EXHIBIT 1
================================================================================
PLEDGE OF SHARES AGREEMENT
by and between
STT CROSSING LTD
and
UNITED OVERSEAS BANK LIMITED
================================================================================
MILBANK, TWEED, XXXXXX & XxXXXX LLP
TABLE OF CONTENTS
Section Page
------- ----
Section 1. Definitions..........................................................................................1
Section 2. Representations and Warranties.......................................................................3
Section 3. Collateral...........................................................................................6
Section 4. Further Assurances; Remedies.......................................................................7
4.01 Delivery and Other Perfection......................................................................7
4.02 Other Financing Statements and Security............................................................8
4.03 Preservation of Rights.............................................................................8
4.04 Certificated Securities............................................................................8
4.05 Payment Event, Etc.................................................................................8
4.06 Deficiency........................................................................................10
4.07 Removals, Etc.....................................................................................10
4.08 Private Sale......................................................................................10
4.09 Application of Proceeds...........................................................................10
4.10 Attorney-in-Fact..................................................................................11
4.11 Termination; Release..............................................................................11
Section 5. Miscellaneous.....................................................................................12
5.01 No Waiver.........................................................................................12
5.02 Notices...........................................................................................12
5.03 Expenses; Indemnification.........................................................................12
5.04 Amendments, Etc...................................................................................13
5.05 Successors and Assigns............................................................................13
5.06 Captions..........................................................................................13
5.07 Counterparts......................................................................................13
5.08 Governing Law; Jurisdiction; Consent to Service of Process........................................13
5.09 No Immunity.......................................................................................14
5.10 Agents and Attorneys-in-Fact; Affiliates..........................................................15
5.11 Disclosure of Information.........................................................................15
5.12 Severability......................................................................................16
Annex 1 Pledged Securities.....................................................................................18
Annex 2 List of Locations......................................................................................19
PLEDGE OF SHARES AGREEMENT dated as of December 18, 2004, by
and between STT Crossing Ltd, a corporation duly organized and validly existing
under the laws of Mauritius (the "Pledgor") and United Overseas Bank Limited
(together with its successors and assigns, the "Lender").
WHEREAS, STT Communications Ltd (the "Borrower") and the
Lender have entered into a Facility Agreement dated as of December 18, 2004 (as
amended from time to time, the "Facility Agreement"), whereby the Lender has
agreed to make available to the Borrower a credit facility of US$100,000,000
upon the terms and conditions therein contained;
WHEREAS, it is a condition to the Lender's obligation to grant
the Facility under the Facility Agreement that the Pledgor, as a wholly-owned
subsidiary of the Borrower, pledges certain of its shares of Global Crossing
Limited, a corporation organized under the laws of Bermuda (together with its
successors and assigns, the "Issuer"), as security for the amounts owing by the
Borrower under the Facility Agreement;
WHEREAS, in furtherance of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgor has agreed to pledge and grant a security interest in
the Collateral (as defined in Section 3(a) hereof) as security for the Secured
Obligations (as defined in Section 1 hereof);
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
(a) Terms defined in the Facility Agreement, and not defined
herein, shall have the respective meanings given to such terms in the Facility
Agreement. The term "Proceeds" shall have the meaning ascribed thereto in
Article 9 of the UCC and the term "Security Certificates" shall have the meaning
ascribed thereto in Article 8 of the UCC.
(b) In addition, as used herein:
"Collateral" shall have the meaning given to such term in
Section 3(a) hereof.
"Final Discharge Date" shall mean the date on which all the
Secured Obligations have been fully and irrevocably paid or discharged
and no further Secured Obligations are capable of becoming outstanding.
"Finance Document" shall have the meaning given to such term
in Clause 1.1 of the Facility Agreement.
"Global Crossing Exercise Shares" shall mean the Stock
Collateral that Singapore Technologies Telemedia Pte Ltd shall be
required to purchase pursuant to an exercise of the Put Option.
PLEDGE OF SHARES AGREEMENT
-2-
"Governmental Authority" shall mean any nation or government,
international or multi-national authority or government, or any state
or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, in each case, that exercises
jurisdiction over the Pledgor or the Collateral.
"Loan" shall have the meaning given to such term in Clause 1.1
of the Facility Agreement.
"Payment Event" shall mean an Event of Default as described in
Clause 21.1 of the Facility Agreement or any acceleration of maturity
of the Loans by the Lender pursuant to Clause 21.16 of the Facility
Agreement.
"Person" shall mean any natural person, corporation, limited
liability company, trust, joint venture, association, company,
partnership, Governmental Authority or other entity.
"Pledged Securities" shall have the meaning given to such term
in Section 3(a) hereof.
"Property" of any Person shall mean any property, assets or
revenues of such Person or any interest therein.
