PLEDGE AND SECURITY AGREEMENT
Exhibit
10.2
PLEDGE
AND SECURITY AGREEMENT (as amended, modified, restated and/or supplemented
from
time to time, this “Agreement”), dated as of July 20, 2007, made by each
of the undersigned pledgors (each a “Pledgor” and, together with any
other entity that becomes a pledgor hereunder pursuant to Section 25 hereof,
the
“Pledgors”) to DNB NOR BANK ASA, New York Branch, as collateral agent (in
such capacity, together with any successor collateral agent, the
“Pledgee”), for the benefit of the Secured Creditors (as defined below)
and by its execution of the acknowledgment attached hereto, NORDEA BANK FINLAND
PLC, New York Branch, as Deposit Account Bank (in such capacity, as the
“Deposit Account Bank”).
W
I T
N E S S E T H :
WHEREAS,
Genco Shipping & Trading Limited (the “Borrower”), the various
lenders from time to time party thereto (the “Lenders”) and DnB NOR Bank
ASA, New York Branch, as Administrative Agent and Collateral Agent (in such
capacity, together with any successor Administrative Agent, the
“Administrative Agent”), have entered into a Credit Agreement, dated as
of July 20, 2007 (as amended, modified, restated and/or supplemented from time
to time, the “Credit Agreement”), providing for the making of Loans to
the Borrower as contemplated therein (the Lenders holding from to time
outstanding Loans (and/or Loan Commitments), the Administrative Agent and each
Pledgee, in each of the aforementioned capacities, are herein called the
“Lender Creditors”);
WHEREAS,
pursuant to Section 1.2 hereof, each applicable Pledgor and the Deposit Account
Bank shall enter into, the Control Agreement attached hereto as Annex H on
the
Collateral Delivery Date;
WHEREAS,
the Borrower may at any time and from time to time after the date hereof enter
into, or guaranty the obligations of one or more other Pledgors or any of their
respective Subsidiaries under, one or more Interest Rate Protection Agreements
or Other Hedging Agreements with respect to the Borrower’s obligations under the
Credit Agreement with respect to the outstanding Loans and/or Commitments from
time to time with one or more Lenders or any affiliate thereof (each such Lender
or affiliate, even if the respective Lender subsequently ceases to be a Lender
under the Credit Agreement for any reason, together with such Lender's or
affiliate's successors and assigns, if any, collectively, the “Other
Creditors” and, together with the Lenders holding from to time outstanding
Loans (and/or Commitments), are herein called the “Secured
Creditors”);
WHEREAS,
it is a condition precedent to the making of the Loans to the Borrower under
the
Credit Agreement that each Pledgor shall have executed and delivered to the
Pledgee this Agreement; and
WHEREAS,
each Pledgor desires to enter into this Agreement in order to satisfy the
condition described in the preceding paragraph;
NOW,
THEREFORE, in consideration of the foregoing and other benefits accruing to
each
Pledgor, the receipt and sufficiency of which are hereby acknowledged, each
Pledgor hereby makes the following representations and warranties to the Pledgee
for the benefit of the Secured Creditors and hereby covenants and agrees with
the Pledgee for the benefit of the Secured Creditors as follows:
1. SECURITY
FOR OBLIGATIONS; ESTABLISHMENT OF OPERATING ACCOUNT.
1.1.
Security. This Agreement is made by each Pledgor for the
benefit of the Secured Creditors to secure:
(i)the
full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness (including, without limitation,
principal, premium, interest, fees and indemnities (including, without
limitation, all interest that accrues after the commencement of any case,
proceeding or other action relating to the bankruptcy, insolvency,
reorganization or similar proceeding of any Pledgor at the rate provided for
in
the respective documentation, whether or not a claim for post-petition interest
is allowed in any such proceeding)) of such Pledgor to the Lender Creditors
whether now existing or hereafter incurred under, arising out of, or in
connection with, the Credit Agreement and the other Credit Documents to which
such Pledgor is a party (including, in the case of each Pledgor that is a
Subsidiary Guarantor, all such obligations, liabilities and indebtedness of
such
Pledgor under the Subsidiaries Guaranty) and the due performance and compliance
by such Pledgor with all of the terms, conditions and agreements contained
in
the Credit Agreement and in such other Credit Documents (all such obligations,
liabilities and indebtedness under this clause (i), except to the extent
consisting of obligations, liabilities or indebtedness with respect to Interest
Rate Protection Agreements or Other Hedging Agreements, being herein
collectively called the “Credit Document Obligations”);
(ii)the
full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations, liabilities and indebtedness (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or other
action relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any Pledgor at the rate provided for in the respective
documentation, whether or not a claim for post-petition interest is allowed
in
any such proceeding) owing by such Pledgor to the Other Creditors under, or
with
respect to (including, in the case of each Pledgor that is a Subsidiary
Guarantor, all such obligations, liabilities and indebtedness of such Pledgor
under the Subsidiaries Guaranty), any Interest Rate Protection Agreement or
Other Hedging Agreement entered into in respect of the Borrower’s obligations
with respect to the outstanding Loans and/or Commitments from time to time,
whether such Interest Rate Protection Agreement or Other Hedging Agreement
is
now in existence or hereafter arising, and the due performance and compliance
by
such Pledgor with all of the terms, conditions and agreements contained therein
(all such obligations, liabilities and indebtedness described in this clause
(ii) being herein collectively called the “Other
Obligations”);
(iii)any
and all sums advanced by the
Pledgee in order to preserve the Collateral (as hereinafter defined) or preserve
its security interest in the Collateral;
(iv)in
the event of any proceeding for the
collection or enforcement of any indebtedness, obligations or liabilities of
such Pledgor referred to in clauses (i) and (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable expenses of
retaking, holding, preparing for sale or lease, selling or otherwise disposing
of or realizing on the Collateral, or of any exercise by the Pledgee of its
rights hereunder, together with reasonable attorneys’ fees and court costs;
and
(v)all
amounts paid by any Secured
Creditor as to which such Secured Creditor has the right to reimbursement under
Section 11 of this Agreement;
all
such
obligations, liabilities, sums and expenses set forth in clauses (i) through
(v)
of this Section 1.1 being herein collectively called the “Obligations,”
it being acknowledged and agreed that the “Obligations” shall include
extensions of credit of the types described above, whether outstanding on the
date of this Agreement or extended from time to time after the date of this
Agreement.
1.2. Operating
Accounts; Reserve Accounts. (a) The relevant Pledgor and the Pledgee
shall establish on or prior to the Collateral Delivery Date, in the name and
for
the benefit of the Pledgee, as agent for the Secured Creditors, the Operating
Accounts for purposes of this Agreement and the other relevant Credit Documents,
which Operating Accounts are or shall be maintained with the Deposit Account
Bank located at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx,
Xxx Xxxx 00000 (the “Deposit Account Bank”). Each relevant
Pledgor, the Pledgee and the Deposit Account Bank shall enter into, the Control
Agreement attached hereto as Annex H (the “Control Agreement”) on or
prior to the Collateral Delivery Date, which shall provide that the Operating
Accounts shall be under the control of the Pledgee, as agent for the Secured
Creditors, and the Pledgee shall have the right to direct withdrawals from
the
Operating Accounts and to exercise all rights with respect to all of the
Earnings Collateral (as defined below). All Earnings
Collateral delivered to, or held by or on behalf of, the Pledgee pursuant to
each of the Assignments of Earnings shall be held in the Operating Accounts
in
accordance with the provisions hereof and of the Control Agreement.
(b) Until
such time as the Collateral Agent shall have delivered a Notice of Exclusive
Control (as defined in the Control Agreement) (which the Collateral Agent agrees
to do only during the continuance of an Event of Default), the relevant Pledgor
may apply amounts in the Operating Accounts to the payment of operating expenses
and other expenditures permitted under the Credit Agreement of the Borrower
and
the other Pledgors. After the delivery of a Notice of Exclusive
Control (as defined in the Control Agreement), only the Collateral Agent shall
be entitled to withdraw funds from the Operating Accounts, to give any
instructions in respect of the Operating Accounts and any funds held therein
or
credited thereto or otherwise deal with the Operating Accounts.
2. DEFINITIONS.
(a) Unless otherwise defined herein, all capitalized terms used
herein and defined in the Credit Agreement shall be used herein as therein
defined. Reference to singular terms shall include the plural and
vice versa.
(b) The
following capitalized terms used herein shall have the definitions specified
below:
“Administrative
Agent” has the meaning set forth in the Recitals hereto.
“Adverse
Claim” has the meaning given such term in Section 8-102(a)(1) of the
UCC.
“Agreement”
has the meaning set forth in the first paragraph hereof.
“Borrower”
has the meaning set forth in the Recitals hereto.
“Certificated
Security” has the meaning given such term in Section 8-102(a)(4) of the
UCC.
“Clearing
Corporation” has the meaning given such term in Section 8-102(a)(5) of the
UCC.
“Collateral”
has the meaning set forth in Section 3.1 hereof.
“Control
Agreement” shall have the meaning provided in Section 1.2.
“Credit
Agreement” has the meaning set forth in the Recitals hereto.
“Credit
Document Obligations” has the meaning set forth in Section 1.1(i)
hereof.
“Deposit
Account Bank” shall have the meaning provided such term in Section 1.2
hereof.
“Earnings
Collateral” shall mean, collectively, all of the collateral granted, sold,
conveyed, assigned, transferred, mortgaged and pledged pursuant to, and in
accordance with, Section 1 of each Assignment of Earnings.
“Event
of Default” means any Event of Default under, and as defined in, the Credit
Agreement and any payment default under any Interest Rate Protection Agreement
or Other Hedging Agreement entered into in respect of the Borrower’s obligations
with respect to the outstanding Loans and/or Commitments from time to time,
after any applicable grace period.
“Indemnitees”
has the meaning set forth in Section 11 hereof.
“Lender
Creditors” has the meaning set forth in the Recitals hereto.
“Lenders”
has the meaning set forth in the Recitals hereto.
“Limited
Liability Company Assets” means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without
limitation, all limited liability company
capital
and interest in other limited liability companies), at any time owned or
represented by any Limited Liability Company Interest.
“Limited
Liability Company Interests” means the entire limited liability company
membership interest at any time owned by any Pledgor in any limited liability
company.
“Obligations”
has the meaning set forth in Section 1.1 hereof.
