EXHIBIT 10.3
AMENDED AND RESTATED
PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "AGREEMENT"),
dated as of July 26, 2002, is made by UTI DRILLING, L.P., a Texas limited
partnership ("UTI"), NORTON DRILLING, L.P., a Delaware limited partnership
("NDLP"), UNIVERSAL WELL SERVICES, INC., a Delaware corporation ("UWSI"), UTI
MANAGEMENT SERVICES, L.P., a Texas limited partnership ("UTIMS"), SUITS DRILLING
COMPANY, an Oklahoma corporation ("SDC"), XXXXXXXXX-UTI DRILLING COMPANY LP,
LLLP, a Delaware limited liability limited partnership ("PUDC"), XXXXXXXXX-UTI
ENERGY, INC., a Delaware corporation ("PARENT"), UTICO, INC., a Delaware
corporation ("HOLDING"), UTICO HARD ROCK BORING, INC., a Delaware corporation
("UHRB"), INTERNATIONAL PETROLEUM SERVICE COMPANY, a Pennsylvania corporation
("IPSCO"), NORTON DRILLING SERVICES, INC., a Delaware corporation ("NDS"),
NORTON DRILLING COMPANY MEXICO, INC., a Delaware corporation ("NDM"), XXXXXXXXX
(GP) LLC, a Delaware limited liability company ("XXXXXXXXX XX"), XXXXXXXXX (LP)
LLC, a Delaware limited liability company ("XXXXXXXXX XX"), XXXXXXXXX (GP2) LLC,
a Delaware limited liability company ("XXXXXXXXX GP2"), UTI DRILLING CANADA,
INC., a Delaware corporation ("UTI CANADA") and XXXXXX XX, L.L.C., a Delaware
limited liability company ("XXXXXX XX") (UTI, NDLP, UWSI, UTIMS, SDC, PUDC,
Parent, Holding, UHRB, IPSCO, NDS, NDM, Xxxxxxxxx XX, Xxxxxxxxx XX, Xxxxxxxxx
GP2, UTI Canada and Xxxxxx XX are referred to herein individually as "PLEDGOR"
and collectively as the "PLEDGORS") in favor of THE CIT GROUP/BUSINESS CREDIT,
INC., a New York corporation having an office located at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("CITBC"), as Agent, pledgee, assignee and
secured party (in any and all such capacities and together with any successors
in such capacities, "AGENT") for the benefit of the Lenders (as defined below).
RECITALS:
A. The ownership interests owned by each Pledgor which are being
pledged hereunder are as follows: (1) Parent owns all of the issued and
outstanding capital stock of Holding and NDS and a 100% membership interest in
Xxxxxxxxx XX and Xxxxxxxxx XX; (2) Xxxxxxxxx XX owns a 99% limited partnership
interest in PUDC, LONE STAR MUD LP, LLLP, a Delaware limited liability limited
partnership, ("LSM"), AMBAR DRILLING FLUIDS LP, LLLP, a Delaware limited
liability limited partnership ("ADF"), xxxxxxxxx petroleum lp, lllp, a Delaware
limited liability limited partnership ("PPLP"), and xxxxxxxxx petroleum trading
company lp, lllp, a Delaware limited liability limited partnership ("PPTC"); (3)
Xxxxxxxxx XX owns a 1% general partnership interest in PUDC, LSM, ADF, PPLP and
PPTC; (4) PUDC owns a 99% limited partnership interest in XXXXXXXXX-UTI DRILLING
COMPANY SOUTH LP, LLLP, a Delaware limited liability limited partnership
("PUDCS"), and XXXXXXXXX-UTI DRILLING COMPANY WEST LP, LLLP, a Delaware limited
liability limited partnership ("PUDCW"), and a 100% membership interest in
XXXXXXXXX GP2; (5) Xxxxxxxxx GP2 owns a 1% general partnership interest in PUDCS
and
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PUDCW; (6) Holding owns all of the issued and capital stock of IPSCO, UWSI,
UHRB and SDC and a 99% limited partnership interest in UTIMS and UTI; (7) UHRB
owns a 1% general partnership interest in UTIMS and UTI; (8) NDLP owns all of
the issued and outstanding stock of NDM; (9) NDS owns a 99% limited partnership
interest in NDLP and a 100% membership interest in Xxxxxx XX; (10) Xxxxxx XX
owns a 1% general partnership interest in NDLP; (11) UTI owns all of the issued
and outstanding capital stock of UTI Canada; and (12) UTI Canada owns all of the
issued and outstanding capital stock of Xxxxxx Drilling Co., a corporation
organized under the laws of the Province of Nova Scotia, Canada ("Xxxxxx
Drilling").
B. Each Pledgor is the legal, record and beneficial owner of the
Pledged Collateral (as defined below) pledged by it pursuant to this Agreement.
C. UTI, NDLP, UWSI, UTIMS, SDC, PUDC, PUDCS, PUDCW, LSM, and ADF
(collectively, the "Borrowers") and Parent, Holding, UHRB, IPSCO, NDS, NDM, UTI
Canada, Xxxxxxxxx XX, Xxxxxxxxx XX, Xxxxxxxxx GP2, PPLP, PPTP and Xxxxxx XX
(collectively, the "Guarantors") have entered into the Amended and Restated Loan
and Security Agreement dated as of even date herewith (as amended and modified
or supplemented from time to time, the "Loan Agreement") with Agent and the
Lenders named therein and from time to time parties thereto (collectively, the
"Lenders"), pursuant to which, among other things, the Lenders have agreed to
provide certain credit accommodations to or for the benefit of the Borrowers,
and each Pledgor has agreed to be liable to the Agent and the Lenders in respect
of such credit accommodations. Capitalized terms used herein and not defined
shall have the meaning assigned to such terms in the Loan Agreement.
D. Each of the Pledgors has represented to the Agent and the Lenders
that each Pledgor will receive substantial benefit from the performance of the
Loan Agreement, and each Pledgor has agreed to grant to the Agent, liens and
security interests in the Pledged Collateral owned by it to secure the Secured
Obligations (as hereinafter defined).