"Purchase Price" shall have the meaning given to such term in
the Put Option Agreement.
"Put Option" shall mean an option, exercisable at the Lender's
sole option, to require Singapore Technologies Telemedia Pte Ltd to
purchase all of the Stock Collateral in accordance with the terms of
the Put Option Agreement.
"Put Option Agreement" shall mean the Put Option Agreement
dated as of December 18, 2004 between the Lender and Singapore
Technologies Telemedia Pte Ltd.
"Related Parties" shall mean, with respect to any specified
Person, such Person's affiliates and the respective directors,
officers, employees, agents and advisors of such Person and such
Person's affiliates.
"Secured Obligations" shall mean, collectively, (a) all
moneys, debt and liabilities by the Borrower to the Lender under or in
connection with any Finance Document, whether now existing or hereafter
from time to time incurred or arising (in each case, whether alone or
jointly, or jointly and severally, with any other person, whether
actually or contingently, and whether as principal, surety or
otherwise) and (b) all present and future obligations of the Pledgor to
the Lender hereunder.
"Securities Act" shall mean the US Securities Act of 1933, as
amended.
PLEDGE OF SHARES AGREEMENT
-3-
"Solvent" shall mean, with respect to any Person at any time,
that (a) the fair value of the Property of such Person is greater than
the total amount of liabilities (including without limitation
contingent liabilities) of such Person, (b) the present fair saleable
value of the Property of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its
debts as they become absolute and matured, (c) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (d) such Person is not engaged in a business and
is not about to engage in a business for which such Person's Property
would constitute an unreasonably small capital.
"Stock Collateral" shall have the meaning given to such term
in Section 3(a)(ii) hereof.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York.
"US" shall mean the United States of America.
(c) The foregoing definitions shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation". The word "will" shall be
construed to have the same meaning and effect as the word "shall". Unless the
context requires otherwise (i) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended, restated,
supplemented or otherwise modified (subject to any restrictions on such
amendments, restatements, supplements or modifications set forth herein or
therein), (ii) references to any law, constitution, statute, treaty, regulation,
rule or ordinance (each a "law") refer to that law as amended from time to time
and include any successor law, (iii) any reference herein to any person
including the Lender shall be construed to include such person's successors and
permitted assigns and transferees and (iv) the words "herein", "hereof",
"hereto" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof.
Section 2. Representations and Warranties. The Pledgor
represents and warrants to the Lender that as of the date hereof:
(a) Power and Authority. It (i) is a corporation duly
organized and validly existing under the laws of Mauritius, (ii) has all
requisite corporate or other power, and has all material governmental licenses,
authorizations, consents and approvals necessary to own its assets and carry on
its business as now being or as proposed to be conducted, (iii) is qualified to
do business and is in good standing in all jurisdictions in which the nature of
the business conducted by it makes such qualification necessary, except, in each
case, as could not reasonably cause a Material Adverse Effect, (iv) has full
power, authority and legal right to make and
PLEDGE OF SHARES AGREEMENT
-4-
perform this Agreement and to grant the security interest created hereunder, (v)
is in material compliance with all applicable laws and regulations, and (vi) has
good title to all the Collateral, free and clear of any Security except for the
pledge and security interest created hereunder.
(b) Due Authorization, Etc. The making and performance by it
of this Agreement and all other documents and instruments to be executed and
delivered hereunder by the Pledgor have been duly authorized by all necessary
corporate action, and do not and will not contravene (i) the constitutive
documents of the Pledgor, (ii) any applicable law, decree, regulation, judgment,
award, injunction or similar legal restriction, as now in effect and applicable
to it, or (iii) any agreement or instrument or material contractual restriction
binding on or affecting the Pledgor or any of the Collateral, and do not and
will not result in the imposition of any Security on the Collateral, except the
Security created and arising under this Agreement.
(c) Governmental and Other Approvals. Except for (i) actions
that have been taken and (ii) consents which have been received, no license,
consent, authorization or approval or other action by, or notice to or filing or
registration with, any Governmental Authority (including without limitation any
foreign exchange approval), and no other third-party consent or approval, is
necessary for the due execution, delivery and performance by the Pledgor of this
Agreement or for the legality, validity or enforceability thereof against the
Pledgor, other than, (x) with respect to the foreclosure of the security
interest in, or subsequent resale of, the Collateral, the registration and
reporting requirements of the Securities Act and the US Securities and Exchange
Act of 1934, as amended and any similar US state blue sky laws (including
compliance with any restrictive legends relating thereto set forth on the
Collateral) and the possible application of any telecom and/or antitrust laws or
regulations in the United States or elsewhere and (y) with respect to continued
ownership (but not with respect to the ability to foreclose on the security
interest granted hereunder) of the Collateral, the possible application of the
US Exon-Xxxxxx Act, which may require a US person to be the beneficial owner of
the Collateral. No filing, registration or other action is required to be
accomplished under Mauritius law in order to cause the security interest created
by this Agreement in the Collateral to be a valid first and prior perfected
security interest therein.