“Operating
Accounts” shall mean, collectively, the accounts listed on Annex I hereto
and all other accounts established at any time by any Pledgor and pledged in
favor of the Pledgee pursuant to the terms of this Agreement or the Credit
Agreement.
“Other
Creditors” has the meaning set forth in the Recitals hereto.
“Other
Obligations” has the meaning set forth in Section 1.1(ii)
hereof.
“Partnership
Assets” means all assets, whether tangible or intangible and whether real,
personal or mixed (including, without limitation, all partnership capital and
interest in other partnerships), at any time owned or represented by any
Partnership Interest.
“Partnership
Interest” shall mean the entire general partnership interest or limited
partnership interest at any time owned by any Pledgor in any general partnership
or limited partnership.
“Person”
means any individual, partnership, joint venture, firm, corporation,
association, limited liability company, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
“Pledgee”
has the meaning set forth in the first paragraph hereof.
“Pledgor”
has the meaning set forth in the first paragraph hereof.
“Proceeds”
has the meaning given such term in Section 9-102(64) of the UCC.
“Required
Secured Creditors” means (i) at any time when any Credit Document
Obligations are outstanding or any Commitments under the Credit Agreement exist,
the Required Lenders (or, to the extent provided in Section 15.12 of the Credit
Agreement, each of the Lenders), and (ii) at any time after all of the Credit
Document Obligations have been paid in full in cash and all Commitments under
the Credit Agreement have been terminated and if any Other Obligations are
outstanding, the holders of a majority of the Other Obligations.
“Secured
Creditors” has the meaning set forth in the Recitals hereto.
“Secured
Debt Agreements” means and includes this Agreement, the other Credit
Documents and the Interest Rate Protection Agreements and Other Hedging
Agreements entered into with any Other Creditors entered into in respect of
the
Borrower’s obligations with respect to the outstanding Loans and/or Commitments
from time to time.
“Securities
Act” means the Securities Act of 1933, as amended, as in effect from time to
time.
“Security”
and “Securities” has the meaning given such term in Section 8-102(a)(15)
of the UCC and shall in any event also include all Stock.
“Security
Entitlement” has the meaning given such term in Section 8-102(a)(17) of the
UCC.
“Stock”
means all of the issued and outstanding shares of capital stock of any
corporation at any time owned by any Pledgor.
“Subsidiary”
means, as to any Person, (i) any corporation more than 50% of whose stock of
any
class or classes having by the terms thereof ordinary voting power to elect
a
majority of the directors of such corporation (irrespective of whether or not
at
the time stock of any class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the
time
owned by such Person and/or one or more Subsidiaries of such Person and (ii)
any
partnership, limited liability company, association, joint venture or other
entity in which such Person and/or one or more Subsidiaries of such Person
has
more than a 50% equity interest at the time.
“Termination
Date” has the meaning set forth in Section 20 hereof.
“UCC”
means the Uniform Commercial Code as in effect in the State of New York
from time to time; provided that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect
in
the State of New York on the date hereof.
“Uncertificated
Security” has the meaning given such term in Section 8-102(a)(18) of the
UCC.
3. PLEDGE
OF STOCK, ACCOUNTS, ETC.
3.1 Pledge. To
secure the Obligations now or hereafter owed or to be performed by such Pledgor,
each Pledgor does hereby grant and pledge to the Pledgee for the benefit of
the
Secured Creditors, and does hereby create a continuing first priority security
interest in favor of the Pledgee for the benefit of the Secured Creditors in,
all of the right, title and interest in and to the following, whether now
existing or hereafter from time to time acquired (collectively, the
“Collateral”):
(a) the
Operating Account that will be established on the Collateral Delivery Date,
together with all of such Pledgor’s right, title and interest in and to all sums
of property (including cash equivalents and other investments) now or at any
time hereafter on deposit therein, credited thereto or payable thereon, and
all
instruments, documents and other writings evidencing the Operating
Accounts;
(b)
all Stock of any Subsidiary Guarantor owned by such Pledgor from time to time
and all options and warrants owned by such Pledgor from time to time to purchase
Stock of any such Subsidiary Guarantor;
(c) all
Limited Liability Company Interests in any Subsidiary Guarantor owned by such
Pledgor from time to time and all of its right, title and interest in each
limited liability company to which each such interest relates, whether now
existing or hereafter acquired, including, without limitation, to the fullest
extent permitted under the terms and provisions of the documents and agreements
governing such Limited Liability Company Interests and applicable
law:
(A) all
the capital thereof and its interest in all profits, losses, Limited Liability
Company Assets and other distributions to which such Pledgor shall at any time
be entitled in respect of such Limited Liability Company Interests;
(B) all
other payments due or to become due to such Pledgor in respect of Limited
Liability Company Interests, whether under any limited liability company
agreement or otherwise, whether as contractual obligations, damages, insurance
proceeds or otherwise;
(C) all
of such Pledgor’s claims, rights, powers, privileges, authority, options,
security interests, liens and remedies, if any, under any limited liability
company agreement or operating agreement, or at law or otherwise in respect
of such Limited Liability Company Interests;
(D) all
present and future claims, if any, of such Pledgor against any such limited
liability company for moneys loaned or advanced, for services rendered or
otherwise;
(E) all
of such Pledgor’s rights under any limited liability company agreement or
operating agreement or at law to exercise and enforce every right, power,
remedy, authority, option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate, cancel or modify
any limited liability company agreement or operating agreement, to execute
any
instruments and to take any and all other action on behalf of and in the name
of
such Pledgor in respect of such Limited Liability Company Interests and any
such
limited liability company, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or option or to give
or
receive any notice, consent, amendment, waiver or approval, together with full
power and authority to demand, receive, enforce, collect or receipt for any
of
the foregoing or for any Limited Liability Company Asset, to enforce or execute
any checks, or other instruments or orders, to file any claims and to take
any
action in connection with any of the foregoing; and
(F) all
other property hereafter delivered in substitution for or in addition to any
of
the foregoing, all certificates and instruments representing or evidencing
such
other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
(d) all
Partnership Interests in any Subsidiary Guarantor owned by such Pledgor from
time to time and all of its right, title and interest in each partnership to
which each such interest relates, whether now existing or hereafter acquired,
including, without limitation, to the fullest extent permitted under the terms
and provisions of the documents and agreements governing such Partnership
Interests and applicable law:
(A) all
the capital thereof and its interest in all profits, losses, Partnership Assets
and other distributions to which such Pledgor shall at any time be entitled
in
respect of such Partnership Interests;
(B) all
other payments due or to become due to such Pledgor in respect of such
Partnership Interests, whether under any partnership agreement or otherwise,
whether as contractual obligations, damages, insurance proceeds or
otherwise;
(C) all
of its claims, rights, powers, privileges, authority, options, security
interests, liens and remedies, if any, under any partnership agreement or
operating agreement, or at law or otherwise in respect of such Partnership
Interests;
(D) all
present and future claims, if any, of such Pledgor against any such partnership
for moneys loaned or advanced, for services rendered or otherwise;
(E) all
of such Pledgor’s rights under any partnership agreement or operating agreement
or at law to exercise and enforce every right, power, remedy, authority, option
and privilege of such Pledgor relating to such Partnership Interests, including
any power to terminate, cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all other action
on
behalf of and in the name of any of such Pledgor in respect of such Partnership
Interests and any such partnership, to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option or
to
give or receive any notice, consent, amendment, waiver or approval, together
with full power and authority to demand, receive, enforce, collect or receipt
for any of the foregoing or for any Partnership Asset, to enforce or execute
any
checks, or other instruments or orders, to file any claims and to take any
action in connection with any of the foregoing; and
(F) all
other property hereafter delivered in substitution for or in addition to any
of
the foregoing, all certificates and instruments representing or evidencing
such
other property and all cash, securities, interest, dividends, rights and other
property at any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
and
(e) all
Proceeds of any and all of the foregoing.
3.2. Procedures.
(a) To the extent that any Pledgor at any time or from time to time
owns, acquires or obtains any right, title or interest in any Collateral, such
Collateral shall automatically (and without the taking of any action by such
Pledgor) be pledged pursuant to Section 3.1 of this Agreement and, in addition
thereto, such Pledgor shall (to the extent provided below) take, or, in the
case
of Section 3.2(a)(v), authorize the Pledgee to take, the following actions
as
set forth below (as promptly as practicable and, in any event, within 30 days
after it obtains such Collateral) for the benefit of the Pledgee and the Secured
Creditors:
(i)with
respect to a Certificated Security
(other than a Certificated Security credited on the books of a Clearing
Corporation), such Pledgor shall deliver such Certificated Security to the
Pledgee with powers executed in blank;
(ii)with
respect to an Uncertificated
Security (other than an Uncertificated Security credited on the books of a
Clearing Corporation), such Pledgor shall cause the issuer of such
Uncertificated Security (or, in the case of an issuer that is not a Subsidiary
of such Pledgor, will use reasonable efforts to cause such issuer) to duly
authorize and execute, and deliver to the Pledgee, an agreement for the benefit
of the Pledgee and the other Secured Creditors substantially in the form of
Annex G hereto (appropriately completed to the reasonable satisfaction of the
Pledgee and with such modifications, if any, as shall be reasonably satisfactory
to the Pledgee) pursuant to which such issuer agrees to comply with any and
all
instructions originated by the Pledgee without further consent by the registered
owner and not to comply with instructions regarding such Uncertificated Security
originated by any other Person other than a court of competent
jurisdiction;
(iii)with
respect to a Certificated
Security, Uncertificated Security, Partnership Interest or Limited Liability
Company Interest credited on the books of a Clearing Corporation (including
a
Federal Reserve Bank, Participants Trust Company or The Depository Trust
Company), such Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply in all material respects with
the applicable rules of such Clearing Corporation and (ii) to perfect the
security interest of the Pledgee under applicable law (including, in any event,
under Sections 9-314(a), (b) and (c), 9-106 and 8-106(d) of the
UCC). Such Pledgor further agrees to take such actions as the Pledgee
deems reasonably necessary to effect the foregoing;
(iv)with
respect to a Partnership Interest
or a Limited Liability Company Interest (other than a Partnership Interest
or
Limited Liability Interest credited on the books of a Clearing Corporation),
(1)
if such Partnership Interest or Limited Liability Company Interest is
represented by a certificate and is a Security for purposes of the UCC, the
procedure set forth in Section 3.2(a)(i) hereof, and (2) if such Partnership
Interest or Limited Liability Company Interest is not represented by a
certificate or is not a Security for purposes of the UCC, the procedure set
forth in Section 3.2(a)(ii) hereof; and
(v)with
respect to cash proceeds from any
of the Collateral described in Section 3.1 hereof which are not released to
such
Pledgor in accordance with Section 6 hereof, (i) establishment by the Pledgee
of
a cash account in the name of such Pledgor over which the
Pledgee
shall have exclusive and absolute control and dominion (and no withdrawals
or
transfers may be made therefrom by any Person except with the prior written
consent of the Pledgee) and (ii) deposit of such cash in such cash
account.
