pledgor's Collateral and cause the Collateral Agent to
have Control thereof and enable the Collateral Agent and the other Secured
Parties to obtain the full benefits of the Pledge Documents. To the extent
permitted by applicable law, such Pledgor authorizes the Collateral Agent to
file such financing statements or continuation statements without such Pledgor's
signature appearing thereon.
(b) No Pledgor will (i) change its name or corporate structure or (ii)
change its location (determined as provided in UCC Section 9-307) unless it
shall have given the Collateral Agent prior notice thereof.
(c) Each Pledgor will, promptly upon request, provide to the Collateral
Agent all information and evidence concerning such Pledgor's Collateral that the
Collateral Agent may reasonably request from time to time to enable it to
enforce the provisions of the Pledge Documents.
Section 5. Investment Property. Each Pledgor represents, warrants and
covenants as follows:
(a) Equity Interests. On the Issue Date (in the case of an Original
Pledgor) or the date on which it signs and delivers its first Pledge Agreement
Supplement (in the case of any other Pledgor), such Pledgor will deliver to the
Collateral Agent as Collateral hereunder all certificates representing Pledged
Equity Interests then owned by such Pledgor. Thereafter, whenever such Pledgor
acquires any other certificate representing a Pledged Equity Interest, such
Pledgor will immediately deliver such certificate to the Collateral Agent as
Collateral hereunder.
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(b) Perfection as to Equity Interests. When such Pledgor delivers the
certificate representing any Pledged Equity Interest owned by it to the
Collateral Agent and complies with Section 5(c) in connection with such
delivery, (i) the Transaction Lien on such Pledged Equity Interest will be
perfected, subject to no prior Liens or rights of others, (ii) the Collateral
Agent will have Control of such Pledged Equity Interest and (iii) the Collateral
Agent will be a protected purchaser (within the meaning of UCC Section 8-303)
thereof.
(c) Delivery of Pledged Certificates. All certificates representing
Pledged Equity Interests, when delivered to the Collateral Agent, will be in
suitable form for transfer by delivery, or accompanied by duly executed
instruments of transfer or assignment in blank.
(d) Communications. Each Pledgor will promptly give to the Collateral
Agent copies of any material notices and other communications received by it
from any third party with respect to Pledged Equity Interests registered in the
name of such Pledgor or its nominee.
(e) Compliance with Applicable Foreign Laws. If and so long as the
Collateral includes any Equity Interest in a legal entity organized under the
laws of a jurisdiction outside the United States, the relevant Pledgor will take
all such action as may be required under the laws of such foreign jurisdiction
to ensure that the Transaction Lien on such Collateral ranks prior to all Liens
and rights of third parties therein.
Section 6. Transfer Of Record Ownership. To the extent permitted by
and subject to compliance with applicable law, at any time when an Event of
Default shall have occurred and be continuing and provided that the Collateral
Agent shall have given written notice to the Pledgors of its intent to exercise
its rights under this Section 6, the Collateral Agent may (and to the extent
that action by it is required, the relevant Pledgor, if directed to do so by the
Collateral Agent, will as promptly as practicable) cause each of the Pledged
Equity Interests (or any portion thereof specified in such direction) to be
transferred of record into the name of the Collateral Agent or its nominee. Each
Pledgor will take any and all actions reasonably requested by the Collateral
Agent to facilitate compliance with this Section. The Collateral Agent will
promptly give to the relevant Pledgor copies of any notices and other
communications received by the Collateral Agent with respect to Pledged Equity
Interests registered in the name of the Collateral Agent or its nominee.
Section 7. Right to Vote Pledged Equity Interests. (a) Unless an Event
of Default shall have occurred and be continuing and the Collateral Agent shall
have given the Pledgors written notice of its intent to exercise its rights
under this Section 7(a), each Pledgor will have the right, from time to time, to
vote and to give consents, ratifications and waivers with respect to any Pledged
Equity Interests owned by it, and the Collateral Agent will, upon receiving a
written
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request from such Pledgor, deliver to such Pledgor or as specified in such
request such proxies, powers of attorney, consents, ratifications and waivers in
respect of any such Pledged Equity Interests that is registered in the name of
the Collateral Agent or its nominee, in each case as shall be specified in such
request and be in form and substance satisfactory to the Collateral Agent.