E. It is a condition to the obligations of the Lenders to continue to
make the Loans under the Loan Agreement and to issue Letters of Credit that the
Pledgors execute and deliver the applicable Loan Documents, including this
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor and Agent hereby agree as follows:
Section 1. Pledge. As collateral security for the payment and performance when
due of all of the Secured Obligations, each Pledgor, jointly and severally,
hereby pledges, assigns, transfers and grants to Agent for its benefit and the
benefit of the Lenders, a continuing first priority security interest in and to
all of the right, title and interest of such Pledgor in, to and under the
following property, whether now existing or hereafter acquired (collectively,
the "PLEDGED COLLATERAL"):
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(a) all of the issued and outstanding shares of capital stock
of Holding, NDS, NDM, IPSCO, UWSI, UHRB, SDC, UTI Canada, and Xxxxxx
Drilling described on Schedule A hereto (the "PLEDGED STOCK") (which
are and shall, subject to Section 4(b) hereof, remain at all times
until this Agreement terminates, certificated shares), including the
certificates representing the Pledged Stock and any interest of Parent
in the entries on the books of any financial intermediary pertaining to
the Pledged Stock;
(b) all additional shares of capital stock of any issuer of
the Pledged Stock from time to time acquired by any Pledgor in any
manner (which are and shall, subject to Section 4(b) hereof, remain at
all times until this Agreement terminates, certificated shares) (which
shares shall, upon acquisition, be deemed to be part of the Pledged
Stock), including the certificates representing such additional shares
and any interest of any Pledgor in the entries on the books of any
financial intermediary pertaining to such additional shares;
(c) all partnership interests in (i) PUDC, LSM, ADF, PPLP and
PPTC owned by Xxxxxxxxx XX and Xxxxxxxxx XX, (ii) PUDCW and PUDCS owned
by PUDC and Xxxxxxxxx GP2, (iii) UTIMS and UTI owned by Holding and
UHRB, and (iv) NDLP owned by NDS and Xxxxxx XX, together with all
rights, privileges, authority and powers of such Pledgors in and to
PUDC, LSM, ADF, PPLP, PPTC, PPDCW, PPDCS, UTIMS, UTI, and NDLP
(collectively, the "Partnerships") or under the Agreements of Limited
Partnership of the Partnerships (the "PARTNERSHIP AGREEMENTS")
(collectively, the "INITIAL PLEDGED PARTNERSHIP INTERESTS"), and the
certificates, instruments and agreements, if any, representing the
Initial Pledged Partnership Interests;
(d) (i) all of the membership interests (1) of Xxxxxxxxx XX
and Xxxxxxxxx XX owned by Parent, (2) of Xxxxxxxxx GP2 owned
by PUDC, and (3) of Xxxxxx XX owned by NDS (the "Initial
Pledged Membership Interests");
(ii) all limited liability company membership
interests and all other ownership interests in any issuer
which such Pledgors shall, from time to time, become entitled
to receive or shall receive pursuant to subsection (d)(iii)
hereof, all certificates, if any, representing any such
membership interests, all options and other rights,
contractual or otherwise, at any time existing with respect to
such membership interests, and all dividends, cash,
instruments and other property now or hereafter received,
receivable or otherwise distributed in respect of or in
exchange for any or all of such membership interests; and
(iii) all rights, privileges, authority and powers of
such Pledgors under all operating agreements, certificates,
and other agreements of Xxxxxxxxx XX, Xxxxxxxxx XX, Xxxxxxxxx
GP2, and Xxxxxx XX (being herein called the "LLC Agreements");
(e) all options, warrants, rights, agreements, additional
partnership interests or other interests relating to any Borrower,
Pledgor or any Guarantor (as defined in the Loan Agreement)
(collectively, the "ADDITIONAL INTERESTS"; and, collectively with the
Initial
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Pledged Partnership Interests and the Initial Pledged Membership
Interests, the "PLEDGED INTEREST"; and, collectively with the Pledged
Stock, the "PLEDGED SECURITIES") from time to time acquired by the
Pledgor in any manner and the certificates, instruments and agreements,
if any, representing the Additional Interests;
(f) all intercompany notes now owned or held by any Pledgor
and from time to time acquired by any Pledgor in any way, including the
intercompany notes described on Schedule B hereto (collectively, the
"INTERCOMPANY NOTES") and all certificates or instruments evidencing
such Intercompany Notes and all proceeds thereof, all accessions
thereto and substitutions therefor;
(g) all dividends, cash, options, warrants, rights,
instruments, distributions, returns of capital, income, profits and
other property, interests or proceeds from time to time received,
receivable or otherwise distributed to any Pledgor in respect of or in
exchange for any or all of the Pledged Securities or Intercompany Notes
(collectively, "DISTRIBUTIONS"); and
(h) all proceeds (as defined under Uniform Commercial Code as
in effect in any relevant jurisdiction (the "CODE") or under other
relevant law) of any of the foregoing, and in any event, including,
without limitation, any and all (i) proceeds of any insurance,
indemnity, warranty or guarantee payable to Pledgor from time to time
with respect to any of the Pledged Collateral, (ii) payments (in any
form whatsoever) made or due and payable to Pledgor from time to time
in connection with any requisition, confiscation, condemnation, seizure
or forfeiture of all or any part of the Pledged Collateral by any
governmental authority (or any person acting on behalf of a
governmental authority), (iii) instruments representing obligations to
pay amounts in respect of Pledged Securities or Intercompany Notes,
(iv) products of the Pledged Collateral, and (v) other amounts from
time to time paid or payable under or in connection with any of the
Pledged Collateral.
Section 2. Secured Obligations. This Agreement is entered into
by each Pledgor in favor of Agent, for its benefit and the benefit of the
Lenders to secure the payment and performance in full when due, whether at
stated maturity, by acceleration or otherwise (including, without limitation,
the payment of interest and other amounts which would accrue and become due but
for the filing of a petition in bankruptcy or the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)) of:
(i) all "Obligations" of the Borrowers and/or any and every Pledgor now or
hereafter arising or incurred under or in respect of the Loan Agreement and/or
any other Loan Documents; (ii) all obligations of the Borrowers and any and
every Pledgor now or hereafter arising or incurred under or in respect of this
Agreement or any other Loan Document; and (iii) all interest, charges, fees,
costs, expenses, reimbursements, premiums, indemnities and other payments of any
kind or nature in respect of amounts or instruments referred to in any of
clauses (i) and (ii) (the obligations described in clauses (i) through (iii),
collectively, the "SECURED OBLIGATIONS").
Section 3. No Release. Nothing set forth in this Agreement
shall relieve any Pledgor from the performance of any term, covenant, condition
or agreement on such Pledgor's
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part to be performed or observed under or in respect of any of the Pledged
Collateral or from any liability to any Person under or in respect of any of the
Pledged Collateral or shall impose any obligation on Agent or any Lender to
perform or observe any such term, covenant, condition or agreement on such
Pledgor's part to be so performed or observed or shall impose any liability on
Agent or any Lender for any act or omission on the part of any Pledgor relating
thereto or for any breach of any representation or warranty on the part of any
Pledgor contained in this Agreement or any other Loan Document or under or in
respect of the Pledged Collateral or made in connection herewith or therewith.
Section 4. Delivery of Pledged Collateral. (a) All
certificates, agreements, notes or instruments representing or evidencing the
Pledged Collateral, to the extent not previously delivered to Agent, shall
immediately upon receipt thereof by any Pledgor be delivered to and held by or
on behalf of Agent pursuant hereto except that stock certificates or other
evidence of Pledged Collateral relating to corporations incorporated outside of
the United States may be held by foreign counsel under an escrow arrangement
satisfactory to Agent. All Pledged Collateral shall be in suitable form for
transfer by delivery or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance reasonably
satisfactory to Agent. Agent shall have the right, at any time upon the
occurrence of an Event of Default and without notice to any Pledgor, to endorse,
assign or otherwise transfer to or to register in the name of Agent or any of
its nominees any or all of the Pledged Collateral. In addition, Agent shall have
the right at any time to exchange certificates representing or evidencing
Pledged Collateral for certificates of smaller or larger denominations.