(b)In
addition to the actions required to
be taken pursuant to Section 3.2(a) hereof, each Pledgor shall take the
following additional actions with respect to the Collateral:
(i)with
respect to all Collateral of such
Pledgor whereby or with respect to which the Pledgee may obtain “control”
thereof within the meaning of Section 8-106 of the UCC (or under any
provision
of the UCC as same may be amended or supplemented from time to time, or under
the laws of any relevant State other than the State of New York), such
Pledgor shall take all actions as may be reasonably requested from time to
time
by the Pledgee so that “control” of such Collateral is obtained and at
all times held by the Pledgee; and
(ii)each
Pledgor shall from time to time
cause appropriate financing statements (on Form UCC-1 or other appropriate
form)
under the Uniform Commercial Code as in effect in the various relevant states,
covering all Collateral hereunder (with the form of such financing statements
to
be satisfactory to the Pledgee), to be filed in the relevant filing offices
so
that at all times the Pledgee has a security interest in all Collateral which
is
perfected by the filing of such financing statements (in each case to the
maximum extent perfection by filing may be obtained under the laws of the
relevant states, including, without limitation, Section 9-312(a) of the
UCC).
3.3. Subsequently
Acquired Collateral. If any Pledgor shall acquire (by purchase,
stock dividend or similar distribution or otherwise) any additional Collateral
at any time or from time to time after the date hereof, such Collateral shall
automatically (and without any further action being required to be taken) be
subject to the pledge and security interests created pursuant to Section 3.1
hereof and, furthermore, such Pledgor will promptly thereafter take (or cause
to
be taken) all action with respect to such Collateral in accordance with the
procedures set forth in Section 3.2 hereof, and will promptly thereafter deliver
to the Pledgee (i) a certificate executed by a principal executive officer
of
such Pledgor describing such Collateral and certifying that the same has been
duly pledged in favor of the Pledgee (for the benefit of the Secured Creditors)
hereunder and (ii) supplements to Annexes A through F hereto as are reasonably
necessary to cause such annexes to be complete and accurate at such
time.
3.4. Transfer
Taxes. Each pledge of Collateral under Section 3.1 or Section 3.3
hereof shall be accompanied by any transfer tax stamps required in connection
with the pledge of such Collateral.
3.5. Certain
Representations and Warranties Regarding the Collateral. Each
Pledgor represents and warrants that on the date hereof: (i) the jurisdiction
of
organization of such Pledgor, and such Pledgor’s organizational identification
number, is listed on Annex A hereto; (ii) each Subsidiary of such Pledgor that
is a Subsidiary Guarantor is listed in Annex B hereto; (iii) the Stock (and
any warrants or options to purchase Stock) of any Subsidiary Guarantor held
by
such Pledgor consists of the number and type of shares of the stock (or warrants
or options to purchase any stock)
of
the
corporations as described in Annex C hereto; (iv) such Stock constitutes that
percentage of the issued and outstanding capital stock of the respective
Subsidiary Guarantors as is set forth in Annex C hereto; (v) the Limited
Liability Company Interests in any and all Subsidiary Guarantors held by such
Pledgor consist of the number and type of interests of the respective Subsidiary
Guarantors described in Annex D hereto; (vi) each such Limited Liability Company
Interest constitutes that percentage of the issued and outstanding equity
interest of the respective Subsidiary Guarantors as set forth in Annex D hereto;
(vii) the Partnership Interests held by such Pledgor in any and all Subsidiary
Guarantors consist of the number and type of interests of the respective
Subsidiary Guarantors described in Annex E hereto; (viii) each such Partnership
Interest constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex E hereto; (ix) such Pledgor
has complied with the respective procedure set forth in Section 3.2(a)
hereof with respect to each item of Collateral described in Annexes B through
E
hereto; and (xi) on the date hereof, such Pledgor owns no other Stock, Limited
Liability Company Interests or Partnership Interests of, in each case, any
Subsidiary Guarantor.
4. APPOINTMENT
OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the extent necessary to
enable the Pledgee to perfect its security interest in any of the Collateral
or
to exercise any of its remedies hereunder, the Pledgee shall have the right
to
appoint one or more sub-agents for the purpose of retaining physical possession
of the Collateral, which may be held (in the discretion of the Pledgee) in
the
name of the relevant Pledgor, endorsed or assigned in blank or in favor of
the
Pledgee or any nominee or nominees of the Pledgee or a sub-agent appointed
by
the Pledgee.
5. VOTING,
ETC., WHILE NO EVENT OF DEFAULT. Unless and until there shall have
occurred and be continuing an Event of Default, each Pledgor shall be entitled
to exercise any and all voting and other consensual rights pertaining to the
Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; provided that, in each case, no vote shall be cast or
any consent, waiver or ratification given or any action taken or omitted to
be
taken which would violate or be inconsistent with any of the terms of any
Secured Debt Agreement, or which could reasonably be expected to have the effect
of impairing the value of the Collateral or any part thereof or the position
or
interests of the Pledgee or any other Secured Creditor in the Collateral unless
expressly permitted by the terms of the Secured Debt Agreements. All
such rights of each Pledgor to vote and to give consents, waivers and
ratifications shall cease in case an Event of Default has occurred and is
continuing, and Section 7 hereof shall become applicable.
6. DIVIDENDS
AND OTHER DISTRIBUTIONS. Unless and until there shall have occurred
and be continuing an Event of Default, all cash dividends, cash distributions,
cash Proceeds and other cash amounts payable in respect of the Collateral shall
be paid to the Pledgors. The Pledgee shall be entitled to receive
directly, and to retain as part of the Collateral:
(i)all
other or additional stock, notes,
limited liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash dividends
other than as set forth above in the first sentence of this Section 6) paid
or
distributed by way of dividend or otherwise in respect of the
Collateral;
(ii)all
other or additional stock, notes,
limited liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash) paid or
distributed in respect of the Collateral by way of stock-split, spin-off,
split-up, reclassification, combination of shares or similar rearrangement;
and
(iii)all
other or additional stock, notes,
limited liability company interests, partnership interests, instruments or
other securities or property (including, but not limited to, cash) which may
be
paid in respect of the Collateral by reason of any consolidation, merger,
exchange of stock, conveyance of assets, liquidation or similar corporate or
other reorganization.
All
dividends, distributions or other payments which are received by any Pledgor
contrary to the provisions of this Section 6 and Section 7 hereof shall be
received in trust for the benefit of the Pledgee, shall be segregated from
other
property or funds of such Pledgor and shall be forthwith paid over and/or
delivered to the Pledgee as Collateral in the same form as so received (with
any
necessary endorsement).
7. REMEDIES
IN CASE OF AN EVENT OF DEFAULT. If there shall have occurred and be
continuing an Event of Default, then and in every such case, the Pledgee shall
be entitled to exercise all of the rights, powers and remedies (whether vested
in it by this Agreement, any other Secured Debt Agreement or by law) for the
protection and enforcement of its rights in respect of the Collateral, and
the
Pledgee shall be entitled to exercise all the rights and remedies of a secured
party under the Uniform Commercial Code as in effect in any relevant
jurisdiction and also shall be entitled, without limitation, to exercise the
following rights, which each Pledgor hereby agrees to be commercially
reasonable:
(i)to
receive all amounts payable in
respect of the Collateral otherwise payable under Section 6 hereof to the
Pledgors;
(ii)to
transfer all or any part of the
Collateral into the Pledgee’s name or the name of its nominee or
nominees;
(iii)to
vote all or any part of the
Collateral (whether or not transferred into the name of the Pledgee) and give
all consents, waivers and ratifications in respect of the Collateral and
otherwise act with respect thereto as though it were the outright owner thereof
(each Pledgor hereby irrevocably constituting and appointing the Pledgee the
proxy and attorney-in-fact of such Pledgor, with full power of substitution
to
do so);
(iv)at
any time and from time to time to
sell, assign and deliver, or grant options to purchase, all or any part of
the
Collateral, or any interest therein, at any public or private sale, without
demand of performance, advertisement or notice of intention to sell or of the
time or place of sale or adjournment thereof or to redeem or otherwise (all
of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of credit
risk, and for such price or prices and on such terms as the Pledgee in its
absolute discretion may determine, provided that at least 10 days’
written notice of the time and place of any such sale shall be given
to the
Pledgors. The
Pledgee
shall not be obligated to make any such sale of Collateral regardless of whether
any such notice of sale has theretofore been given. Each Pledgor
hereby waives and releases to the fullest extent permitted by law any right
or
equity of redemption with respect to the Collateral, whether before or after
sale hereunder, and all rights, if any, of marshalling the Collateral and any
other security for the Obligations or otherwise. At any such sale,
unless prohibited by applicable law, the Pledgee on behalf of the Secured
Creditors may bid for and purchase all or any part of the Collateral so sold
free from any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or realize upon
any or all of the Collateral or for any delay in so doing nor shall any of
them
be under any obligation to take any action whatsoever with regard
thereto;
(v)to
set-off any and all Collateral
against any and all Obligations; and
(vi)apply
any monies constituting
collateral or proceeds thereof (including, without limitation, amounts on
deposit in the Operating Accounts) in accordance with the provisions of
Section
9.