Unless an Event of Default shall have occurred and be continuing and the
Collateral Agent shall have given the Pledgors written notice of its intent to
exercise its rights under this Section 7(a), the Collateral Agent will have no
right to take any action which the owner of a Pledged Partnership Interest or
Pledged LLC Interest is entitled to take with respect thereto, except the right
to receive payments and other distributions to the extent provided herein.
(a) If an Event of Default shall have occurred and be continuing and
the Collateral Agent shall have given the Pledgors written notice of its intent
to exercise its rights under this Section 7(b), the Collateral Agent will have
the right (but not the obligation) to the extent permitted by applicable law
(and, in the case of a Pledged Partnership Interest or Pledged LLC Interest, by
the relevant partnership agreement, limited liability company agreement,
operating agreement or other governing document) to vote, to give consents,
ratifications and waivers and to take any other action with respect to the
Pledged Equity Interests, with the same force and effect as if the Collateral
Agent were the absolute and sole owner thereof, and each Pledgor will take all
such action as the Collateral Agent may reasonably request from time to time to
give effect to such right.
Section 8. Right to Receive Distributions on Collateral. At any time
when an Event of Default shall have occurred and be continuing, the Collateral
Agent shall have the right to receive and to retain as Collateral hereunder all
dividends and other distributions made upon or with respect to the Collateral
and the Pledgor shall take all such action as may be necessary or as the
Collateral Agent may deem necessary or appropriate to give effect to such right.
All such dividends and other distributions which are received by the Pledgor at
any time when an Event of Default shall have occurred and be continuing shall be
received in trust for the benefit of the Collateral Agent and, if the Collateral
Agent so directs during the continuance of an Event of Default, shall be
segregated from other funds of the Pledgor and shall, forthwith upon demand by
the Collateral Agent during the continuance of an Event of Default, be paid over
to the Collateral Agent as Collateral in the same form as received (with any
necessary endorsement). After all Events of Default have been cured, the
Collateral Agent's right to retain dividends and other distributions under this
Section 8 shall cease and the Collateral Agent shall pay over to the Pledgor any
such Collateral retained by it during the continuance of an Event of Default.
Section 9. Remedies upon Event of Default. (a) If an Event of Default
shall have occurred and be continuing and the Collateral Agent shall have given
prior written notice to the Pledgors of its intent to exercise its remedies
under the Indenture and the Pledge Documents, the Collateral Agent may exercise
(or cause
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its agents to exercise) any or all of the remedies available to it (or to such
agents) under the Indenture and the Pledge Documents.
(b) Without limiting the generality of the foregoing, if an Event of
Default shall have occurred and be continuing, the Collateral Agent may exercise
on behalf of the Secured Parties all the rights of a secured party under the UCC
(whether or not in effect in the jurisdiction where such rights are exercised)
with respect to any Collateral and may sell or otherwise dispose of the
Collateral or any part thereof. Notice of any such sale or other disposition
shall be given to the relevant Pledgor(s) as required by Section 11.
Section 10. Application of Proceeds. If an Event of Default shall have
occurred and be continuing, the Collateral Agent shall apply the proceeds of any
sale or other disposition of all or any part of the Collateral in the order of
priorities set forth in Section 6.10 of the Indenture.