(d) Legal Effect. This Agreement has been duly executed and
delivered by the Pledgor and is the legal, valid and binding obligation of the
Pledgor, enforceable against the Pledgor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability.
(e) Commercial Activity; Absence of Immunity. It is subject to
civil and commercial law with respect to its obligations under this Agreement,
and the making and performance of this Agreement by the Pledgor constitute
private and commercial acts rather than public or governmental acts. The Pledgor
is not entitled to any immunity on the ground of sovereignty or the like from
the jurisdiction of any court or from any action, suit, set-off or proceeding,
or the service of process in connection therewith, arising under this Agreement.
PLEDGE OF SHARES AGREEMENT
-5-
(f) Taxes. There is no income, stamp or other tax, levy,
assessment, impost, deduction or charge of any kind imposed by Mauritius (or any
municipality or other political subdivision or taxing authority thereof or
therein that exercises de facto or de jure power to impose such tax, levy,
assessment, impost, deduction or charge) either (i) on or by virtue of the
execution or delivery of this Agreement or (ii) on any payment to be made by the
Pledgor pursuant to this Agreement.
(g) Legal Form. This Agreement is in proper legal form under
the laws of Mauritius for the enforcement thereof against the Pledgor under such
law, and if this Agreement were stated to be governed by such law, it would
constitute a legal, valid and binding obligation of the Pledgor under such law,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability. All formalities required in Mauritius for the validity and
enforceability of this Agreement have been accomplished, and no taxes are
required to be paid and no notarization is required, for the validity and
enforceability thereof.
(h) Collateral. (i) It is the sole beneficial owner of the
Collateral in which it purports to grant a security interest pursuant to Section
3 hereof and (ii) the security interest created hereby constitutes a valid and
perfected security interest in the Collateral, subject to no equal or prior
Security.
(i) Changes in Circumstances. It has not (i) within the period
of four months prior to the date hereof, changed the location of its chief
executive office or the jurisdiction of its organization or had more than one
place of business or (ii) changed its name.
(j) Pledged Securities.
(i) The Pledged Securities evidenced by the
certificates identified in Annex 1 hereto are, and all other
Pledged Securities in which the Pledgor shall hereafter grant
a security interest pursuant to Section 3 will be, duly
authorized, validly existing, fully paid and non-assessable
and none of such Pledged Securities is or will be subject to
any contractual restriction, or any restriction under the
charter, by-laws or other organizational documents of the
Issuer, upon the transfer of such Pledged Securities.
(ii) Annex 1 hereto correctly identifies, as
at the date hereof, the Issuer, the class and par value of the
shares constituting the Pledged Securities and the number of
shares (and registered owners thereof) represented by each
such certificate, the principal amount and interest rate of
the convertible notes constituting the Pledged Securities and
the warrants constituting the Pledged Securities.
(k) Benefit to Pledgor. It acknowledges that it will derive
substantial benefit from the Secured Obligations.
PLEDGE OF SHARES AGREEMENT
-6-
(l) Solvency. It is, and after giving effect to the making of
the Loans and the use of proceeds thereof will be, Solvent.