(b) If the issuer of any Pledged Securities is organized in a
jurisdiction which does not permit the use of certificates to evidence equity or
partnership ownership, as the case may be, or if any of the Pledged Securities
are not evidenced by certificates of ownership or other evidence of partnership
interests, as the case may be, then the Pledgor that pledged such Pledged
Securities shall, to the extent permitted by applicable law, record such pledge
on the stock register or books of the issuer, execute any customary stock pledge
forms or other documents necessary or appropriate to complete the pledge and
give Agent the right to transfer such Pledged Securities under the terms hereof
and provide to Agent an opinion of counsel, in form and substance reasonably
satisfactory to Agent, confirming such pledge.
Section 5. Supplements; Further Assurances. (a) Each Pledgor
agrees that at any time and from time to time, at its sole cost and expense, it
shall promptly execute and deliver all further instruments and documents,
including, without limitation, supplemental or additional UCC-1 financing
statements, and take all further action that may be necessary or that Agent may
reasonably request, in order to perfect and protect the pledge, security
interest and Lien granted or purported to be granted hereby or to enable Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Pledged Collateral.
(b) Each Pledgor shall, upon obtaining any Pledged Securities
or Intercompany Notes of any Person, promptly (and in any event within five
Business Days) deliver to Agent a pledge amendment, duly executed by such
Pledgor, in substantially the form of Exhibit 1 hereto (each, a "PLEDGE
AMENDMENT"), in respect of the additional Pledged Securities or Intercompany
Notes which are to be pledged pursuant to this Agreement, and confirming the
attachment of the
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Lien hereby created on and in respect of such additional Pledged Securities or
Intercompany Notes. Each Pledgor hereby authorizes Agent to attach each Pledge
Amendment to this Agreement and agrees that all Pledged Securities or
Intercompany Notes listed on any Pledge Amendment delivered to Agent shall for
all purposes hereunder be considered Pledged Collateral.
Section 6. Representations, Warranties and Covenants. Each
Pledgor, jointly and severally, represents, warrants and covenants (as
applicable), after giving effect to the transactions contemplated by the Loan
Documents as follows (as to itself and each other Pledgor):
(a) No Liens. Such Pledgor is, and at the time of any delivery
of any Pledged Collateral to Agent pursuant to Section 4 of this
Agreement will be, the sole legal and beneficial owner of the Pledged
Collateral pledged by it. All Pledged Collateral pledged by it is on
the date hereof, and will be, so owned by such Pledgor free and clear
of any Lien except for the Lien created by this Agreement and the
Security Agreement.
(b) No Consents, etc. No consent of any party (including,
without limitation, stockholders or creditors of such Pledgor) and no
consent, authorization, approval, or other action by, and no notice to
or filing with, any Governmental Authority or regulatory body or other
Person (other than those consents or approvals which have been obtained
as of the date hereof) is required (i) for the execution, delivery or
performance of this Agreement by such Pledgor or for the pledge by such
Pledgor of the Pledged Collateral pursuant to this Agreement, (ii) for
the exercise by Agent of the voting or other rights provided for in
this Agreement (other than any such consent, approval or action
required to be taken by the Agent), or (iii) for the exercise by Agent
of the remedies in respect of the Pledged Collateral pursuant to this
Agreement (other than any such consent, approval or action required to
be taken by the Agent).
(c) Due Authorization and Issuance. All of the Pledged Shares
pledged by it have been, and to the extent hereafter issued will be
upon such issuance, duly authorized and validly issued and fully paid
and nonassessable to the extent permitted by applicable law. Xxxxxxxxx
XX, Xxxxxxxxx XX, Xxxxxxxxx GP2 and Xxxxxx XX have fully paid for their
respective Initial Pledged Partnership Interests and there is no amount
or other obligation on the part of such Pledgors owing in exchange for
their Initial Pledged Partnership Interest or such Pledgors' status as
partners of PUDC, LSM, ADF, PPLP, PPTC, PUDCW, PUDCS, UTIMS, UTI and
NDLP. Parent, PUDC and NDS have fully paid for their respective Initial
Pledged Membership Interests and there is no amount or obligation on
the part of such Pledgors owing in exchange for the Initial Pledged
Membership Interests or such Pledgors' status as members of Xxxxxxxxx
XX, Xxxxxxxxx XX, Xxxxxxxxx GP2 and Xxxxxx XX.
(d) Chief Executive Office. Such Pledgors' chief executive
offices are located at addresses set forth in Schedule 7(1) of the Loan
Agreement and each Pledgor's state of organization is Delaware. No
Pledgor shall move its chief executive office except to such new
location as such Pledgor may establish in accordance with the last
sentence of this Section 6(d). No Pledgor shall establish a new
location for its chief executive office or
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shall it change its name until (i) it shall have given Agent not less
than 30 days' prior written notice of its intention to do so, clearly
describing such new location or name and providing such other
information in connection therewith as Agent or any Secured Party may
reasonably request, and (ii) with respect to such new location or name,
such Pledgor shall have taken all action satisfactory to Agent to
maintain the perfection and priority of the security interest in the
Pledged Collateral intended to be granted hereby.
(e) Delivery of Pledged Collateral; Filings. Such Pledgor has
delivered (or in the case of Pledged Securities acquired by such
Pledgor after the date hereof, such Pledgor will have delivered) to
Agent all certificates representing the Pledged Securities and
Intercompany Notes intended to be pledged pursuant to this Agreement
and has directed the Agent to file UCC-1 financing statements
(evidencing the lien created by this Agreement) with the Secretary of
State in the appropriate jurisdiction, and such delivery and pledge of
the Pledged Collateral pursuant to this Agreement creates, upon proper
filing, a valid and perfected first priority security interest in the
Pledged Collateral securing the payment of the Secured Obligations
pursuant to the Code in effect in the appropriate jurisdiction.
(f) Pledged Collateral. All information set forth herein,
including the Schedules annexed hereto, relating to the Pledged
Collateral pledged by it is accurate and complete in all respects.
(g) No Violations, etc. The pledge of the Pledged Collateral
pledged by it pursuant to this Agreement does not violate Regulation U
or X of the Federal Reserve Board.
(h) Ownership of Pledged Collateral. Except as otherwise
permitted by the Loan Agreement, such Pledgor at all times will be the
sole beneficial owner of the Pledged Collateral pledged by it.
(i) No Options, Warrants, etc. There are no options, warrants,
calls, rights, commitments or agreements of any character to which such
Pledgor is a party or by which it is bound obligating such Pledgor to
issue, deliver or sell or cause to be issued, delivered or sold,
additional Pledged Securities or obligating such Pledgor to grant,
extend or enter into any such option, warrant, call, right, commitment
or agreement. There are no voting trusts or other agreements or
understandings to which such Pledgor is a party with respect to the
voting of the capital stock of any issuer of the Pledged Securities
pledged by it.