8. REMEDIES,
ETC., CUMULATIVE. Each and every right, power and remedy of the
Pledgee provided for in this Agreement or in any other Secured Debt Agreement,
or now or hereafter existing at law or in equity or by statute shall be
cumulative and concurrent and shall be in addition to every other such right,
power or remedy. The exercise or beginning of the exercise by the Pledgee or
any
other Secured Creditor of any one or more of the rights, powers or remedies
provided for in this Agreement or any other Secured Debt Agreement or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by the Pledgee or any other Secured
Creditor of all such other rights, powers or remedies, and no failure or delay
on the part of the Pledgee or any other Secured Creditor to exercise any such
right, power or remedy shall operate as a waiver thereof. No notice
to or demand on any Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of
any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The
Secured Creditors agree that this Agreement may be enforced only by the action
of the Pledgee, in each case acting upon the instructions of the Required
Lenders (or, after the date on which all Credit Document Obligations have been
paid in full, the holders of at least a majority of the outstanding Other
Obligations) and that no other Secured Creditor shall have any right
individually to seek to enforce or to enforce this Agreement or to realize
upon
the security to be granted hereby, it being understood and agreed that such
rights and remedies may be exercised by the Pledgee for the benefit of the
Secured Creditors upon the terms of this Agreement.
9. APPLICATION
OF PROCEEDS. (a) All monies collected by the Pledgee upon
any sale or other disposition of the Collateral of each Pledgor and any other
collateral under any other Security Document (including, without limitation,
the
Vessel Mortgage, Assignments of Earnings, Assignments of Insurance, together
with all other monies received by the Pledgee hereunder and under any other
Security Document (except to the extent released in accordance with the
applicable provisions of this Agreement or any other Credit Document), shall
be
applied to the payment of the Obligations as follows:
(i) first,
to the payment of all amounts owing the Pledgee of the type described in clauses
(iii) and (iv) of Section 1.1;
(ii) second,
to the extent proceeds remain after the application pursuant to the preceding
clause (i), an amount equal to the outstanding Primary Obligations (as defined
below) constituting Credit Document Obligations shall be paid to the Lenders
as
provided in Section 9(d) hereof, with each Lender receiving an amount equal
to
such outstanding Primary Obligations constituting Credit Document Obligations
or, if the proceeds are insufficient to pay in full all such Primary Obligations
constituting Credit Document Obligations, its Pro Rata Share (as defined below)
of the amount remaining to be distributed;
(iii) third,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) and (ii), an amount equal to the outstanding Primary Obligations
constituting Other Obligations shall be paid to the Other Creditors as provided
in Section 9(d) hereof, with each Other Creditor receiving an amount equal
to
such outstanding Primary Obligations constituting Other Obligations or, if
the
proceeds are insufficient to pay in full all such Primary Obligations
constituting Other Obligations, its Pro Rata Share of the amount remaining
to be
distributed;
(iv) fourth,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) through (iii), inclusive, an amount equal to the outstanding
Secondary Obligations shall be paid to the Secured Creditors as provided in
Section 9(d) hereof, with each Secured Creditor receiving an amount equal to
its
outstanding Secondary Obligations or, if the proceeds are insufficient to pay
in
full all such Secondary Obligations, its Pro Rata Share of the amount remaining
to be distributed; and
(v) fifth,
to the extent proceeds remain after the application pursuant to the preceding
clauses (i) through (iv), inclusive, and following the termination of this
Agreement pursuant to Section 20 hereof, to the relevant Pledgor or to whomever
may be lawfully entitled to receive such surplus.
(b) For
purposes of this Agreement, (x) “Pro Rata Share” shall mean, when
calculating a Secured Creditor's portion of any distribution or amount, that
amount (expressed as a percentage) equal to a fraction the numerator of which
is
the then unpaid amount of such Secured Creditor's Primary Obligations or
Secondary Obligations, as the case may be, and the denominator of which is
the
then outstanding amount of all Primary Obligations or Secondary Obligations,
as
the case may be, (y) “Primary Obligations” shall mean (i) in the case of
the Credit Document Obligations, all principal of, and interest on, all Loans
and all fees, costs and expenses incurred under the Credit Agreement with
respect thereto and (ii) in the case of the Other Obligations, all amounts
due
under such Interest Rate Protection Agreements and Other Hedging Agreements
(other than indemnities, fees (including, without limitation, attorneys' fees)
and similar obligations and liabilities) and (z) “Secondary Obligations” shall
mean all Obligations other than Primary Obligations.
(c) When
payments to Secured Creditors are based upon their respective Pro Rata Shares,
the amounts received by such Secured Creditors hereunder shall be applied (for
purposes of making determinations under this Section 9 only) (i) first, to
their
Primary Obligations and (ii) second, to their Secondary
Obligations. If any payment to any Secured Creditor of its Pro Rata
Share of any distribution would result in overpayment to such Secured Creditor,
such excess amount shall instead be distributed in respect of the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of the other Secured
Creditors, with each Secured Creditor whose Primary Obligations or Secondary
Obligations, as the case may be, have not been paid in full to receive an amount
equal to such excess amount multiplied by a fraction the numerator of which
is
the unpaid Primary Obligations or Secondary Obligations, as the case may be,
of
such Secured Creditor and the denominator of which is the unpaid Primary
Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) All
payments required to be made hereunder shall be made (x) if to the Lender
Creditors, to the Administrative Agent under the Credit Agreement for the
account of the Lender Creditors, and (y) if to the Other Creditors, to the
trustee, paying agent or other similar representative (each a
“Representative”) for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For
purposes of applying payments received in accordance with this Section 9, the
Pledgee shall be entitled to rely upon (i) the Administrative Agent under the
Credit Agreement and (ii) the Representative for the Other Creditors or, in
the
absence of such a Representative, upon the Other Creditors for a determination
(which the Administrative Agent, each Representative for any Other Creditors
and
the Secured Creditors agree (or shall agree) to provide upon request of the
Pledgee) of the outstanding Primary Obligations and Secondary Obligations owed
to the Lender Creditors or the Other Creditors, as the case may
be. Unless it has actual knowledge (including by way of written
notice from a Lender Creditor or an Other Creditor) to the contrary, the
Administrative Agent and each Representative, in furnishing information pursuant
to the preceding sentence, and the Pledgee, in acting hereunder, shall be
entitled to assume that no Secondary Obligations are outstanding. Unless it
has
actual knowledge (including by way of written notice from an Other Creditor)
to
the contrary, the Pledgee, in acting hereunder, shall be entitled to assume
that
no Interest Rate Protection Agreements are in existence.
(f) It
is understood and agreed that each Pledgor shall remain jointly and severally
liable to the extent of any deficiency between the amount of the proceeds of
the
Collateral pledged by it hereunder and the aggregate amount of the Obligations
of such Pledgor.
10. PURCHASERS
OF COLLATERAL. Upon any sale of the Collateral by the Pledgee
hereunder (whether by virtue of the power of sale herein granted, pursuant
to
judicial process or otherwise), the receipt of the Pledgee or the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of
the
Collateral so sold, and such purchaser or purchasers shall not be obligated
to
see to the application of any part of the purchase money paid over to the
Pledgee or such officer or be answerable in any way for the misapplication
or
nonapplication thereof.
11. INDEMNITY. Each
Pledgor jointly and severally agrees (i) to indemnify and hold harmless the
Pledgee and each other Secured Creditor and their respective successors,
assigns, employees, agents and affiliates (individually an “Indemnitee,”
and collectively the “Indemnitees”) from and against any and all claims,
demands, losses, judgments and liabilities (including liabilities for penalties)
of whatsoever kind or nature, and (ii) to reimburse each Indemnitee for all
reasonable costs and expenses, including reasonable attorneys’ fees, in each
case growing out of or resulting from this Agreement or the exercise by any
Indemnitee of any right or remedy granted to it hereunder or under any other
Secured Debt Agreement (but excluding any claims, demands, losses, judgments
and
liabilities or expenses to the extent incurred by reason of gross negligence
or
willful misconduct of such Indemnitee (as determined by a court of competent
jurisdiction in a final and non-appealable decision)). In no event
shall the Pledgee be liable, in the absence of gross negligence or willful
misconduct on its part, for any matter or thing in connection with this
Agreement other than to account for monies actually received by it in accordance
with the terms hereof. If and to the extent that the obligations of
any Pledgor under this Section 11 are unenforceable for any reason,
such Pledgor hereby agrees to make the maximum contribution to the payment
and
satisfaction of such obligations which is permissible under applicable
law.
12. PLEDGEE
NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a) Nothing herein
shall be construed to make the Pledgee or any other Secured Creditor liable
as a
member of any limited liability company or as a partner of any partnership
and
neither the Pledgee nor any other Secured Creditor by virtue of this Agreement
or otherwise (except as referred to in the following sentence) shall have any
of
the duties, obligations or liabilities of a member of any limited liability
company or partnership. The parties hereto expressly agree that,
unless the Pledgee shall become the absolute owner of Collateral consisting
of a
Limited Liability Company Interest or Partnership Interest pursuant hereto,
this
Agreement shall not be construed as creating a partnership or joint venture
among the Pledgee, any other Secured Creditor, any Pledgor and/or any other
Person.
(b) Except
as provided in the last sentence of paragraph (a) of this Section 12, the
Pledgee, by accepting this Agreement, did not intend to become a member of
any
limited liability company or a partner of any partnership or otherwise be deemed
to be a co-venturer with respect to any Pledgor, any limited liability company,
partnership and/or any other Person either before or after an Event of Default
shall have occurred. The Pledgee shall have only those powers set
forth herein and the Secured Creditors shall assume none of the duties,
obligations or liabilities of a member of any limited liability company or
as a
partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The
Pledgee and the other Secured Creditors shall not be obligated to perform or
discharge any obligation of any Pledgor as a result of the pledge hereby
effected.
(d) The
acceptance by the Pledgee of this Agreement, with all the rights, powers,
privileges and authority so created, shall not at any time or in any event
obligate the Pledgee or any other Secured Creditor to appear in or defend any
action or proceeding relating to the Collateral to which it is not a party,
or
to take any action hereunder or thereunder, or to expend any money or incur
any
expenses or perform or discharge any obligation, duty or liability under the
Collateral.
13. FURTHER
ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor’s own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents
in
such offices as the Pledgee may deem reasonably necessary and wherever required
by law in order to perfect and preserve the Pledgee’s security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements
(including, without limitation, ‘all assets’ financing statements) and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) Each
Pledgor hereby appoints the Pledgee such Pledgor’s attorney-in-fact, with full
authority in the place and stead of such Pledgor and in the name of such Pledgor
or otherwise, to act from time to time solely after the occurrence and during
the continuance of an Event of Default in the Pledgee’s reasonable discretion to
take any action and to execute any instrument which the Pledgee may deem
reasonably necessary or advisable to accomplish the purposes of this
Agreement.