Section 11. Authority to Administer Collateral. Each Pledgor
irrevocably appoints the Collateral Agent its true and lawful attorney, with
full power of substitution, in the name of such Pledgor, any Secured Party or
otherwise, for the sole use and benefit of the Secured Parties, but at the
Company's expense, to the extent permitted by applicable law to exercise, at any
time and from time to time while an Event of Default shall have occurred and be
continuing, all or any of the following powers with respect to all or any of
such Pledgor's Collateral:
(a) to demand, xxx for, collect, receive and give acquittance
for any and all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto, and
(c) to sell or otherwise dispose of the same or the proceeds
or avails thereof, as fully and effectually as if the Collateral Agent
were the absolute owner thereof;
provided that, except in the case of Collateral that threatens to decline
speedily in value or is of a type customarily sold on a recognized market, the
Collateral Agent will give the relevant Pledgor at least ten days' prior written
notice of the time and place of any public sale thereof or the time after which
any private sale or other intended disposition thereof will be made. Any such
notice shall (i) contain the information specified in UCC Section 9-613, (ii) be
Authenticated (as defined in the UCC) and (iii) be sent to the parties required
to be notified pursuant to UCC Section 9-611(c); provided that, if the
Collateral Agent fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed on
it as a matter of law under the UCC.
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Section 12. Limitation on Duty in Respect of Collateral. Beyond the
exercise of reasonable care in the custody and preservation thereof, the
Collateral Agent will have no duty as to any Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
therefrom or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Collateral Agent will be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession or control if such Collateral is accorded treatment substantially
equal to that which it accords its own property, and will not be liable or
responsible for any loss or damage to any Collateral, or for any diminution in
the value thereof, by reason of any act or omission of any agent or bailee
selected by the Collateral Agent in good faith, except to the extent that such
liability arises from the Collateral Agent's gross negligence or willful
misconduct.
Section 13. General Provisions Concerning the Collateral Agent.
(a) In connection with its appointment and acting hereunder, the
Collateral Agent shall be entitled to all rights, privileges, protections,
immunities and indemnities provided to the Trustee (including in its capacity as
Collateral Agent) under the Indenture, and shall be required to perform duties
and exercise remedies or powers only to the extent required by Section 7.01 of
the Indenture. Without limiting the generality of the foregoing and except as
expressly set forth in the Indenture, (i) the Collateral Agent shall not be
subject to any fiduciary or other implied duties, regardless of whether an Event
of Default has occurred and is continuing, (ii) the Collateral Agent shall not
have any duty to take any discretionary action or exercise any discretionary
powers, and (iii) the Collateral Agent shall not have any duty to disclose, and
shall not be liable for any failure to disclose, any information relating to the
Company or its Subsidiaries that is communicated to or obtained by the entity
serving as Collateral Agent or any of its Affiliates in any capacity. The
Collateral Agent shall not be responsible for the existence, genuineness or
value of any Collateral or for the validity, perfection, priority or
enforceability of any Transaction Lien, whether impaired by operation of law or
by reason of any action or omission to act on its part under the Pledge
Documents. The Collateral Agent shall be deemed not to have knowledge of any
Event of Default except as provided in Section 7.02(10) of the Indenture.
(b) Agents and Related Parties. The Collateral Agent may perform any of
its duties and exercise any of its rights and powers through one or more agents
appointed by it. The Collateral Agent and any such agent may perform any of its
duties and exercise any of its rights and powers through its Affiliates. The
exculpatory provisions of this Section shall apply to any such agent and to the
Affiliates of the Collateral Agent and any such agent.
(c) Information as to Secured Obligations and Actions by Secured
Parties. For all purposes of the Pledge Documents, including determining the
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amounts of the Secured Obligations or whether any action has been taken under
any Secured Agreement, the Collateral Agent will be entitled to rely on
information from (i) its own records for information as to the Secured Parties,
their Secured Obligations and actions taken by them, (ii) any Secured Party (or
any trustee, agent or similar representative designated pursuant to Section
13(b) to supply such information) for information as to its Secured Obligations
and actions taken by it, to the extent that the Collateral Agent has not
obtained such information from its own records, and (iii) the Company, to the
extent that the Collateral Agent has not obtained information from the foregoing
sources.