(j) Partnership Agreements and LLC Agreements. The Pledgors
have delivered to Agent a true, correct and complete copy of the
Partnership Agreements and the LCC Agreements. Each of the Partnership
Agreements and LLC Agreements is in full force and effect, has not, as
of the date hereof, been amended or modified and there is no existing
default by any party thereunder or any event which, with the giving of
notice or passage of time or both, would constitute a default by any
party thereunder. No person will terminate or agree to terminate the
Partnership Agreements or the LLC Agreements or make any amendment or
modification to the Partnership Agreements or the LLC
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Agreements which may have a Material Adverse Effect on the value of the
Pledged Collateral. The Pledgors shall deliver to Agent as promptly as
practicable following the execution thereof, certified copies or
executed originals of each such amendment and modification concurrently
with the delivery of such documents to the parties thereto.
Section 7. Voting Rights; Distributions; etc. (a) So long as
no Event of Default shall have occurred and be continuing:
(i) each Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Securities or any
part thereof for any purpose not inconsistent with the terms or purpose
of this Agreement or any other Loan Document; provided, however, that
such Pledgor shall not in any event exercise such rights in any manner
which could reasonably be expected to have a Material Adverse Effect on
the value of the Pledged Collateral pledged by it or an adverse effect
on the other rights and remedies provided to the Agent by this
Agreement.
(ii) Subject to the terms of the Loan Agreement, each Pledgor shall be
entitled to receive and retain, and to utilize free and clear of the
Lien of this Agreement, any and all Distributions, but only if and to
the extent made in accordance with the provisions of the Loan
Documents; provided, however, that any and all such Distributions
consisting of rights or interests in the form of securities shall be
forthwith delivered to Agent to hold as Pledged Collateral and shall,
if received by any Pledgor, be received in trust for the benefit of
Agent, be segregated from the other property or funds of such Pledgor,
and be forthwith delivered to Agent as Pledged Collateral in the same
form as so received (with any necessary endorsement).
(iii) Agent shall be deemed without further action or formality to have
granted to each Pledgor all necessary consents relating to voting
rights and shall, if necessary, upon written request of any Pledgor and
at such Pledgor's sole cost and expense, from time to time execute and
deliver (or cause to be executed and delivered) to such Pledgor all
such instruments as such Pledgor may reasonably request in order to
permit such Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to Section 7(a)(i) hereof and to receive
the Distributions which it is authorized to receive and retain pursuant
to Section 7(a)(ii) hereof.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(i) All rights of each Pledgor to exercise the voting and other
consensual rights it would otherwise be entitled to exercise pursuant
to Section 7(a)(i) hereof without any action or the giving of any
notice shall cease, and all such rights shall thereupon become vested
in Agent (for so long as such Event of Default shall be continuing),
which shall thereupon have the sole right to exercise such voting and
other consensual rights.
(ii) All rights of each Pledgor to receive Distributions which it would
otherwise be authorized to receive and retain pursuant to Section
7(a)(ii) hereof shall cease and all such rights shall thereupon become
vested in Agent (for so long as such Event of Default shall
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be continuing), which shall thereupon have the sole right to receive
and hold as Pledged Collateral such Distributions.
(c) Each Pledgor shall, at its sole cost and expense, from
time to time execute and deliver to Agent appropriate instruments as Agent may
reasonably request in order to permit Agent to exercise the voting and other
rights which it may be entitled to exercise pursuant to Section 7(b)(i) hereof
and to receive all Distributions which it may be entitled to receive under
Section 7(b)(ii) hereof.
(d) All Distributions which are received by any Pledgor
contrary to the provisions of Section 7(b)(ii) hereof shall be received in trust
for the benefit of Agent, shall be segregated from other funds of such Pledgor
and shall immediately be paid over to Agent as Pledged Collateral in the same
form as so received (with any necessary endorsement).
Section 8. Transfers and Other Liens; Additional Shares. (a)
No Pledgor shall (i) sell, convey, assign or otherwise dispose of, or grant any
option, right or warrant with respect to, any of the Pledged Collateral pledged
by it except as permitted by the Loan Agreement, (ii) create or permit to exist
any Lien upon or with respect to any Pledged Collateral pledged by it other than
the Lien and security interest granted to Agent under this Agreement and the
Security Agreement, or (iii) except as permitted by the Loan Agreement, permit
the issuer of any Pledged Securities pledged by it to merge, consolidate or
change its legal form, unless all of the outstanding capital stock, partnership
interests or membership interests (as applicable) of the surviving or resulting
entity is, upon such merger or consolidation, pledged hereunder and no cash,
securities or other property is distributed in respect of the outstanding
shares, partnership or membership interests (as applicable) of any other
constituent entity.
(b) Each Pledgor shall (i) cause each issuer of the Pledged
Securities pledged by it not to issue any stock or other securities or equity,
partnership or membership interests in addition to or in substitution for the
Pledged Securities issued by such issuer, except to such Pledgor or other
Pledgors, (ii) pledge hereunder, immediately upon its acquisition (directly or
indirectly) thereof, any and all additional shares of capital stock or other
equity, partnership or membership securities of the issuer of the Pledged
Securities which are required to be pledged hereunder and (iii) deliver all
related stock or transfer powers requested by the Agent.
Section 9. Reasonable Care. Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which Agent, in its individual capacity,
accords its own property consisting of similar instruments or interests, it
being understood that neither Agent nor any of the Secured Parties shall have
responsibility for (i) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relating to any
Pledged Collateral, whether or not Agent or any other Secured Party has or is
deemed to have knowledge of such matters, or (ii) taking any necessary steps to
preserve rights against any Person with respect to any Pledged Collateral.
Section 10. Remedies Upon Default; Decisions Relating to
Exercise of Remedies. (a) If any Event of Default shall have occurred and be
continuing, Agent shall have the
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right, in addition to other rights and remedies provided for herein or otherwise
available to it to be exercised from time to time, (i) to retain and apply the
Distributions to the Secured Obligations as provided in Section 11 hereof, (ii)
to exercise any remedies set forth in any Intercompany Notes (to the extent that
a default has occurred thereunder) and (iii) to exercise all the rights and
remedies of a secured party under the Code at the time of an event of default,
and Agent may also in its sole discretion, without notice except as specified
below, sell the Pledged Collateral or any part thereof (including, without
limitation, any partial interest in the Pledged Securities) in one or more
parcels at public or private sale, at any exchange, broker's board or at any of
Agent's offices or elsewhere, for cash, on credit or for future delivery, and at
such price or prices and upon such other terms as Agent may deem commercially
reasonable, irrespective of the impact of any such sales on the market price of
the Pledged Collateral. Agent or any Lender or any of their respective
Affiliates may be the purchaser of any or all of the Pledged Collateral at any
such sale and shall be entitled, for the purpose of bidding and making
settlement or payment of the purchase price for all or any portion of the
Pledged Collateral sold at such sale, to use and apply any of the Secured
Obligations owed to such Person as a credit on account of the purchase price of
any Pledged Collateral payable by such Person at such sale. Each purchaser at
any such sale shall acquire the property sold absolutely free from any claim or
right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest
extent permitted by law, all rights of redemption, stay and/or appraisal which
it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Each Pledgor acknowledges and agrees
that, to the extent notice of sale shall be required by law, ten Business Days
notice to such Pledgor of the time and place of any public sale or the time
after which any private sale or other intended disposition is to take place
shall constitute reasonable notification of such matters. No notification need
be given to a Pledgor if it has signed, after the occurrence of an Event of
Default, a statement renouncing or modifying any right to notification of sale
or other intended disposition. Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned. Each Pledgor hereby waives, to
the fullest extent permitted by law, any claims against Agent arising by reason
of the fact that the price at which any Pledged Collateral may have been sold at
such a private sale was less than the price which might have been obtained at a
public sale, even if Agent accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree.