Section 3. Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations whether now existing or hereafter from
time to time arising, the Pledgor hereby grants to the Lender a security
interest in all of the Pledgor's right, title and interest in, to and under the
following property, assets and revenues, whether now owned by the Pledgor or
hereafter acquired and whether now existing or hereafter coming into existence
(all of the property, assets and revenues described in this Section 3 being
collectively referred to herein as the "Collateral"):
(a) the shares of common and preferred stock of the Issuer
represented by the certificates identified in Annex 1 hereto under the name of
the Pledgor, in each case together with the certificates evidencing the same
(collectively, the "Pledged Securities"), together with:
(i) all shares, securities, moneys or
property representing a dividend on any of the Pledged
Securities, or representing a distribution or return of
capital upon or in respect of the Pledged Securities, or
resulting from a split-up, revision, reclassification or other
like change of the Pledged Securities or otherwise received in
exchange therefor, and any subscription warrants, rights or
options (collectively, the "Rights") issued to the holders of,
or otherwise in respect of, the Pledged Securities (provided,
that the Lender shall have the right, in its sole discretion,
to decline that a security interest in any or all such Rights
in whatever amount shall be granted hereunder, and if the
Lender so declines the grant of any such security interest, it
shall not effect any other rights whatsoever of the Lender
hereunder including, without limitation, requiring a
subsequent grant of a security interest in such Rights or
opting to accept a grant of a security interest in any future
Rights);
(ii) without affecting the obligations of
the Pledgor under any provision prohibiting such action
hereunder or under the Facility Agreement, in the event of any
consolidation or merger in which the Issuer is not the
surviving corporation, all of the shares of each class of the
capital stock of the successor corporation formed by or
resulting from such consolidation or merger received by the
Pledgor in respect of the Pledged Securities (the Pledged
Securities, together with all other certificates, shares,
securities, properties or moneys as may from time to time be
pledged hereunder pursuant to clause (i) above or this clause
(ii) and the proceeds of and to any such property and, to the
extent related to any such property or such proceeds, all
books, correspondence, credit files, records, invoices and
other papers being herein collectively called the "Stock
Collateral"); and
(b) all Proceeds, substitutions, additions to and replacements
of and to any of the Collateral and, to the extent related to any of the
foregoing, all books, correspondence, credit files, records, invoices and other
paper (including all tapes, cards, computer runs and other papers and documents
in the possession or under the control of the Pledgor or any computer bureau or
service company from time to time acting for the Pledgor). For the avoidance of
doubt
PLEDGE OF SHARES AGREEMENT
-7-
and notwithstanding any provision to the contrary herein, in the event the
Lender exercises its remedies hereunder, the Pledgor may retain copies of its
books and records as required or reasonably advisable to comply with applicable
law.
Section 4. Further Assurances; Remedies. In furtherance of
the grant of the pledge and security interest pursuant to Section 3 hereof, the
Pledgor hereby agrees with the Lender as follows:
4.01 Delivery and Other Perfection. The Pledgor shall:
(a) deliver to the Lender any and all Security Certificates
constituting part of the Collateral in which the Pledgor purports to grant a
security interest hereunder, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the Lender may reasonably
request (including appropriate dividend, distribution and other orders and
documents to that end) and the Lender (or its agent) shall hold such Security
Certificates in New York City; provided that so long as no Payment Event shall
have occurred and be continuing the Lender shall, promptly upon written request
of the Pledgor, make appropriate arrangements for making any Security
Certificates pledged by the Pledgor available to it for purposes of
presentation, collection, renewal or exercising powers of ownership pertaining
to the Stock Collateral including in connection with stock splits (any such
arrangement to be effected, to the extent deemed appropriate by the Lender,
against trust receipt or like document);
(b) if any of the shares, securities, moneys or property
required to be pledged by the Pledgor under Section 3 hereof are received by the
Pledgor, forthwith either (x) transfer and deliver to the Lender such shares,
securities, moneys or property so received by the Pledgor (together with the
certificates for any such shares and securities duly endorsed in blank or
accompanied by undated stock powers duly executed in blank), all of which
thereafter shall be held by the Lender, pursuant to the terms of this Agreement,
as part of the Collateral or (y) take such other action as the Lender shall deem
reasonably necessary or appropriate to duly record the Security created
hereunder in such shares, securities, moneys or property in said Section 3;
(c) give, execute, deliver, file, record, authorize or obtain
all such financing statements, notices, instruments, documents, agreements or
consents or other papers as may be necessary or desirable (in the reasonable
judgment of the Lender) to create, preserve, perfect or validate the security
interest granted pursuant hereto or to enable the Lender to exercise and enforce
its rights hereunder with respect to such pledge and security interest,
including registration of this Agreement with the Registrar of Companies in
Bermuda and, in the case of any exercise or enforcement of rights, causing any
or all of the Stock Collateral to be transferred of record into the name of the
Lender or its nominee (and the Lender agrees that if any Stock Collateral is
transferred into its name or the name of its nominee, the Lender will thereafter
promptly give to the Pledgor copies of any notices and communications received
by it with respect to the Stock Collateral); provided that nothing in this
Agreement shall entitle the Lender or otherwise to cause the Pledgor to register
any Collateral for public sale under applicable laws;
(d) keep full and accurate books and records relating to the
Collateral;
PLEDGE OF SHARES AGREEMENT
-8-
(e) furnish to the Lender from time to time such other
information as the Lender may reasonably request; and
(f) permit representatives of the Lender, upon reasonable
notice, at any time during normal business hours to inspect and make abstracts
from its books and records pertaining to the Collateral, and permit
representatives of the Lender to be present at the Pledgor's place of business
to receive copies of all communications and remittances relating to the
Collateral, and forward copies of any notices or communications received by the
Pledgor with respect to the Collateral.
4.02 Other Financing Statements and Security. Without the
prior written consent of the Lender, the Pledgor shall not file or suffer to be
on file, or authorize or permit to be filed or to be on file, in any
jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Lender is not named as the sole secured party.