14. THE
PLEDGEE AS AGENT. The Pledgee will hold in accordance with this
Agreement all items of the Collateral at any time received under this Agreement.
It is expressly understood and agreed by each Secured Creditor that by accepting
the benefits of this Agreement each such Secured Creditor acknowledges and
agrees that the obligations of the Pledgee as holder of the Collateral and
interests therein and with respect to the disposition thereof, and otherwise
under this Agreement, are only those expressly set forth in this Agreement
and
in Section 12 of the Credit Agreement. The Pledgee shall act
hereunder on the terms and conditions set forth herein and in Section 13 of
the
Credit Agreement.
15.
TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Secured Debt
Agreements).
16. REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE PLEDGORS. Each Pledgor represents,
warrants and covenants that:
(i)it is the legal, beneficial
and record owner of, and has good and marketable title to, all Collateral
pledged by such Pledgor hereunder and that it has sufficient interest in all
Collateral pledged by such Pledgor hereunder in which a security interest is
purported to be created hereunder for such security interest to attach (subject,
in each case, to no pledge, lien, mortgage, hypothecation, security interest,
charge, option, Adverse Claim or other encumbrance whatsoever, except the liens
and security interests created by this Agreement and Permitted
Liens);
(ii)it
has the corporate, limited
partnership or limited liability company power and authority, as the case may
be, to pledge all the Collateral pledged by it pursuant to this
Agreement;
(iii)this
Agreement has been duly
authorized, executed and delivered by such Pledgor and constitutes a legal,
valid and binding obligation of such Pledgor enforceable against such Pledgor
in
accordance with its terms, except to the extent that the enforceability
hereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and
by equitable principles (regardless of whether enforcement is sought in equity
or at law);
(iv)except
to the extent already obtained
or made, or, in the case of any filings or recordings of the Security Documents
(other than the Vessel Mortgages) executed on or before the Initial Borrowing
Date, to be made within 10 days of the Initial Borrowing Date, no consent of
any
other party (including, without limitation, any stockholder, partner, member
or
creditor of such Pledgor or any of its Subsidiaries) and no consent, license,
permit, approval or authorization of, exemption by, notice or report to, or
registration, filing or declaration with, any governmental authority is required
to be obtained by such Pledgor in connection with (a) the execution, delivery
or
performance by such Pledgor of this Agreement, (b) the legality, validity,
binding effect or enforceability of this Agreement, (c) the perfection or
enforceability of the Pledgee’s security interest in the Collateral pledged by
such Pledgor hereunder or (d) except for compliance with or as may be required
by applicable securities laws, the exercise by the Pledgee of any of its rights
or remedies provided herein;
(v)the
execution, delivery and performance
of this Agreement will not violate any provision of any applicable law or
regulation or of any order, judgment, writ, award or decree of any court,
arbitrator or governmental authority, U.S. or non-U.S., applicable to such
Pledgor, or of the certificate or articles of incorporation, certificate of
formation, operating agreement, limited liability company agreement, partnership
agreement or by-laws of such Pledgor, as applicable, or of any securities issued
by such Pledgor or any of its Subsidiaries, or of any mortgage, deed of trust,
indenture, lease, loan agreement, credit agreement or other material contract,
agreement or instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such Pledgor or
any
of its Subsidiaries or upon any of their respective assets and will not result
in the creation or imposition of (or the obligation to create or impose) any
lien or encumbrance on any of the assets of such Pledgor or any of its
Subsidiaries which are Credit Parties, except as contemplated by this Agreement
or the Credit Agreement;
(vi)all
of the Collateral has been duly and
validly issued and acquired, is fully paid and non-assessable and is subject
to
no options to purchase or similar rights;
(vii)the
pledge and collateral assignment
to, and possession by, the Pledgee of the Collateral pledged by such Pledgor
hereunder consisting of Certificated Securities pursuant to this Agreement
creates a valid and perfected first priority security interest in such
Certificated
Securities, and the proceeds thereof, subject to no prior Lien or to any
agreement purporting to grant to any third party a Lien on the property or
assets of such Pledgor which would include the Certificated Securities, except
for Permitted Liens, and the Pledgee is entitled to all the rights, priorities
and benefits afforded by the UCC or other relevant law as enacted in any
relevant jurisdiction to perfect security interests in respect of such
Collateral; and;
(viii)“control”
(as
defined in Section
8-106 of the UCC) has been obtained by the Pledgee over all Collateral pledged
by such Pledgor hereunder consisting of Stock with respect to which such
“control” may be obtained pursuant to Section 8-106 of the UCC, and
“control” (as defined in Section 9-104 of the UCC) has been obtained
by
the Pledgee over all Operating Accounts with respect to which such
“control” may be obtained pursuant to Section 9-104 of the
UCC.
(b) Each
Pledgor covenants and agrees that it will defend the Pledgee’s right, title and
security interest in and to the Collateral and the proceeds thereof against
the
claims and demands of all persons whomsoever; and each Pledgor covenants and
agrees that it will have like title to and right to pledge any other property
at
any time hereafter pledged to the Pledgee as Collateral hereunder and will
likewise defend the right thereto and security interest therein of the Pledgee
and the Secured Creditors.
17.
JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE; RECORDS. The
jurisdiction of organization of each Pledgor is specified in Annex A
hereto. The chief executive office of each Pledgor is located at the
address specified in Annex F hereto. Each Pledgor will not change the
jurisdiction of its organization or move its chief executive office except
to
such new jurisdiction or location as such Pledgor may establish in accordance
with the last sentence of this Section 17. The originals of all
documents in the possession of such Pledgor evidencing all Collateral, including
but not limited to all Limited Liability Company Interests and Partnership
Interests, and the only original books of account and records of such Pledgor
relating thereto are, and will continue to be, kept at such chief executive
office as specified in Annex F hereto, or at such new locations as such Pledgor
may establish in accordance with the last sentence of this Section
17. All Limited Liability Company Interests and Partnership Interests
are, and will continue to be, maintained at, and controlled and directed
(including, without limitation, for general accounting purposes) from, such
chief executive office as specified in Annex F hereto, or such new locations
as
such Pledgor may establish in accordance with the last sentence of this Section
17. No Pledgor shall establish a new jurisdiction of organization or
a new location for such chief executive offices until (i) it shall have given
to
the Pledgee not less than 15 days’ prior written notice of its intention so to
do, providing clear details of such new jurisdiction of organization or new
location, as the case may be, and providing such other information in connection
therewith as the Pledgee may reasonably request, and (ii) with respect to such
new jurisdiction of organization or new location, as the case may be, it shall
have taken all action, satisfactory to the Pledgee (and, to the extent
applicable, in accordance with Section 3.2 hereof), to maintain the security
interest of the Pledgee in the Collateral intended to be granted hereby at
all
times fully perfected and in full force and effect. Promptly after
establishing a new jurisdiction of organization or new location for such chief
executive offices in accordance with the immediately preceding sentence, the
respective Pledgor
shall
deliver to the Pledgee a supplement to Annex A hereto or Annex F hereto, as
the
case may be, so as to cause such Annex A or F, as the case may be, to be
complete and accurate.
18.
PLEDGORS’ OBLIGATIONS ABSOLUTE, ETC. The obligations of each Pledgor
under this Agreement shall be absolute and unconditional and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred
to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or
its
assignee; (iv) any limitation on any party’s liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole
or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing (it being
understood and agreed that the enforcement hereof may be limited by applicable
bankruptcy, insolvency, restructuring, moratorium or other similar laws
generally affecting creditors’ rights and by equitable principles).
19. REGISTRATION,
ETC. If at any time when the Pledgee shall determine to exercise its
right to sell all or any part of the Collateral consisting of Stock, Limited
Liability Company Interests or Partnership Interests pursuant to Section 7
hereof, and the Collateral or the part thereof to be sold shall not, for any
reason whatsoever, be effectively registered under the Securities Act, as then
in effect, the Pledgee may, in its sole and absolute discretion, sell such
Collateral, as the case may be, or part thereof by private sale in such manner
and under such circumstances as the Pledgee may deem necessary or advisable
in
order that such sale may legally be effected without such
registration. Without limiting the generality of the foregoing, in
any such event the Pledgee, in its sole and absolute discretion (i) may proceed
to make such private sale notwithstanding that a registration statement for
the
purpose of registering such Collateral or part thereof shall have been filed
under such Securities Act, (ii) may approach and negotiate with a single
possible purchaser to effect such sale, and (iii) may restrict such sale to
a
purchaser who will represent and agree that such purchaser is purchasing for
its
own account, for investment, and not with a view to the distribution or sale
of
such Collateral or part thereof. In the event of any such sale, the
Pledgee shall incur no responsibility or liability for selling all or any part
of the Collateral at a price which the Pledgee, in its sole and absolute
discretion, in good xxxxx xxxxx reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sale were deferred until after registration as
aforesaid.
20. TERMINATION;
RELEASE. (a) After the Termination Date, this Agreement
and the security interest created hereby shall terminate (provided that all
indemnities set forth herein including, without limitation, in Section 11 hereof
shall survive any such termination), and the
Pledgee,
at the request and expense of any Pledgor, will as promptly as practicable
(i)
execute and deliver to such Pledgor a proper instrument or instruments
acknowledging the satisfaction and termination of this Agreement, (ii) will
duly
assign, transfer and deliver to such Pledgor (without recourse and without
any
representation or warranty) such of the Collateral as has not theretofore been
sold or otherwise applied or released pursuant to this Agreement or any other
Credit Document, together with any monies at the time held by the Pledgee or
any
of its sub-agents hereunder and (iii) notify the deposit banks under the Control
Agreements that such Control Agreements are terminated. As used in
this Agreement, “Termination Date” shall mean the date upon which the
Total Commitment under the Credit Agreement has been terminated and all Interest
Rate Protection Agreements and Other Hedging Agreements applicable to Loans
(and/or the Commitments) entered into with any Other Creditors have been
terminated, no Note under the Credit Agreement is outstanding and all Loans
thereunder have been repaid in full and all Obligations then due and payable
have been paid in full.