(b) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and applicable state securities laws, Agent may be compelled,
with respect to any sale of all or any part of the Pledged Collateral, to limit
purchasers to Persons who will agree, among other things, to acquire the Pledged
Collateral for their own account, for investment and not with a view to the
distribution or resale thereof. Each Pledgor acknowledges that any such private
sales may be at prices and on terms less favorable to Agent than those
obtainable through a public sale without such restrictions (including, without
limitation, a public offering made pursuant to a registration statement under
the Securities Act), and, notwithstanding such circumstances, agrees that any
such private sale shall be deemed to have been made in a commercially reasonable
manner and that Agent shall have no obligation to engage in public sales and no
obligation to delay the sale of any Pledged
UTI - PLEDGE AGREEMENT
10
Collateral for the period of time necessary to permit the issuer thereof to
register it for a form of public sale requiring registration under the
Securities Act or under applicable state securities laws, even if such issuer
would agree to do so.
(c) If Agent determines to exercise its right hereunder to
sell any or all of the Pledged Collateral, upon written request, each Pledgor
shall from time to time furnish to Agent all such information as Agent may
request in order to determine the number of securities included in the Pledged
Collateral which may be sold by Agent as exempt transactions under the
Securities Act and the rules of the Securities and Exchange Commission
thereunder, as the same are from time to time in effect.
(d) In addition to any of the other rights and remedies
hereunder, Agent shall have the right to institute a proceeding seeking specific
performance in connection with any of the agreements or obligations hereunder.
(e) Notwithstanding any other provision of this Agreement to
the contrary, if, after giving effect to (i) any sale, transfer or other
disposition of any or all of the Pledged Collateral pursuant hereto and after
the application of the proceeds hereunder to the Secured Obligations and (ii)
the sale, transfer or other disposition of any collateral pledged pursuant to
any other Loan Document and the application of such proceeds thereunder, any
Secured Obligation remains unpaid or unsatisfied, each Pledgor shall remain
liable for the unpaid and unsatisfied amount of such Secured Obligations for
which such Pledgor is otherwise liable pursuant to the Loan Agreement or
otherwise.
Section 11. Application of Proceeds. All Distributions held
from time to time by Agent in accordance with the terms of this Agreement and
all proceeds received by Agent in respect of any sale of, collection from, or
other realization upon all or any part of the Pledged Collateral pursuant to the
exercise by Agent of its remedies as a secured creditor as provided in Section
10 hereof shall be applied, together with any other sums then held by Agent
pursuant to this Agreement, promptly by Agent as follows:
FIRST, to the payment of all costs and expenses, fees,
commissions and taxes of such sale, collection or other realization,
including, without limitation, compensation to Agent and its agents and
the reasonable fees and expenses of its counsel, and all expenses,
liabilities and advances made or incurred by Agent in connection
therewith, together with interest on each such amount at the highest
rate then in effect under the Loan Agreement from and after the date
such amount is due, owing or unpaid until paid in full;
SECOND, to the payment of all other costs and expenses of such
sale, collection or other realization, including, without limitation,
compensation to the Lenders and their agents and the reasonable fees
and expenses of their counsel and all costs, liabilities and
indebtedness made or incurred by the Lenders in connection therewith,
together with interest on each such amount at the highest rate then in
effect under the Loan Agreement from and after the date such amount is
due, owing or unpaid until paid in full;
UTI - PLEDGE AGREEMENT
11
THIRD, to the indefeasible payment in full in cash of interest
and all amounts other than principal under the Loan Agreement at any
time and from time to time owing by any Pledgor under or in connection
with the Loan Agreement, ratably according to the unpaid amounts
thereof, without preference or priority of any kind among amounts so
due and payable, together with interest on each such amount at the
highest rate then in effect under the Loan Agreement from and after the
date such amount is due, owing or unpaid until paid in full;
FOURTH, to the indefeasible payment in full in cash of
principal at any time and from time to time owing by the Pledgors under
or in connection with the Loan Agreement, ratably according to the
unpaid amounts thereof, without preference or priority of any kind,
among amounts so due and payable, together with interest on each such
amount at the highest rate then in effect under the Loan Agreement from
and after the date such amount is due, owing or unpaid until paid in
full; and
FIFTH, the balance, if any, to the Person lawfully entitled
thereto (including Pledgor or its successors or assigns).
Section 12. Expenses. Each Pledgor with respect to itself and
jointly and severally with respect to all other Pledgors, will upon demand pay
to Agent the amount of any and all expenses of Agent in connection with this
Agreement in accordance with Section 7, Paragraph 13, Section 8, Paragraph 5 and
Section 10, Paragraph 3 of the Loan Agreement. All amounts payable by any
Pledgor under this Section 12 shall be due upon demand and shall be part of the
Secured Obligations. Each Pledgor's obligations under this Section shall survive
the termination of this Agreement and the discharge of such Pledgor's other
obligations hereunder.
Section 13. No Waiver; Cumulative Remedies. (a) No failure on
the part of Agent to exercise, no course of dealing with respect to, and no
delay on the part of Agent in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right, power or remedy hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The remedies herein
provided are cumulative and are not exclusive of any remedies provided by law.
(b) In the event Agent shall have instituted any proceeding to
enforce any right, power or remedy under this Agreement by foreclosure, sale,
entry or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason or shall have been determined adversely to Agent, then
and in every such case, each Pledgor, Agent and each holder of any of the
Secured Obligations shall, subject to any determination in such proceeding, be
restored to their respective former positions and rights hereunder with respect
to the Pledged Collateral, and all rights, remedies and powers of Agent and the
Secured Parties shall continue as if no such proceeding had been instituted.
Section 14. Agent. CITBC has been appointed as agent for
itself as a Lender and for the other Lenders pursuant to Section 13, Paragraph 1
of the Loan Agreement. CITBC, as a Lender for itself and the other Lenders
(under the Loan Agreement), hereby confirms and restates such appointment as if
set forth at length herein. The actions of Agent hereunder are
UTI - PLEDGE AGREEMENT
12
subject to the provisions of the Loan Agreement. Agent shall have the right
hereunder to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking action (including,
without limitation, the release or substitution of Pledged Collateral), in
accordance with this Agreement and the Loan Agreement. Agent may resign and a
successor Agent may be appointed in the manner provided in the Loan Agreement.