4.03 Preservation of Rights. The Lender shall not be required
to take steps necessary to preserve any rights against prior parties to any of
the Collateral.
4.04 Certificated Securities.
(a) So long as no Payment Event shall have occurred and be
continuing, the Pledgor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Stock Collateral for all
purposes not inconsistent with the terms of this Agreement or the Facility
Agreement, provided that the Pledgor agrees that it will not vote the Stock
Collateral in any manner that is inconsistent with the terms of this Agreement
or the Facility Agreement; and the Lender shall execute and deliver to the
Pledgor or cause to be executed and delivered to the Pledgor all such proxies,
powers of attorney, dividend and other orders, and all such instruments, without
recourse, as the Pledgor may reasonably request in writing for the purpose of
enabling the Pledgor to exercise the rights and powers that it is entitled to
exercise pursuant to this Section 4.04(a).
(b) The Pledgor shall procure that all dividends, interest or
any other amounts on the Pledged Securities in the form of cash shall be paid to
the Dividend Account and shall be otherwise used in accordance with the STT
Crossing Charge over Accounts.
4.05 Payment Event, Etc. Upon the occurrence and during the
continuance of a Payment Event:
(a) the Lender may make any compromise or settlement deemed
desirable with respect to any of the Collateral and may extend the time of
payment, arrange for payment in installments, or otherwise modify the terms of,
any of the Collateral;
(b) the Lender shall have all of the rights and remedies with
respect to the Collateral of a secured party under the UCC (whether or not the
UCC is in effect in the
PLEDGE OF SHARES AGREEMENT
-9-
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted, including the right, to the maximum extent permitted by law, to
exercise all voting, consensual and other powers of ownership pertaining to the
Collateral as if the Lender were the sole and absolute owner thereof (and the
Pledgor agrees to take all such action as may be appropriate to give effect to
such right);
(c) the Lender in its discretion may, in its name or in the
name of the Pledgor or otherwise, demand, xxx for, collect or receive any money
and property and all other general intangibles whatsoever, at any time payable
or receivable on account of or in exchange for any of the Collateral, but shall
be under no obligation to do so;
(d) the Lender in its discretion, may sell the Pledged
Securities pursuant to the STT Put Option; and
(e) the Lender may, upon 10 Business Days' prior written
notice to the Pledgor of the time and place, with respect to the Collateral or
any part thereof that shall then be or shall thereafter come into the
possession, custody or control of the Lender or any of its agents, sell, lease,
assign or otherwise dispose of all or any part of such Collateral, at such place
or places as the Lender chooses, and for cash or for credit or for future
delivery (without thereby assuming any credit risk), at public or private sale,
without demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is required
above or by applicable statute and cannot be waived), and the Lender or anyone
else may be the purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent permitted by
law, at any private sale) and thereafter hold the same absolutely, free from any
claim or right of whatsoever kind, including any right or equity of redemption
(statutory or otherwise) of the Pledgor, any such demand, notice and right or
equity being hereby expressly waived and released. The Lender may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
the sale, and such sale may be made at any time or place to which the sale may
be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
4.05 shall be applied in accordance with Section 4.09 hereof.
The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act, and applicable state securities laws, the
Lender may be compelled, with respect to any sale of all or any part of the
Collateral, to limit purchasers to those who will agree, among other things, to
acquire the Collateral for their own account, for investment and not with a view
to the distribution or resale thereof. The Pledgor acknowledges that any such
private sales may be at prices and on terms less favorable to the Lender than
those obtainable through a public sale without such restrictions, and,
notwithstanding such circumstances, agrees that any such private sale shall be
deemed to have been made in a commercially reasonable manner and that the Lender
shall have no obligation to engage in public sales and no obligation to delay
the sale of
PLEDGE OF SHARES AGREEMENT
-10-
any Collateral for the period of time necessary to permit the respective Issuer
or issuer thereof to register it for public sale.
The Pledgor also hereby agrees with and acknowledges to the
Lender that:
(a) in exercising the Lender's rights under the Put Option,
the Purchase Price for each Global Crossing Exercise Share shall be the Purchase
Price and the Lender shall not have any duty or obligation whatsoever to obtain
any other price for such Global Crossing Exercise Share; and
(b) in exercising the Put Option in respect of any Global
Crossing Exercise Shares, the Lender shall have and be entitled to the same
rights as if it were the ultimate beneficial owner of such Global Crossing
Exercise Shares.
4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 4.05 hereof are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Borrower and the Pledgor shall remain
liable for any deficiency.
4.07 Removals, Etc. Without at least 30 days' prior written
notice to the Lender, the Pledgor shall not change the jurisdiction of its
organization or its name from the name shown on the signature pages hereto.