(d) Refusal to Act. The Collateral Agent may refuse to act on any
notice, consent, direction or instruction from any Secured Parties or any agent,
trustee or similar representative thereof that, in the Collateral Agent's
opinion, (i) is contrary to law or the provisions of the Indenture or any Pledge
Document, (ii) may expose the Collateral Agent to liability (unless the
Collateral Agent shall have been indemnified, to its reasonable satisfaction,
for such liability by the Secured Parties that gave such notice, consent,
direction or instruction) or (iii) is unduly prejudicial to Secured Parties not
joining in such notice, consent, direction or instruction.
Section 14. Termination of Transaction Liens; Release of Collateral.
(a) The Transaction Liens granted by the Pledgors shall automatically
terminate and all rights to the Collateral shall revert to the applicable
Pledgor when all the Secured Obligations are satisfied in full. Subject to the
compliance by the Pledgor with the requirements of the Indenture relating to the
release of Collateral, the Collateral Agent will, at the Company's expense,
execute and deliver to the Pledgors such instruments, and take such other
actions, as the Pledgors shall reasonably request to evidence such termination.
(b) At any time before the Secured Obligations are satisfied in full,
the Pledgors may sell or otherwise transfer any Collateral if such sale or
transfer is permitted by the Indenture. Subject to the compliance by the Pledgor
with the requirements of the Indenture relating to the release of Collateral,
the Collateral Agent will, at the request of the applicable Pledgor and at such
Pledgor's expense, execute and deliver such instruments, and take such other
actions as such Pledgor shall reasonably request to release the Collateral
subject to such permitted sale or transfer from the Transaction Liens.
Section 15. Additional Pledgors. Any Subsidiary of the Company may
become a party hereto by signing and delivering to the Collateral Agent a Pledge
Agreement Supplement, whereupon such Subsidiary shall become a "Pledgor" as
defined herein.
Section 16. Additional Collateral. Any Pledgor may from time to time
add additional Equity Interests to the Collateral by signing and delivering to
the
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Collateral Agent a Pledge Agreement Supplement whereupon such Equity Interests
shall become "Collateral" as defined herein.
Section 17. Notices. Each notice, request or other communication given
to any party hereunder shall be given in accordance with Section 13.03 of the
Indenture, and in the case of any such notice, request or other communication to
a Pledgor other than the Company, shall be given to it in care of the Company.
Section 18. No Implied Waivers; Remedies Not Exclusive. No failure by
the Collateral Agent or any Secured Party to exercise, and no delay in
exercising and no course of dealing with respect to, any right or remedy under
any Pledge Document shall operate as a waiver thereof; nor shall any single or
partial exercise by the Collateral Agent or any Secured Party of any right or
remedy under the Indenture, any Pledge Document or any Secured Agreement
preclude any other or further exercise thereof or the exercise of any other
right or remedy. The rights and remedies specified in the Indenture, the Pledge
Documents and the Secured Agreements are cumulative and are not exclusive of any
other rights or remedies provided by law.
Section 19. Successors and Assigns. This Agreement is for the benefit
of the Collateral Agent and the Secured Parties. If all or any part of any
Secured Party's interest in any Secured Obligation is assigned or otherwise
transferred, the transferor's rights hereunder, to the extent applicable to the
obligation so transferred, shall be automatically transferred with such
obligation. This Agreement shall be binding on the Pledgors and their respective
successors and assigns.
Section 20. Amendments and Waivers. Neither this Agreement nor any
provision hereof may be waived, amended, modified or terminated except pursuant
to an agreement or agreements in writing entered into by the Collateral Agent
and in compliance with the requirements of the Indenture.
Section 21. Choice of Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, except as
otherwise required by mandatory provisions of law and except to the extent that
remedies provided by the laws of any jurisdiction other than the State of New
York are governed by the laws of such jurisdiction.