Upon the acceptance of any appointment as Agent by a successor Agent, that
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent under this
Agreement, and the retiring Agent shall thereupon be discharged from its duties
and obligations under this Agreement. After any retiring Agent's resignation,
the provisions of this Agreement shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement while it was Agent.
Section 15. Agent May Perform; Agent Appointed
Attorney-in-Fact. If any Pledgor shall fail to do any act or thing that it has
covenanted to do hereunder or any warranty on the part of any Pledgor contained
herein shall be breached, Agent may (but shall not be obligated to), upon notice
to any such Pledgor, do the same or cause it to be done or remedy any such
breach, and may expend funds for such purpose. Any and all amounts so expended
by Agent shall be paid by such Pledgor promptly upon demand therefor, with
interest at the highest rate then in effect under the Loan Agreement during the
period from and including the date on which such funds were so expended to the
date of repayment. Each Pledgor's obligations under this Section 15 shall
survive the termination of this Agreement and the discharge of such Pledgor's
other obligations under the Loan Agreement and the other Loan Documents. Each
Pledgor hereby appoints Agent its attorney-in-fact, with full authority in the
place and stead of such Pledgor and in the name of such Pledgor, or otherwise,
from time to time during the continuance of an Event of Default or at any other
time that such Pledgor has failed, after notice from Agent, to take any action
required to be taken by it hereunder, in Agent's discretion to take any action
and to execute any instrument consistent with the terms of this Agreement and
the Loan Agreement which Agent may deem necessary or advisable to accomplish the
purposes of this Agreement. The foregoing grant of authority is a power of
attorney coupled with an interest and such appointment shall be irrevocable for
the term of this Agreement. Each Pledgor hereby ratifies, to the fullest extent
permitted by law, all that such attorney shall lawfully do or cause to be done
by virtue hereof.
Section 16. Indemnity.
(a) INDEMNITY. EACH OF PLEDGORS WITH RESPECT TO ITSELF, AND
JOINTLY AND SEVERALLY WITH RESPECT TO THE OTHER PLEDGORS, AGREES TO INDEMNIFY,
PAY AND HOLD HARMLESS AGENT AND EACH OF THE LENDERS IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 7, PARAGRAPH 13 OF THE LOAN AGREEMENT. TO THE EXTENT THAT
THE UNDERTAKING TO INDEMNIFY, PAY AND HOLD HARMLESS SET FORTH IN THE PRECEDING
SENTENCE MAY BE UNENFORCEABLE BECAUSE IT IS VIOLATIVE OF ANY LAW OR PUBLIC
POLICY, EACH PLEDGOR SHALL CONTRIBUTE THE MAXIMUM PORTION WHICH IT IS PERMITTED
TO PAY AND SATISFY UNDER APPLICABLE LAW, TO THE PAYMENT AND SATISFACTION OF ALL
INDEMNIFIED LIABILITIES INCURRED BY THE INDEMNITEES OR ANY OF THEM.
UTI - PLEDGE AGREEMENT
13
(b) Survival. The obligations of each Pledgor contained in
this Section 16 shall survive the termination of this Agreement and the
discharge of such Pledgor's other obligations under this Agreement and the other
Loan Documents.
(c) Reimbursement. Any amounts paid by any indemnitee as to
which such indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Pledged Collateral.
Section 17. Modification in Writing. No amendment,
modification, supplement, termination or waiver of or to any provision of this
Agreement, nor consent to any departure by any Pledgor therefrom, shall be
effective unless the same shall be done in accordance with the terms of this
Agreement and the Loan Agreement. Any amendment, modification or supplement of
or to any provision of this Agreement, any waiver of any provision of this
Agreement and any consent to any departure by any Pledgor from the terms of any
provision of this Agreement, shall be effective only in the specific instance
and for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on any Pledgor
in any case shall entitle such Pledgor to any other or further notice or demand
in similar or other circumstances.
Section 18. Termination; Release. When all the Secured
Obligations have been indefeasibly paid in full in cash and all of the Revolving
Loan Commitments of the Lenders to make any Loan or to issue (or cause a bank to
issue) any Letter of Credit under the Loan Agreement have expired, this
Agreement shall terminate. Upon termination of this Agreement or any release of
Pledged Collateral in accordance with the provisions of the Loan Agreement, the
Agent shall, upon the request and at the sole cost and expense of any Pledgor,
forthwith assign, transfer and deliver to such Pledgor, against receipt and
without recourse to or warranty by Agent, such of the Pledged Collateral pledged
by it to be released (in the case of a release) as may be in the possession of
Agent and as shall not have been sold or otherwise applied pursuant to the terms
hereof, and, with respect to any other Pledged Collateral, proper instruments
(including, without limitation, Uniform Commercial Code termination statements
on Form UCC-3) acknowledging the termination of this Agreement or the release of
such Pledged Collateral, as the case may be.
Section 19. Notices. All notices or other communications
herein required to be given shall be given at the address and in the manner
required in the Loan Agreement.
Section 20. Continuing Security Interest; Assignment. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (a) be binding upon each Pledgor, and its successors and assigns and
(b) inure, together with the rights and remedies of Agent hereunder, to the
benefit of Agent and the other Secured Parties and each of their respective
successors, transferees and assigns; no other Persons (including, without
limitation, any other creditor of any Pledgor) shall have any interest herein or
any right or benefit with respect hereto.
Section 21. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE
GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
UTI - PLEDGE AGREEMENT
14
WITH, THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY
OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN
RESPECT OF ANY PARTICULAR PROPERTY ARE GOVERNED BY THE LAWS OF A JURISDICTION
OTHER THAN THE STATE OF NEW YORK (INCLUDING, BUT NOT LIMITED TO, SECTION 5-1401
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).
Section 22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH RESPECT TO THIS
AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT EACH
PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES TRIAL BY JURY,
AND EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING,
WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS
OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF
ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS.
Section 23. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 24. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
Section 25. Headings. The Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
Section 26. Obligations Absolute. All obligations of each
Pledgor hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any other
Pledgor;
(ii) any lack of validity or enforceability of the Loan Agreement, any
other Loan Document, or any other agreement or instrument relating
thereto;
UTI - PLEDGE AGREEMENT
15
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Loan
Agreement, any other Loan Document, or any other agreement or
instrument relating thereto;
(iv) any exchange, release or non-perfection of any collateral or the
pledge of any additional collateral or the failure to recover in
respect thereof pursuant to any remedy or right of the Agent or any
Lender contained in this Agreement, the Loan Agreement, or any release
or amendment or waiver of or consent to any departure from any
guarantee, for all or any of the Secured Obligations;
(v) any exercise or non-exercise, or any waiver of any right, remedy,
power or privilege under or in respect of this Agreement or any Loan
Document except as specifically set forth in a waiver granted pursuant
to the provisions of Section 17 hereof; or
(vi) any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any Pledgor.