Annex 2 hereto correctly specifies (i) the location of the place of business of
the Pledgor and (ii) the jurisdiction of organization of the Pledgor during the
period of four months ending on the date hereof.
4.08 Private Sale. The Lender shall incur no liability as a
result of the sale of the Collateral, or any part thereof, at any private sale
pursuant to Section 4.05 hereof conducted in a commercially reasonable manner.
The Pledgor hereby waives any claims against the Lender arising by reason of the
fact that the price at which the Collateral may have been sold at such a private
sale was less than the price that might have been obtained at a public sale or
was less than the aggregate amount of the Secured Obligations, even if the
Lender accepts the first offer received and does not offer the Collateral to
more than one offeree.
4.09 Application of Proceeds. Except as otherwise expressly
provided herein and except as provided below in this Section 4.09, the Proceeds
of any collection, sale or other realization of all or any part of the
Collateral pursuant hereto, and any other cash at the time held by the Lender
under this Section 4, shall be applied by the Lender:
first, in or towards payment of any unpaid fees, costs,
expenses and liabilities (including any interest thereon as provided in the
Security Documents) incurred by or on behalf of the Lender (or any adviser,
receiver, delegate, attorney or agent) and the remuneration of the Lender (or
any adviser, receiver, delegate, attorney or agent) in connection with carrying
out its duties or exercising powers or discretions under the Finance Documents
or this Agreement;
PLEDGE OF SHARES AGREEMENT
-11-
second, in or towards payment to the Lender without any
preference or priority whatsoever of the balance of the Secured Obligations; and
third, after the Final Discharge Date, in payment of the
surplus (if any) to the Pledgor or other person entitled thereto;
provided that any and all payments by or on account of any obligation of the
Pledgor hereunder shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority; provided further that if the
Pledgor shall be required to deduct any taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Lender receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Pledgor shall make such deductions and (iii) the Pledgor shall pay the full
amount deducted to the relevant Governmental Authority in accordance with
applicable law.
4.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Lender while no Payment Event has occurred and
is continuing, upon the occurrence and during the continuance of any Payment
Event the Lender is hereby appointed the attorney-in-fact of the Pledgor, with
full authority in the place and stead of the Pledgor, and in the name of the
Pledgor or otherwise, and at the Pledgor's expense, for the purpose of carrying
out the provisions of this Section 4 and taking any action and executing any
instruments that the Lender may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing, so
long as the Lender shall be entitled under this Section 4 to make collections in
respect of the Collateral, the Lender shall have the right and power to receive,
endorse and collect all checks made payable to the order of the Pledgor
representing any dividend, payment or other distribution in respect of the
Collateral or any part thereof and to give full discharge for the same.
4.11 Termination; Release. When all Secured Obligations shall
have been finally paid in full whether pursuant to exercise of the Put Option or
otherwise and the Commitments of the Lender under the Facility Agreement shall
have expired or been terminated, this Agreement shall terminate, and the Lender
shall, upon written request, cause to be assigned, transferred and delivered,
against receipt but without any recourse, warranty or representation whatsoever,
any remaining Collateral and money received in respect thereof, to or on the
order of the Pledgor. The Lender shall also, upon written request, execute and
deliver to the Pledgor upon such termination such UCC termination statements, as
shall be reasonably requested in writing by the Pledgor to effect the
termination and release of the Security on the Collateral.
PLEDGE OF SHARES AGREEMENT
-12-
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Lender to
exercise, and no course of dealing with respect to, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise by the Lender of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies herein are cumulative and are not
exclusive of any remedies provided by law.
5.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and faxed or otherwise delivered to the intended
recipient at its address and/or facsimile numbers specified pursuant to Clause
27 of the Facility Agreement and shall be deemed to have been given at the times
specified in said Clause.
5.03 Expenses; Indemnification.
(a) The Pledgor agrees to reimburse the Lender for all of its
costs and expenses (including the fees and expenses of legal counsel) in
connection with (i) any Default and any enforcement or collection proceeding
resulting therefrom, including all manner of participation in or other
involvement with (w) performance by the Lender of any obligations of the Pledgor
in respect of the Collateral that the Pledgor has failed or refused to perform,
(x) bankruptcy, insolvency, receivership, foreclosure, winding up or liquidation
proceedings, or any actual or attempted sale, or any exchange, enforcement,
collection, compromise or settlement in respect of any of the Collateral, and
for the care of the Collateral and defending or asserting rights and claims of
the Lender in respect thereof, by litigation or otherwise, including expenses of
insurance, (y) judicial or regulatory proceedings and (z) workout, restructuring
or other negotiations or proceedings (whether or not the workout, restructuring
or transaction contemplated thereby is consummated) and (ii) the enforcement of
this Section 5.03, and all such costs and expenses shall be Secured Obligations
entitled to the benefits of the collateral security provided pursuant to Section
3 hereof.