(b) In
the event that any part of the Collateral is sold in connection with a sale
permitted by the Secured Debt Agreements (other than a sale to any Pledgor
or
any Subsidiary thereof) or is otherwise released with the consent of the
Required Secured Creditors and the proceeds of such sale or sales or from such
release are applied in accordance with the provisions of the Credit Agreement,
to the extent required to be so applied, the Pledgee, at the request and expense
of the respective Pledgor, will duly assign, transfer and deliver to such
Pledgor (without recourse and without any representation or warranty) such
of
the Collateral (and releases therefor) as is then being (or has been) so sold
or
released and has not theretofore been released pursuant to this
Agreement.
(c) At
any time that a Pledgor desires that the Pledgee assign, transfer and deliver
Collateral (and releases therefor) as provided in Section 20(a) or (b) hereof,
it shall deliver to the Pledgee a certificate signed by a principal executive
officer of such Pledgor stating that the release of the respective Collateral
is
permitted pursuant to such Section 20(a) or (b).
(d) The
Pledgee shall have no liability whatsoever to any other Secured Creditor as
a
result of any release of Collateral by it in accordance with this Section
20.
21. NOTICES,
ETC. Except as otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including
telexed, telegraphic or telecopier communication) and mailed, telexed,
telecopied or delivered: if to any Pledgor, at c/o Genco Ship
Management LLC, as agent, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx,
Xxx Xxxx 00000, if to any Lender Creditor, at its address specified opposite
its
name on Schedule II to the Credit Agreement; and if to the Pledgee, at its
Notice Office; and, as to each Other Creditor, at such other address as shall
be
designated by such Secured Creditor in a written notice to the Borrower and
the
Administrative Agent. All such notices and communications shall, (i)
when mailed, be effective three Business Days after being deposited in the
mails, prepaid and properly addressed for delivery, (ii) when sent by overnight
courier, be effective one Business Day after delivery to the overnight courier
prepaid and properly addressed for delivery on such next Business Day, or (iii)
when sent by telex or telecopier, be effective when sent by telex or telecopier,
except that notices and
communications
to the Pledgee or any Pledgor shall not be effective until received by the
Pledgee or such Pledgor, as the case may be.
22. WAIVER;
AMENDMENT. None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever except in writing
duly signed by each Pledgor directly affected thereby and the Pledgee (with
the
written consent of the Required Secured Creditors); provided, that any
change, waiver, modification or variance affecting the rights and benefits
of a
single Class (as defined below) of Secured Creditors (and not all Secured
Creditors in a like or similar manner) shall also require the written consent
of
the Requisite Creditors (as defined below) of such affected
Class. For the purpose of this Agreement, the term “Class”
shall mean each class of Secured Creditors, i.e., whether (i) the Lender
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term “Requisite Creditors” of any Class shall mean each of
(i) with respect to the Credit Document Obligations, the Required Lenders and
(ii) with respect to the Other Obligations, the holders of at least a majority
of all obligations outstanding from time to time under the Interest Rate
Protection Agreements and Other Hedging Agreements with respect to outstanding
Loans (and/or the Commitments) from time to time.
23. MISCELLANEOUS. This
Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of and be enforceable
by
each of the parties hereto and its successors and assigns, provided that no
Pledgor may assign any of its rights or obligations under this Agreement except
in accordance with the terms of the Secured Debt
Agreements. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED
BY
THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES
(OTHER THAN TITLE 14 OF ARTICLE 5 OF THE NEW YORK GENERAL OBLIGATIONS
LAW). EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY. The headings in this Agreement are for purposes of
reference only and shall not limit or define the meaning hereof. This
Agreement may be executed in any number of counterparts, each of which shall
be
an original, but all of which shall constitute one
instrument. In the event that any provision of this Agreement shall
prove to be invalid or unenforceable, such provision shall be deemed to be
severable from the other provisions of this Agreement which shall remain binding
on all parties hereto.
24.
RECOURSE. This Agreement is made with full recourse to the Pledgors
and pursuant to and upon all the representations, warranties, covenants and
agreements on the part of the Pledgors contained herein and in the other Credit
Documents and otherwise in writing in connection herewith or
therewith.
25.
ADDITIONAL PLEDGORS. It is understood and agreed that any Subsidiary of the
Borrower that is required to become a party to this Agreement after the date
hereof pursuant to the requirements of the Credit Agreement shall automatically
become a Pledgor hereunder by (x) executing a counterpart hereof and/or a
Subsidiary assumption agreement, in each case in form and
substance
satisfactory to the Pledgee, (y) delivering supplements to Annexes A through
F
hereto as are necessary to cause such Annexes to be complete and accurate with
respect to such additional Pledgor on such date and (z) taking all actions
as
specified in Section 3 of this Agreement as would have been taken by such
Pledgor had it been an original party to this Agreement, in each case with
all
documents required above to be delivered to the Pledgee and with all actions
required to be taken above to be taken to the reasonable satisfaction of the
Pledgee.
26.
RELEASE OF GUARANTORS. In the event any Pledgor which is a Subsidiary
of the Borrower is released from its obligations pursuant to the Subsidiaries
Guaranty, such Pledgor (so long as not the Borrower) shall be released from
this
Agreement and this Agreement shall, as to such Pledgor only, have no further
force or effect.
IN
WITNESS WHEREOF, each Pledgor and the Pledgee have caused this Agreement to
be
executed by their duly elected officers duly authorized as of the date first
above written.
|
|
GENCO
SHIPPING & TRADING LIMITED,
|
|
|
as
a Pledgor
|
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
|
|
Title:
CFO
|
|
|
XXXXX
XXXXXXXX LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
|
|
Title:
CFO
|
|
|
XXXXX
XXXXXXXX LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
|
|
Title:
CFO
|
|
|
GENCO
COMMODUS LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
|
|
Title:
CFO
|
|
|
XXXXX
XXXXXXXXXXX LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxx Xxxxxxxxxx
|
|
|
Name:
Xxxx Xxxxxxxxxx
|
|
|
Title:
CFO
|
|
|
GENCO
HADRIAN LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
LONDON LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
MAXIMUS LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
GENCO
TIBERIUS LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
XXXXX
XXXXX LIMITED
|
|
|
as
Pledgor
|
|
By:
/s/ Xxxxxx Xxxxxx Xxxxxxxx
|
|
|
Name: Xxxxxx
Xxxxxx Xxxxxxxx
|
|
|
Title:
President
|
|
|
Accepted
and Agreed to:
|
|
|
DNB
NOR BANK ASA,
|
|
|
NEW
YORK BRANCH,
|
|
|
as
Pledgee
|
|
By:
/s/ Xxxxxxx X. Xxxxxxxxx
|
|
|
Name:
Xxxxxxx X. Xxxxxxxxx
|
|
|
Title:
Senior Vice President
|
|
By:
/s/ Xxxxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxxxx Xxxxxxx
|
|
|
Title:
Vice President
|
ANNEX
A
to
EXACT
LEGAL NAME OF EACH PLEDGOR AND JURISDICTION OF
ORGANIZATION
|
Name
of Pledgor
|
Jurisdiction
of Organization
|
Organizational
ID Number
|
|
XXXXX
XXXXXXXX LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
XXXXX
XXXXXXXX LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
COMMODUS LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
XXXXX
XXXXXXXXXXX LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
HADRIAN LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
LONDON LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
MAXIMUS LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
SHIPPING & TRADING LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
GENCO
TIBERIUS LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
|
XXXXX
XXXXX LIMITED
|
XXXXXXXX
ISLANDS
|
N/A
|
LIST
OF SUBSIDIARIES
|
Pledgor
|
Direct
Subsidiaries
|
|
X. XXXXX
SHIPPING & TRADING LIMITED
|
XXXXX
XXXXXXXX LIMITED
|
|
XXXXX
XXXXXXXX LIMITED
|
|
|
GENCO
COMMODUS LIMITED
|
|
|
XXXXX
XXXXXXXXXXX LIMITED
|
|
|
GENCO
HADRIAN LIMITED
|
|
|
GENCO
LONDON LIMITED
|
|
|
GENCO
MAXIMUS LIMITED
|
|
|
GENCO
TIBERIUS LIMITED
|
|
|
XXXXX
XXXXX LIMITED
|
|
|
II. All
Other Pledgors
|
None
|
LIST
OF STOCK
|
Name
of Subsidiary
|
Percent
(%)
Ownership
|
|
XXXXX
XXXXXXXX
LIMITED
|
100%
|
|
XXXXX
XXXXXXXX
LIMITED
|
100%
|
|
GENCO
COMMODUS
LIMITED
|
100%
|
|
XXXXX
XXXXXXXXXXX
LIMITED
|
100%
|
|
GENCO
HADRIAN
LIMITED
|
100%
|
|
GENCO
LONDON
LIMITED
|
100%
|
|
GENCO
MAXIMUS
LIMITED
|
100%
|
|
GENCO
TIBERIUS
LIMITED
|
100%
|
|
XXXXX
XXXXX
LIMITED
|
100%
|
LIST
OF LIMITED LIABILITY COMPANY INTERESTS
None.
LIST
OF PARTNERSHIP INTERESTS
None.
LIST
OF CHIEF EXECUTIVE OFFICES
|
Name
of Pledgor
|
Address
|
|
|
XXXXX
XXXXXXXX LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
XXXXX
XXXXXXXX LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
COMMODUS LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
XXXXX
XXXXXXXXXXX LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
HADRIAN LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
LONDON LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
MAXIMUS LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
SHIPPING & TRADING LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
GENCO
TIBERIUS LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
|
XXXXX
XXXXX LIMITED
|
000
Xxxx Xxxxxx
Xxx
Xxxx, XX 00000-0000
|
|
Form
of Agreement Regarding Uncertificated Securities, Limited
Liability
Company
Interests and Partnership Interests
AGREEMENT
(as amended, modified or supplemented from time to time, this
“Agreement”), dated as of _______ __, ____, among the undersigned pledgor
(the “Pledgor”), DNB NOR BANK ASA, New York Branch, not in its individual
capacity but solely as collateral agent (the “Pledgee”), and __________,
as the issuer of the Uncertificated Securities, Limited Liability Company
Interests and/or Partnership Interests (each as defined below) (the
“Issuer”).