Section 27. Agent's Right to Sever Indebtedness. (a) Each
Pledgor acknowledges that (i) the Pledged Collateral does not constitute the
sole source of security for the payment and performance of the Secured
Obligations and that the Secured Obligations are also secured by other types of
property of such Pledgor and its Affiliates in other jurisdictions (all such
property, collectively, the "COLLATERAL"), (ii) the number of such jurisdictions
and the nature of the transaction of which this instrument is a part are such
that it would have been impracticable for the parties to allocate to each item
of Collateral a specific loan amount and to execute in respect of such item a
separate credit agreement and security agreement, and (iii) each Pledgor intends
that Agent have the same rights with respect to the Pledged Collateral, in any
judicial proceeding relating to the exercise of any right or remedy hereunder or
otherwise, that Agent would have had if each item of Collateral had been pledged
or encumbered pursuant to a separate credit agreement and security agreement. In
furtherance of such intent, each Pledgor agrees to the greatest extent permitted
by law that, from and after the occurrence of an Event of Default, Agent may at
its option, at any time and from time to time, by notice (an "ALLOCATION
NOTICE") to such Pledgor allocate a portion of the Secured Obligations (the
"ALLOCATED INDEBTEDNESS") to the Pledged Collateral pledged by it and sever from
the remaining Secured Obligations the Allocated Indebtedness. From and after the
giving of an Allocation Notice with respect to the Pledged Collateral, the
Secured Obligations hereunder shall be limited to the extent set forth in the
Allocation Notice and (as so limited) shall, for all purposes, be construed as a
separate credit obligation of such Pledgor unrelated to the other transactions
contemplated by the Loan Agreement. To the extent that the proceeds of any
judicial proceeding relating to the exercise of any right or remedy hereunder of
the Pledged Collateral shall exceed the Allocated Indebtedness, such proceeds
shall belong to such Pledgor and shall not be available hereunder to satisfy any
Secured Obligations of such Pledgor other than the Allocated Indebtedness. In
any action or proceeding to exercise any right or remedy under this Agreement
which is commenced after the giving by Agent of an Allocation Notice, the
Allocation Notice shall be conclusive proof of the limits of the Secured
Obligations hereby secured, and such Pledgor may introduce, by way of
UTI - PLEDGE AGREEMENT
16
defense or counterclaim, evidence thereof in any such action or proceeding.
Notwithstanding any provision of this Section 27, the proceeds received by the
Agent pursuant to this Agreement shall be applied by the Agent in accordance
with the provisions of Section 11 hereof.
(b) Each Pledgor hereby waives to the fullest extent permitted
by law the right to a discharge of any of the Secured Obligations under any
statute or rule of law now or hereafter in effect which provides that the
exercise of any particular right or remedy as provided for herein (by judicial
proceedings or otherwise) constitutes the exclusive means for satisfaction of
the Secured Obligations or which makes unavailable any further judgment or any
other right or remedy provided for herein because the Agent elected to proceed
with the exercise of such initial right or remedy or because of any failure by
Agent to comply with laws that prescribe conditions to the entitlement to such
subsequent judgment or the availability of such subsequent right or remedy. In
the event that, notwithstanding the foregoing waiver, any court shall for any
reason hold that such subsequent judgment or action is not available to Agent,
no Pledgor shall to the extent permitted by applicable law, (i) introduce in any
other jurisdiction any judgment so holding as a defense to enforcement against
such Pledgor of any remedy in the Loan Agreement or any other Loan Document or
(ii) seek to have such judgment recognized or entered in any other jurisdiction,
and any such judgment shall in all events be limited in application only to the
state or jurisdiction where rendered and only with respect to the Collateral
referred to in such judgment.
(c) In the event any instrument in addition to the Allocation
Notice is necessary to effectuate the provisions of this Section 27, including,
without limitation, any amendment to this Agreement, any substitute promissory
note or affidavit or certificate of any kind, each Pledgor agrees that it shall
execute and deliver any such instrument reasonably requested by the Agent so
long as such instrument is consistent with the terms of the Loan Documents.
Section 28. Amendment and Restatement. This Agreement is given
in amendment and restatement (and not extinguishment or novation) of that
certain Pledge Agreement dated as of November 22, 1999, as amended between
certain Pledgors and Agent, that certain Pledge Agreement dated as of May 2,
2000 between certain Pledgors and Agent, and that certain Pledge Agreement dated
as of June 29, 2001 between certain Pledgors and Agent (collectively, the "PRIOR
PLEDGE AGREEMENTS"). The Pledgors acknowledge and agree that all security
interests and liens granted under the Prior Pledge Agreements are renewed and
continued hereunder in full force and effect.
[The remainder of this page intentionally left blank.]
UTI - PLEDGE AGREEMENT
17
EXHIBIT 10.3
IN WITNESS WHEREOF, each Pledgor and the Agent have caused this
Agreement to be duly executed and delivered by their duly authorized officers as
of the date first above written.
PLEDGORS:
UTI DRILLING, L.P.
UTI MANAGEMENT SERVICES, L.P.
By: UTICO Hard Rock Boring, Inc.,
as Sole General Partner of UTI Drilling, L.P.
and UTI Management Services, L.P.
By:
-------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance
NORTON DRILLING, L.P.
By: Xxxxxx XX, L.L.C., its sole general partner
By: Norton Drilling Services, Inc., as Sole Member
of Xxxxxx XX, L.L.C.
By:
------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance
XXXXXXXXX-UTI ENERGY, INC.
UTICO, INC.
UTICO HARD ROCK BORING, INC.
INTERNATIONAL PETROLEUM SERVICE COMPANY
NORTON DRILLING SERVICES, INC.
NORTON DRILLING COMPANY MEXICO, INC.
UTI DRILLING CANADA, INC.
XXXXXXXXX (LP) LLC
XXXXXXXXX (GP) LLC
XXXXXXXXX (GP2) LLC
By:
----------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance of each of the above Pledgors
UTI - PLEDGE AGREEMENT
UNIVERSAL WELL SERVICES, INC.
SUITS DRILLING COMPANY
By:
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President of each of the above Pledgors
XXXXXXXXX-UTI DRILLING COMPANY LP, LLLP
By: Xxxxxxxxx (GP) LLC, its general partner
By:
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance
XXXXXX XX, L.L.C.
By: Norton Drilling Services, Inc.,
Its sole member
By:
-------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance
AGENT:
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
UTI - PLEDGE AGREEMENT
EXHIBIT 10.3
The undersigned hereby each agrees that it will comply with all
instructions with respect to the Pledged Interests originated by Pledgee (and
not any other party, including without limitation all instructions of Pledgor)
regarding transfer of the Pledged Interests. The undersigned each further agrees
to comply with all such instructions without further consent by or notice to any
Pledgor. It is intended that this undertaking by the undersigned confer control
over the Pledged Interests on Pledgee for purposes of perfecting Pledgee's
security interest in the Pledged Interests under the Code.