(b) The Pledgor agrees to indemnify the Lender and each
Related Party of the Lender (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, the performance by the parties hereto
of their respective obligations hereunder or the consummation of the
transactions contemplated hereby or (ii) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
PLEDGE OF SHARES AGREEMENT
-13-
(c) To the extent permitted by applicable law, the Pledgor
shall not assert, and the Pledgor hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or
punitive damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement.
(d) All amounts due under this Section 5.03 shall be payable
promptly after written demand therefor.
(e) All indemnified amounts recoverable by an Indemnitee under
this Section 5.03 shall be net of recoveries, contributions, indemnification or
other similar payments from third Persons to the extent actually received in
cash by such Indemnitee (including but not limited to any insurance proceeds).
Any such amounts received in cash by an Indemnitee with respect to any indemnity
claim after it has received an indemnity payment hereunder shall be promptly
paid over to the Pledgor; provided that the Indemnitee shall not be obligated to
pay over any such amount in excess of the amount paid by the Pledgor to the
Indemnitee.
5.04 Amendments, Etc. The terms of this Agreement may be
waived, altered or amended only by an instrument in writing duly executed by the
Pledgor and the Lender (in accordance with the terms of the Facility Agreement).
Any such amendment or waiver shall be binding upon the Lender and the Pledgor.
5.05 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the respective successors and assigns of the
Pledgor and the Lender (provided however that the Pledgor shall not assign or
transfer its rights hereunder without the prior written consent of the Lender
and provided further that the Lender may only assign or transfer its rights
hereunder in accordance with the Facility Agreement).
5.06 Captions. The captions and section headings appearing
herein are included solely for convenience of reference and are not intended to
affect the interpretation of any provision of this Agreement.
5.07 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument and either of the parties hereto may execute this Agreement by
signing any such counterpart. Delivery of an executed counterpart of a signature
page of this Agreement shall be effective as delivery of a manually executed
counterpart of this Agreement.
5.08 Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its Property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of
PLEDGE OF SHARES AGREEMENT
-14-
New York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court (or, to the
extent permitted by law, in such Federal court). Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Lender may otherwise have to bring any action or proceeding
relating to this Agreement against the Pledgor or its properties in the courts
of any jurisdiction.
(c) The Pledgor hereby agrees that service of all writs,
process and summonses in any such suit, action or proceeding brought in the
State of New York may be made upon CT Corporation, presently located at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Process Agent"), and the Pledgor
hereby confirms and agrees that the Process Agent has been duly and irrevocably
appointed as its agent and true and lawful attorney-in-fact in its name, place
and stead to accept such service of any and all such writs, process and
summonses, and agrees that the failure of the Process Agent to give any notice
of any such service of process to the Pledgor shall not impair or affect the
validity of such service or of any judgment based thereon. The Pledgor hereby
further irrevocably consents to the service of process in any suit, action or
proceeding in such courts by the mailing thereof by the Lender by registered or
certified mail, postage prepaid, at its address set forth beneath its signature
hereto. Such appointment shall be irrevocable as long as this Agreement has not
been terminated in accordance with Section 4.12(a) hereof, except that if for
any reason the Process Agent appointed hereby ceases to act as such, the Pledgor
will, by an instrument reasonably satisfactory to the Lender, appoint another
Person in the Borough of Manhattan, New York as such Process Agent subject to
the approval of the Lender (not to be unreasonably withheld). The Pledgor
covenants and agrees that it shall take any and all reasonable action, including
the execution and filing of any and all documents, that may be necessary to
continue the designation of a Process Agent pursuant to this Section 5.08(c) in
full force and effect and to cause the Process Agent to act as such.
(d) Nothing herein shall in any way be deemed to limit the
ability of the Lender to serve any such writs, process or summonses in any other
manner permitted by applicable law or to obtain jurisdiction over the Pledgor in
such other jurisdictions, and in such manner, as may be permitted by applicable
law.
(e) The Pledgor hereby irrevocably waives any objection that
it may now or hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in the Supreme
Court of the State of New York, County of New York or in the United States
District Court of the Southern District of New York, and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
5.09 No Immunity. To the extent that the Pledgor may be or
become entitled, in any jurisdiction in which judicial proceedings may at any
time be commenced with respect to
PLEDGE OF SHARES AGREEMENT
-15-
this Agreement, to claim for itself or its properties or revenues any immunity
from suit, court jurisdiction, attachment prior to judgment, attachment in aid
of execution of a judgment, execution of a judgment or from any other legal
process or remedy relating to its obligations under this Agreement, and to the
extent that in any such jurisdiction there may be attributed such an immunity
(whether or not claimed), the Pledgor hereby irrevocably agrees not to claim and
hereby irrevocably waives such immunity to the fullest extent permitted by the
laws of such jurisdiction.