Section 22. Waiver of Jury Trial. EACH PARTY HERETO WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO ANY PLEDGE DOCUMENT OR ANY TRANSACTION CONTEMPLATED THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
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HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
Section 23. Severability. If any provision of any Pledge Document is
invalid or unenforceable in any jurisdiction, then, to the fullest extent
permitted by applicable law, (i) the other provisions of the Pledge Documents
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in favor of the Collateral Agent and the Secured Parties in
order to carry out the intentions of the parties thereto as nearly as may be
possible and (ii) the invalidity or unenforceability of such provision in such
jurisdiction shall not affect the validity or enforceability thereof in any
other jurisdiction.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
J. XXX XXXXXXXXX, S.A.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and
Treasurer
J. XXX XXXXXXXXX HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President, Finance and
Treasurer
J. XXX XXXXXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
OPI VESSELS, INC.
By: Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Treasurer
THE BANK OF NEW YORK, not in its
individual capacity but solely as
Collateral Agent
By: /s/ Xxxx X. Xxxxx
----------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
SCHEDULE 1
EQUITY INTERESTS IN SUBSIDIARIES AND AFFILIATES
OWNED BY ORIGINAL PLEDGORS
(AS OF THE ISSUE DATE)
JURISDICTION OF JURISDICTION OF NUMBER OF
ORGANIZATION ORGANIZATION OF PERCENTAGE SHARES OR
ISSUER OF ISSUER PLEDGOR PLEDGOR OWNED UNITS
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Hydro Marine Panama J. Xxx XxXxxxxxx, S.A. Panama 100% 100,000
Services, Inc.
J. Xxx XxXxxxxxx Delaware J. Xxx XxXxxxxxx, S.A. Panama 100% 100
Holdings, Inc.
J. Xxx XxXxxxxxx Panama J. Xxx XxXxxxxxx, S.A. Panama 100% 1,000
International, Inc.
J. Xxx XxXxxxxxx, Inc. Delaware J. Xxx XxXxxxxxx Delaware 100% 1,000
Holdings, Inc.
OPI Vessels, Inc. Delaware J. Xxx XxXxxxxxx Delaware 100% 20
Holdings, Inc.
J. Xxx XxXxxxxxx Panama J. Xxx XxXxxxxxx Panama 100% 100,000
Contractors, Inc. International, Inc.
J. Xxx XxXxxxxxx Middle Panama J. Xxx XxXxxxxxx Panama 100% 10,000
East, Inc. International, Inc.
J. Xxx XxXxxxxxx Cayman Islands OPI Vessels, Inc. Delaware 100% 100
International Vessels,
Ltd.
S-1-1
EXHIBIT A
TO PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
PLEDGE AGREEMENT SUPPLEMENT dated as of _______, ____, between [NAME OF
PLEDGOR] (the "PLEDGOR") and The Bank of New York, not in its individual
capacity but solely as Collateral Agent.
WHEREAS, J. Xxx XxXxxxxxx, S.A., the other Pledgors party thereto and
The Bank of New York, as Collateral Agent, are parties to a Pledge Agreement
dated as of December 9, 2003 (as heretofore amended and/or supplemented, the
"PLEDGE AGREEMENT"), under which J. Xxx XxXxxxxxx, S.A. secures certain of its
obligations (the "SECURED OBLIGATIONS") and the other Pledgors secure their
respective guarantees of the Secured Obligations;
[WHEREAS, [name of Pledgor] desires to become a party to the Pledge
Agreement as a Pledgor thereunder pursuant to Section 15 of the Pledge
Agreement; and] (1)
[WHEREAS, [name of Pledgor] is a party to the Pledge Agreement as a
Pledgor thereunder and desires to add additional Equity Interests to the
Collateral by signing and delivering to the Collateral Agent this Pledge
Agreement Supplement pursuant to Section 16 of the Pledge Agreement; and] (2)
WHEREAS, terms defined in the Pledge Agreement (or whose definitions
are incorporated by reference in Section 1 of the Pledge Agreement) and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
----------------------
(1) Include this recital if a new Pledgor is becoming a party to the
Pledge Agreement.
(2) Include this recital if an existing Pledgor is subjecting
additional Equity Interests to the Transaction Liens.