XXXXXXXXX (LP) LLC XXXXXXXXX-UTI DRILLING COMPANY LP, LLLP
XXXXXXXXX (GP) LLC
XXXXXXXXX (GP2) LLC By: Xxxxxxxxx (GP) LLC, its general partner
By: By:
------------------------------------------------ ----------------------------------
Name: Xxxxxxxx X. Xxxxxx Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance of each of the above companies Title: Vice President-Finance
XXXXXXXXX PETROLEUM LP, LLLP XXXXXXXXX-UTI DRILLING COMPANY SOUTH LP, LLLP
By: Xxxxxxxxx (GP2) LLC., its general partner
By: Xxxxxxxxx (GP) LLC, its general partner
By:
By: ----------------------------------
------------------------------------------ Name: Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Title: Vice President-Finance
Title: Vice President-Finance
XXXXXXXXX-UTI DRILLING COMPANY WEST LP, LLLP
XXXXXXXXX PETROLEUM TRADING COMPANY LP, LLLP
By: Xxxxxxxxx (GP2) LLC, its general partner
By: Xxxxxxxxx (GP) LLC, its general partner
By:
By: ----------------------------------
------------------------------------------ Name: Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx Title: Vice President-Finance
Title: Vice President-Finance
LONE STAR MUD LP, LLLP
XXXXXX XX, L.L.C.
By: Xxxxxxxxx (GP) LLC, its general partner
By: Norton Drilling Services, Inc.,
Its sole member By:
----------------------------------
By: Name: Xxxxxxxx X. Xxxxxx
------------------------------------------ Title: Vice President-Finance
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance AMBAR DRILLING FLUIDS LP, LLLP
By: Xxxxxxxxx (GP) LLC, its general partner
By:
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President-Finance
UTI - PLEDGE AGREEMENT
EXHIBIT 10.3
SCHEDULE A
PLEDGED SECURITIES
PLEDGOR ISSUER OF SECURITIES DESCRIPTION OF SECURITIES
------- -------------------- -------------------------
Xxxxxxxxx-UTI Energy, Inc. UTICO, Inc. 1,000 shares of common stock
Xxxxxxxxx-UTI Energy, Inc. Xxxxxxxxx (GP) LLC 100% membership interest
Xxxxxxxxx-UTI Energy, Inc. Xxxxxxxxx (LP) LLC 100% membership interest
Xxxxxxxxx-UTI Energy, Inc. Norton Drilling Services, Inc. 1,000 shares of common stock
UTICO, Inc. Suits Drilling Company 3,000 shares of common stock
UTICO, Inc. International Petroleum Service 152 shares of A common stock
Company 142 shares of B common stock
UTICO, Inc. Universal Well Services, Inc. 894 shares of common stock
UTICO, Inc. UTICO Hard Rock Boring, Inc. 1,100 shares of common stock
7,600 shares of preferred stock
Norton Drilling Services, Inc. Xxxxxx XX, L.L.C. 100% membership interest
Xxxxxx XX, L.L.C. Norton Drilling, L.P. 1% general partnership interest
Norton Drilling Services, Inc. Norton Drilling, L.P. 99% limited partnership interest
UTI Drilling, L.P. UTI Drilling Canada, Inc. 1,000 shares of common stock
UTI Drilling Canada, Inc. Xxxxxx Drilling Co. 66 shares of common stock
Norton Drilling, X.X. Xxxxxx Drilling Company Mexico, Inc. 100 shares of common stock
UTICO Hard Rock Boring, Inc. UTI Management Services, L.P. 1% general partnership interest
UTICO, Inc. UTI Management Services, L.P. 99% limited partnership interest
UTICO Hard Rock Boring, Inc. UTI Drilling, L.P. 1% general partnership interest
UTICO, Inc. UTI Drilling, L.P. 99% limited partnership interest
Xxxxxxxxx (GP) LLC Ambar Drilling Fluids LP, LLLP 1% general partnership interest
Xxxxxxxxx (LP) LLC Ambar Drilling Fluids LP, LLLP 99% limited partnership interest
Xxxxxxxxx (GP) LLC Lone Star Mud LP, LLLP 1% general partnership interest
Xxxxxxxxx (LP) LLC Lone Star Mud LP, LLLP 99% limited partnership interest
Xxxxxxxxx (GP) LLC Xxxxxxxxx-UTI Drilling Company LP, 1% general partnership interest
LLLP
Xxxxxxxxx (LP) LLC Xxxxxxxxx-UTI Drilling 99% limited partnership
UTI - PLEDGE AGREEMENT
Company LP, LLLP interest
Xxxxxxxxx (GP) LLC Xxxxxxxxx Petroleum LP, LLLP 1% general partnership interest
Xxxxxxxxx (LP) LLC Xxxxxxxxx Petroleum LP, LLLP 99% limited partnership interest
Xxxxxxxxx (GP) LLC Xxxxxxxxx Petroleum Trading Company 1% general partnership interest
LP, LLLP
Xxxxxxxxx (LP) LLC Xxxxxxxxx Petroleum Trading Company 99% limited partnership interest
LP, LLLP
Xxxxxxxxx-UTI Drilling Xxxxxxxxx (GP2) LLC 100% membership interest
Company LP, LLLP
Xxxxxxxxx (GP2) LLC Xxxxxxxxx-UTI Drilling 1% general partnership interest
Company South LP, LLLP
Xxxxxxxxx-UTI Drilling Xxxxxxxxx-UTI Drilling 99% limited partnership
Company LP, LLLP Company South LP, LLLP interest
Xxxxxxxxx (GP2) LLC Xxxxxxxxx-UTI Drilling 1% general partnership interest
Company West LP, LLLP
Xxxxxxxxx-UTI Drilling Xxxxxxxxx-UTI Drilling 99% limited partnership
Company LP, LLLP Company West LP, LLLP interest
UTI - PLEDGE AGREEMENT
SCHEDULE B
INTERCOMPANY NOTES
That certain Revolving Credit Promissory Note dated May 2, 2000 payable by
Xxxxxx Drilling Co. to UTI Drilling Canada, Inc. in the original principal
amount of $30,000,000.
UTI - PLEDGE AGREEMENT
EXHIBIT 10.3
EXHIBIT 1
PLEDGE AMENDMENT
This Pledge Amendment, dated __________, is delivered pursuant
to Section 5 of the Agreement referred to below. The undersigned hereby agrees
that this Pledge Amendment may be attached to the Pledge Agreement, dated as of
April __ 2002, between the undersigned, certain other parties identified therein
and THE CIT GROUP/BUSINESS CREDIT, INC., as Agent (the "AGREEMENT"; capitalized
terms used herein and not defined have the meanings ascribed to them in the
Agreement) and that the Pledged Securities and/or Intercompany Notes listed on
this Pledge Amendment shall be deemed to be and shall become part of the Pledged
Collateral and shall secure all Secured Obligations.
-----------------------------------------
Pledgor
By:
-------------------------------------
Name:
-------------------------------
Title:
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UTI - PLEDGE AGREEMENT