W
I T
N E S S E T H :
WHEREAS,
the Pledgor, certain of its affiliates and the Pledgee have entered into a
Pledge and Security Agreement, dated as of July 20, 2007 (as amended, amended
and restated, modified or supplemented from time to time, the “Pledge
Agreement”), under which, among other things, in order to secure the payment
of the Obligations (as defined in the Pledge Agreement), the Pledgor will pledge
to the Pledgee for the benefit of the Secured Creditors (as defined in the
Pledge Agreement), and grant a first priority security interest in favor of
the
Pledgee for the benefit of the Secured Creditors in, all of the right, title
and
interest of the Pledgor in and to any and all (1) “uncertificated
securities” (as defined in Section 8-102(a)(18) of the Uniform Commercial
Code, as adopted in the State of New York) (“Uncertificated Securities”),
(2) Partnership Interests (as defined in the Pledge Agreement) and
(3) Limited Liability Company Interests (as defined in the Pledge Agreement),
in
each case issued from time to time by the Issuer, whether now existing or
hereafter from time to time acquired by the Pledgor (with all of such
Uncertificated Securities, Partnership Interests and Limited Liability Company
Interests being herein collectively called the “Issuer Pledged
Interests”); and
WHEREAS,
the Pledgor desires the Issuer to enter into this Agreement in order to protect
the security interest of the Pledgee under the Pledge Agreement in the Issuer
Pledged Interests, to vest in the Pledgee control of the Issuer Pledge Interests
and to provide for the rights of the parties under this Agreement;
NOW
THEREFORE, in consideration of the premises and the mutual promises and
agreements contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. The
Pledgor hereby irrevocably authorizes and directs the Issuer, and the Issuer
hereby agrees, to comply with any and all instructions and orders originated
by
the Pledgee (and its successors and assigns) regarding any and all of the Issuer
Pledged Interests without the further consent by the registered owner (including
the Pledgor), and, after receiving a notice from the Pledgee stating that an
“Event of Default” has occurred and is continuing, not to comply with any
instructions or orders regarding any or all of the Issuer Pledged Interests
ANNEX
G
Page
2
originated
by any person or entity other than the Pledgee (and its successors and assigns)
or a court of competent jurisdiction.
2. The
Issuer hereby certifies that (i) no notice of any security interest, lien or
other encumbrance or claim affecting the Issuer Pledged Interests (other than
the security interest of the Pledgee) has been received by it, and (ii) the
security interest of the Pledgee in the Issuer Pledged Interests has been
registered in the books and records of the Issuer.
3. The
Issuer hereby represents and warrants that (i) the pledge by the Pledgor of,
and
the granting by the Pledgor of a security interest in, the Issuer Pledged
Interests to the Pledgee, for the benefit of the Secured Creditors, does not
violate the charter, by-laws, partnership agreement, membership agreement
or any other agreement governing the Issuer or the Issuer Pledged Interests,
and
(ii) the Issuer Pledged Interests are fully paid and nonassessable.
4. All
notices, statements of accounts, reports, prospectuses, financial statements
and
other communications to be sent to the Pledgor by the Issuer in respect of
the
Issuer will also be sent to the Pledgee at the following address:
DnB
Nor
Bank ASA,
New
York Branch
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
5. Until
the Pledgee shall have delivered written notice to the Issuer that all of the
Obligations have been paid in full and this Agreement is terminated, the Issuer
will, upon receiving notice from the Pledgee stating that an “Event of
Default” has occurred and is continuing, send any and all redemptions,
distributions, interest or other payments in respect of the Issuer Pledged
Interests from the Issuer for the account of the Pledgor only by wire transfers
to such account as the Pledgee shall instruct.
6. Except
as expressly provided otherwise in Sections 4 and 5, all notices, shall be
sent
or delivered by mail, telegraph, telex, telecopy, cable or overnight courier
service and all such notices and communications shall, when mailed, telegraphed,
telexed, telecopied, or cabled or sent by overnight courier, be effective when
deposited in the mails, delivered to the telegraph company, cable company or
courier, as the case may be, or sent by telex or telecopier, except that notices
and communications to the Pledgee, the Pledgor or the Issuer shall not be
effective until received by the Pledgee, the Pledgor or the Issuer, as the
case
may be. All notices and other communications shall be in writing
and addressed as follows:
(a) if
to any Pledgor, at:
c/o
Genco
Ship Management LLC,
00
Xxxx
00xx
Xxxxxx
ANNEX
G
Page
3
Xxx
Xxxx,
XX 00000
Attention: Xxxx
Xxxxxxxxxx
Telephone
No.: 000-000-0000
Telecopier
No.: 000-000-0000
with
copies to:
Xxxxxx
& Xxxxxx LLP
Xxx
Xxxxxxx Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxx Xxxxxxxxx
Telephone
No.: 000-000-0000
Telecopier
No.: 000-000-0000
(b) if
to the Pledgee, at:
DnB
Nor
Bank ASA,
New
York Branch
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
(c) if
to the Issuer, at:
________________________
________________________
________________________
or
at
such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
7. This
Agreement shall be binding upon the successors and assigns of the Pledgor and
the Issuer and shall inure to the benefit of and be enforceable by the Pledgee
and its successors and assigns. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and
conditions of this Agreement may be changed, waived, modified or varied in
the
manner whatsoever except in writing signed by the Pledgee, the Issuer and the
Pledgor.
8. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to its principles of conflict of laws (other
than Title 14 of Articles 5 of the New York General Obligations
Law.
ANNEX
G
Page
4
IN
WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this
Agreement to be executed by their duly elected officers duly authorized as
of
the date first above written.
[______________________],
as
Pledgor
By_____________________________
Name:
Title:
DNB
NOR BANK ASA, NEW
YORK BRANCH,
not
in its individual
capacity but solely as Pledgee
By_____________________________
Name:
Title:
By_____________________________
Name:
Title:
[________________________],
the
Issuer
By_____________________________
Name:
Title:
ANNEX
H
to
Pledge
and Security Agreement
Form
of Control Agreement Regarding Deposit Accounts
CONTROL
AGREEMENT REGARDING DEPOSIT ACCOUNTS (as amended, modified or supplemented
from
time to time, this “Agreement”), dated as of _______ __, ____, among the
undersigned assignor (the “Assignor”), DNB NOR BANK ASA, New York Branch,
not in its individual capacity but solely as Collateral Agent (the
“Collateral Agent”) and NORDEA BANK FINLAND, PLC, New York Branch, as the
deposit account bank (the “Deposit Account Bank”), as the bank (as
defined in Section 9-102 of the UCC as in effect on the date hereof in the
State
of _______________ (the “UCC”)) with which one or more deposit accounts
(as defined in Section 9-102 of the UCC) are maintained by the Assignor (with
all such deposit accounts now or at any time in the future maintained by the
Assignor with the Deposit Account Bank being herein called the “Deposit
Accounts”).
W
I T
N E S S E T H :
WHEREAS,
the Assignor, various other Assignors and the Collateral Agent have entered
into
a Pledge and Security Agreement, dated as of July 20, 2007 (as amended, amended
and restated, modified or supplemented from time to time, the “Pledge and
Security Agreement”), under which, among other things, in order to secure
the payment of the Obligations (as defined in the Pledge and Security
Agreement), the Assignor has granted a first priority security interest to
the
Collateral Agent for the benefit of the Secured Creditors (as defined in the
Pledge and Security Agreement) in all of the right, title and interest of the
Assignor in and into any and all deposit accounts (as defined in Section 9-102
of the UCC) and in all monies, securities, instruments and other investments
deposited therein from time to time (collectively, herein called the
“Collateral”); and
WHEREAS,
the Assignor desires that the Deposit Account Bank enter into this Agreement
in
order to establish “control” (as defined in Section 9-104 of the UCC) in
each Deposit Account at any time or from time to time maintained with the
Deposit Account Bank, and to provide for the rights of the parties under this
Agreement with respect to such Deposit Accounts;
NOW
THEREFORE, in consideration of the premises and the mutual promises and
agreements contained herein, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Assignor’s
Dealings with Deposit Accounts; Notice of Exclusive Control. Until the
Deposit Account Bank shall have received from the Collateral Agent a Notice
of
Exclusive Control (as defined below), the Assignor shall be entitled to present
items drawn on and otherwise to withdraw or direct the disposition of funds
from
the Deposit Accounts and give instructions in respect of the Deposit Accounts;
provided, however, that the Assignor may not,
ANNEX
H
Page
2
and
the
Deposit Account Bank agrees that it shall not permit the Assignor to, without
the Collateral Agent’s prior written consent, close any Deposit
Account. If upon the occurrence and during the continuance of an
Event of Default (as defined in the Pledge and Security Agreement) the
Collateral Agent shall give to the Deposit Account Bank a notice of the
Collateral Agent’s exclusive control of the Deposit Accounts, which notice
states that it is a “Notice of Exclusive Control” (a “Notice of Exclusive
Control”), only the Collateral Agent shall be entitled to withdraw funds
from the Deposit Accounts, to give any instructions in respect of the Deposit
Accounts and any funds held therein or credited thereto or otherwise to deal
with the Deposit Accounts.
2. Collateral
Agent’s Right to Give Instructions as to Deposit
Accounts. (a) Notwithstanding the foregoing or any
separate agreement that the Assignor may have with the Deposit Account Bank,
the
Collateral Agent shall be entitled, following the occurrence and during the
continuance of an Event of Default for purposes of this Agreement, at any time
to give the Deposit Account Bank instructions as to the withdrawal or
disposition of any funds from time to time credited to any Deposit Account,
or
as to any other matters relating to any Deposit Account or any other Collateral,
without further consent from the Assignor. The Assignor hereby
irrevocably authorizes and instructs the Deposit Account Bank, and the Deposit
Account Bank hereby agrees, to comply with any such instructions from the
Collateral Agent without any further consent from the Assignor. Such
instructions may include the giving of stop payment orders for any items being
presented to any Deposit Account for payment. The Deposit Account
Bank shall be fully entitled to rely on, and shall comply with, such
instructions from the Collateral Agent even if such instructions are contrary
to
any instructions or demands that the Assignor may give to the Deposit Account
Bank. In case of any conflict between instructions received by the
Deposit Account Bank from the Collateral Agent and the Assignor, the
instructions from the Collateral Agent shall prevail.