5.10 Agents and Attorneys-in-Fact; Affiliates.
(a) The Lender may employ agents and attorneys-in-fact in
connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(b) In order to enable to bring relevant expertise to bear on
its engagement under this Agreement from among its global affiliates, the
Pledgor agrees that the Lender may share information obtained from the Pledgor
hereunder with its affiliates, and may perform the services contemplated hereby
in conjunction with its affiliates, and that any affiliates performing services
hereunder shall be entitled to the benefits and subject to the terms of this
Agreement.
5.11 Disclosure of Information.
The Lender and any of its officers (as defined in the Banking
Act, Chapter 19 of Singapore (the "Banking Act")) may disclose to:
(a) its head office, branches, Subsidiaries or Affiliates;
(a) any person to (or through) whom the Lender assigns or
transfers (or may potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) any person with (or through) whom the Lender enters into
(or may potentially enter into) any sub-participation in relation to, or any
other transaction under which payments are to be made by reference to, this
Agreement or the Pledgor;
(c) any person to whom, and to the extent that, information is
required to be disclosed by any applicable law or regulation; or
(d) any person who is a person, or who belongs to a class of
persons, specified in the second column of Part II of the Third Schedule to the
Banking Act:
(i) for any one or more of the purposes set
out in the first column of items 1, 2, 3 and 4 of Part II of
the Third Schedule to the Banking Act; or
(ii) for any one or more of the purposes set
out in the first column of item 8 of Part II of the Third
Schedule to the Banking Act, where such disclosure is in
PLEDGE OF SHARES AGREEMENT
-16-
connection with any one or more of the purposes set out in the
first column of item 5 of Part II of the Third Schedule to the
Banking Act, any customer information (as defined in the
Banking Act), any other information about the Pledgor and this
Agreement or any other information relating to or in
connection with the Facility as the Lender (acting reasonably)
shall consider appropriate for any such purposes as it thinks
fit.
This Section 5.11 is not, and shall not be deemed to
constitute, an express or implied agreement by the Lender with the Pledgor for a
higher degree of confidentiality (unless otherwise agreed) than that described
in Section 47 of the Banking Act and in the Third Schedule to the Banking Act.
5.12 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Lender in order to
carry out the intentions of the parties hereto as nearly as may be possible and
(ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
PLEDGE OF SHARES AGREEMENT
-17-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
STT CROSSING LTD
By
------------------------
Name:
Title:
Address for notices: x/x XXX Xxxxxxxxxxxxxx Ltd.
00 Xxxxxxx Xxxx #00-00/00
Xxxxxxx Xxxxxx
Xxxxxxxxx 000000
Fax No.: x00 0000 0000
Attention: General Counsel
UNITED OVERSEAS BANK LIMITED, as Lender
By
------------------------
Name:
Title:
Address for notices: 0 Xxxxxxx Xxxxx
#00-00 XXX Xxxxxx
Xxxxxxxxx 000000
Fax No.: x00 0000 0000/6538 2449
Attention: Seah Xxxx Xxx/Xxxxxxx Xxxx
PLEDGE OF SHARES AGREEMENT
-18-
ANNEX 1
PLEDGED SECURITIES
[See Section 2(j)]
Issuer Certificate No. Registered Owner Number of Shares
------ --------------- ---------------- ----------------
Global Crossing Limited GC 0001 PLEDGOR 1,320,000 common shares, par
value $0.01
Global Crossing Limited GC 0002 PLEDGOR 1,320,000 common shares, par
value $0.01
Global Crossing Limited GC 0003 PLEDGOR 1,320,000 common shares, par
value $0.01
Global Crossing Limited GC 0004 PLEDGOR 1,320,000 common shares, par
value $0.01
Global Crossing Limited GC 0005 PLEDGOR 1,320,000 common shares, par
value $0.01
Global Crossing Limited GC #004 PLEDGOR 3,600,000 preferred shares, par
value $0.10, convertible into
approximately 3,600,000 common
shares
Global Crossing Limited GC #006 PLEDGOR 1,400,000 preferred shares, par
value $0.10, convertible into
approximately 1,400,000 common
shares
ANNEX 1 TO PLEDGE OF SHARES AGREEMENT
-19-
ANNEX 2
LIST OF LOCATIONS
[See Section 4.07.]
STT Crossing Ltd, a Mauritius company
x/x XXX Xxxxxxxxxxxxxx Ltd.
00 Xxxxxxx Xxxx #00-00/00
Xxxxxxx Xxxxxx
Xxxxxxxxx 000000
ANNEX 2 TO PLEDGE OF SHARES AGREEMENT