1. Grant of Transaction Liens. (a) In order to secure [its Secured
Guarantee] (3) [the Secured Obligations] (4), the Pledgor grants to the
Collateral Agent for the benefit of the Secured Parties a continuing security
interest in all the following property of the Pledgor, whether now owned or
existing or hereafter acquired or arising and regardless of where located (the
"NEW COLLATERAL"):
[describe property being added to the Collateral]
(b) The foregoing Transaction Liens are granted as security
only and shall not subject the Collateral Agent or any other Secured
Party to, or transfer or in any way affect or modify, any obligation or
liability of the Pledgor with respect to any of the New Collateral or
any transaction in connection therewith.
2. Delivery of Collateral. Concurrently with delivering this Pledge
Agreement Supplement to the Collateral Agent, the Pledgor is complying with the
provisions of Section 5 of the Pledge Agreement with respect to Equity
Interests, in each case if and to the extent included in the New Collateral at
such time.
3. [Party to Pledge Agreement. Upon delivering this Pledge Agreement
Supplement to the Collateral Agent, the Pledgor will become a party to the
Pledge Agreement and will thereafter have all the rights and obligations of a
Guarantor and a Pledgor thereunder and be bound by all the provisions thereof as
fully as if the Pledgor were one of the original parties thereto.] (5)
4. Representations and Warranties. (a) The Pledgor is duly organized,
validly existing and in good standing under the laws of [jurisdiction of
organization].
(b) The execution and delivery of this Pledge Agreement
Supplement by the Pledgor and the performance by it of its obligations
under the Pledge Agreement as supplemented hereby are within its
corporate or other powers, have been duly authorized by all necessary
corporate or other action, require no action by or in respect of, or
filing with, any governmental body, agency or official and do not
contravene, or constitute a default under, any provision of applicable
law or regulation or
-----------------
(3) Delete bracketed words if the Pledgor is the Company.
(4) Delete bracketed words if the Pledgor is a Guarantor.
(5) Delete Section 3 if the Pledgor is already a party to the Pledge
Agreement.
A-2
of its organizational documents, or of any agreement, judgment,
injunction, order, decree or other instrument binding upon it or result
in the creation or imposition of any Lien (except a Transaction Lien)
on any of its assets.
(c) The Pledge Agreement as supplemented hereby constitutes a
valid and binding agreement of the Pledgor, enforceable in accordance
with its terms, except as limited by (i) applicable bankruptcy,
insolvency, fraudulent conveyance or other similar laws affecting
creditors' rights generally and (ii) general principles of equity.
(d) Each of the representations and warranties set forth in
Sections 3 and 5 of the Pledge Agreement is true as applied to the
Pledgor and the New Collateral. For purposes of the foregoing sentence,
references in said Sections to a "Pledgor" shall be deemed to refer to
the Pledgor, references to Schedules to the Pledge Agreement shall be
deemed to refer to the corresponding Schedules to this Pledge Agreement
Supplement, references to "Collateral" shall be deemed to refer to the
New Collateral, and references to the "Issue Date" shall be deemed to
refer to the date on which the Pledgor signs and delivers this Pledge
Agreement Supplement.
5. Governing Law. This Pledge Agreement Supplement shall be construed
in accordance with and governed by the laws of the State of New York.
[Remainder of Page Intentionally Left Blank; Signature Page Follows]
A-3
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement Supplement to be duly executed by their respective authorized officers
as of the day and year first above written.
[NAME OF PLEDGOR]
By: ________________________________________
Name:
Title:
THE BANK OF NEW YORK, not in its individual
capacity but solely as Collateral Agent
By: ________________________________________
Name:
Title:
A-4
SCHEDULE 1
TO PLEDGE AGREEMENT
SUPPLEMENT
EQUITY INTERESTS IN SUBSIDIARIES
OWNED BY PLEDGOR
JURISDICTION OF
ORGANIZATION PERCENTAGE NUMBER OF
ISSUER OF ISSUER OWNED SHARES OR UNITS
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