(b) It
is understood and agreed that the Deposit Account Bank’s duty to comply with
instructions from the Collateral Agent regarding the Deposit Accounts is
absolute, and the Deposit Account Bank shall be under no duty or obligation,
nor
shall it have the authority, to inquire or determine whether or not such
instructions are in accordance with the Pledge and Security Agreement or any
other Credit Document (as defined in the Pledge and Security Agreement), nor
seek confirmation thereof from the Assignor or any other Person.
3. Assignor’s
Exculpation and Indemnification of Depository Bank. The Assignor
hereby irrevocably authorizes and instructs the Deposit Account Bank to follow
instructions from the Collateral Agent regarding the Deposit Accounts even
if
the result of following such instructions from the Collateral Agent is that
the
Deposit Account Bank dishonors items presented for payment from any Deposit
Account. The Assignor further confirms that the Deposit Account Bank
shall have no liability to the Assignor for wrongful dishonor of such items
in
following such instructions from the Collateral Agent. The Deposit
Account Bank shall have no duty to inquire or determine whether the Assignor’s
obligations to the Collateral Agent are in default or whether the Collateral
Agent is entitled, under any separate agreement between the Assignor and the
Collateral Agent, to give any such instructions. The Assignor further
agrees to be responsible for the Deposit Account Bank’s customary charges and
ANNEX
H
Page
3
to
indemnify the Deposit Account Bank from and to hold the Deposit Account Bank
harmless against any loss, cost or expense that the Deposit Account Bank may
sustain or incur in acting upon instructions which the Deposit Account Bank
believes in good faith to be instructions from the Collateral Agent excluding
any loss, cost or expense to the extent incurred as a direct result of the
gross
negligence or willful misconduct of the Deposit Account Bank.
4. Subordination
of Security Interests; Deposit Account Bank’s Recourse to Deposit
Accounts. The Deposit Account Bank hereby subordinates any claims
and security interests it may have against, or with respect to, any Deposit
Account at any time established or maintained with it by the Assignor (including
any amounts, investments, instruments or other Collateral from time to time
on
deposit therein) to the security interests of the Collateral Agent (for the
benefit of the Secured Creditors) therein, and agrees that no amounts shall
be
charged by it to, or withheld or set-off or otherwise recouped by it from,
any
Deposit Account of the Assignor or any amounts, investments, instruments or
other Collateral from time to time on deposit therein; provided that the Deposit
Account Bank may, however, from time to time debit the Deposit Accounts for
any
of its customary charges in maintaining the Deposit Accounts or for
reimbursement for the reversal of any provisional credits granted by the Deposit
Account Bank to any Deposit Account, to the extent, in each case, that the
Assignor has not separately paid or reimbursed the Deposit Account Bank
therefor.
5. Representations,
Warranties and Covenants of Deposit Account Bank. The Deposit
Account Bank represents and warrants to the Collateral Agent that:
(a) The
Deposit Account Bank constitutes a “bank” (as defined in Section 9-102 of
the UCC), that the jurisdiction (determined in accordance with Section 9-304
of
the UCC) of the Deposit Account Bank for purposes of each Deposit Account
maintained by the Assignor with the Deposit Account Bank shall be one or more
States within the United States.
(b) The
Deposit Account Bank shall not permit any Assignor to establish any demand,
time, savings, passbook or other account with it which does not constitute
a
“deposit account” (as defined in Section 9-102 of the UCC).
(c) The
account agreements between the Deposit Account Bank and the Assignor relating
to
the establishment and general operation of the Deposit Accounts provide, whether
specifically or generally, that the laws of New York govern secured transactions
relating to the Deposit Accounts and that the Deposit Account Bank’s
“jurisdiction” for purposes of Section 9-304 of the UCC in respect of the
Deposit Accounts is New York. The Deposit Account Bank will not,
without the Collateral Agent’s prior written consent, amend any such account
agreement so that the Deposit Account Bank’s jurisdiction for purposes of
Section 9-304 of the UCC is other than a jurisdiction permitted pursuant to
preceding clause (a). All account agreements in respect of each
Deposit Account in existence on the date hereof are listed on Annex A hereto
and
copies of all such account agreements have been furnished to the Collateral
Agent. The Deposit Account Bank will promptly furnish to the
Collateral Agent a copy of the account agreement for each Deposit Account
hereafter established by the Deposit Account Bank for the Assignor.
ANNEX
H
Page
4
(d) The
Deposit Account Bank has not entered and will not enter, into any agreement
with any other Person by which the Deposit Account Bank is obligated to comply
with instructions from such other Person as to the disposition of funds from
any
Deposit Account or other dealings with any Deposit Account or other of the
Collateral.
(e) On
the date hereof the Deposit Account Bank maintains no Deposit Accounts for
the
Assignor other than the Deposit Accounts specifically identified in Annex A
hereto.
(f) Any
items or funds received by the Deposit Account Bank for the Assignor’s account
will be credited to said Deposit Accounts specified in paragraph (e) above
or to
any other Deposit Accounts hereafter established by the Deposit Account Bank
for
the Assignor in accordance with this Agreement.
(g) The
Deposit Account Bank will promptly notify the Collateral Agent of each Deposit
Account hereafter established by the Deposit Account Bank for the Assignor
(which notice shall specify the account number of such Deposit Account and
the
location at which the Deposit Account is maintained), and each such new Deposit
Account shall be subject to the terms of this Agreement in all
respects.
6. Deposit
Account Statements and Information. The Deposit Account Bank
agrees, and is hereby authorized and instructed by the Assignor, to furnish
to
the Collateral Agent, at its address indicated below, copies of all account
statements and other information relating to each Deposit Account that the
Deposit Account Bank sends to the Assignor and to disclose to the Collateral
Agent all information requested by the Collateral Agent regarding any Deposit
Account.
7. Conflicting
Agreements. This Agreement shall have control over any
conflicting agreement between the Deposit Account Bank and the
Assignor.
8. Merger
or Consolidation of Deposit Account Bank. Without the execution
or filing of any paper or any further act on the part of any of the parties
hereto, any bank into which the Deposit Account Bank may be merged or with
which
it may be consolidated, or any bank resulting from any merger to which the
Deposit Account Bank shall be a party, shall be the successor of the Deposit
Account Bank hereunder and shall be bound by all provisions hereof which are
binding upon the Deposit Account Bank and shall be deemed to affirm as to itself
all representations and warranties of the Deposit Account Bank contained
herein.
9. Notices. (a) All
notices and other communications provided for in this Agreement shall be in
writing (including facsimile) and sent to the intended recipient at its address
or telex or facsimile number set forth below:
ANNEX
H
Page
5
If
to
the Collateral Agent, at:
DnB
Nor
Bank ASA,
New
York Branch
000
Xxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn: Xxxxxxx
Xxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If
to
the Assignor, at:
____________
____________
____________
If
to
the Deposit Account Bank, at:
Nordea
Bank Finland, Plc,
New
York Branch
000
Xxxxxxx Xxxxxx
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Hans
Chr. Kjelsrud
Telephone: (000)
000 0000
Facsimile: (000)
000 0000
or,
as to
any party, to such other address or telex or facsimile number as such party
may
designate from time to time by notice to the other parties.
(b) Except
as otherwise provided herein, all notices and other communications hereunder
shall be delivered by hand or by commercial overnight courier (delivery charges
prepaid), or mailed, postage prepaid, or telexed or faxed, addressed as
aforesaid, and shall be effective (i) three business days after being deposited
in the mail (if mailed), (ii) when delivered (if delivered by hand or courier)
and (iii) or when transmitted with receipt confirmed (if telexed or faxed);
provided that notices to the Collateral Agent shall not be effective
until actually received by it.
10. Amendment. This
Agreement may not be amended, modified or supplemented except in writing
executed and delivered by all the parties hereto.
ANNEX
H
Page
6
11. Binding
Agreement. This Agreement shall bind the parties hereto and their
successors and assign and shall inure to the benefit of the parties hereto
and
their successors and assigns. Without limiting the provisions of the
immediately preceding sentence, the Collateral Agent at any time or from time
to
time may designate in writing to the Deposit Account Bank a successor Collateral
Agent (at such time, if any, as such entity becomes the Collateral Agent under
the Pledge and Security Agreement, or at any time thereafter) who shall
thereafter succeed to the rights of the existing Collateral Agent hereunder
and
shall be entitled to all of the rights and benefits provided
hereunder.
12. Continuing
Obligations. The rights and powers granted herein to the
Collateral Agent have been granted in order to protect and further perfect
its
security interests in the Deposit Accounts and other Collateral and are powers
coupled with an interest and will be affected neither by any purported
revocation by the Assignor of this Agreement or the rights granted to the
Collateral Agent hereunder or by the bankruptcy, insolvency, conservatorship
or
receivership of the Assignor or the Deposit Account Bank or by the lapse of
time. The rights of the Collateral Agent hereunder and in respect of
the Deposit Accounts and the other Collateral, and the obligations of the
Assignor and Deposit Account Bank hereunder, shall continue in effect until
the
security interests of Collateral Agent in the Deposit Accounts and such other
Collateral have been terminated and the Collateral Agent has notified the
Deposit Account Bank of such termination in writing.
13. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
14. Counterparts.
This Agreement may be executed in any number of counterparts, all of which
shall
constitute one and the same instrument, and any party hereto may execute this
Agreement by signing and delivering one or more counterparts.
15. Termination.
This Agreement and the security interest created hereby shall terminate on
the
date on which the Collateral Agent shall have given the Deposit Account Bank
written notice that this Agreement shall have terminated.
ANNEX
H
Page
7
IN
WITNESS WHEREOF, the parties hereto have duly executed and delivered this
Agreement as of the date first written above.
|
|
Assignor:
|
| [NAME OF ASSIGNOR] |
|
|
By:______________________
|
|
|
Name:
|
|
|
Title:
|
| Collateral Agent: |
|
|
DNB
NOR BANK ASA, NEW YORK BRANCH,
|
|
|
as
Collateral Agent
|
|
|
By:______________________
|
|
|
Name:
|
|
|
Title:
|
|
|
By:______________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Deposit
Account Bank:
|
|
|
NORDEA
BANK FINLAND PLC, NEW YORK BRANCH, as Deposit Account
Bank
|
|
|
By:
______________________
|
| Name: |
| Title: |
|
|
By:
______________________
|
| Name: |
| Title: |
|
|
Annex
I
|
Operating
Accounts
|
Assignor
|
Account
Number
|
