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PLEDGE AGREEMENT
dated as of December 27, 1995
Among
S.A. XXXXX XXXXXXX ET CIE
and
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF
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TABLE OF CONTENTS
Page
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ARTICLE 1 SECURITY INTEREST . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Grant of Security Interest; Subordination. . . . . . . . 1
Section 1.02. Validity and Priority of Security Interest . . . . . . . 1
Section 1.03. Maintenance of Status of Security
Interest, Collateral and Rights. . . . . . . . . . . . . 2
(a) Required Action . . . . . . . . . . . . . . . . . . . 2
(b) Authorized Action . . . . . . . . . . . . . . . . . . 2
Section 1.04. Evidence of Status of Security Interest. . . . . . . . . . 2
Section 1.05. Pledgor Remains Obligated;
Principals Not Obligated . . . . . . . . . . . . . . . . 2
Section 1.06. Authorization of Agent to Take Action. . . . . . . . . . 2
ARTICLE 2 CERTAIN REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . 3
Section 2.01. Organization; Power; Qualification . . . . . . . . . . . 3
Section 2.02. Authorization; Enforceability;
Required Consents; Absence of
Conflicts; Ownership of Collateral . . . . . . . . . . . 4
Section 2.03. Corporate and Trade Names. . . . . . . . . . . . . . . . 4
Section 2.04. Identity and Corporate Structure . . . . . . . . . . . . 4
Section 2.05. Location of Chief Executive Office
Books and Records. . . . . . . . . . . . . . . . . . . . 4
ARTICLE 3 CERTAIN COVENANTS . . . . . . . . . . . . . . . . . . . . . . 5
A. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3.01. Financing Statements . . . . . . . . . . . . . . . . . . 5
Section 3.02. Preservation of Existence and
Franchises, Scope of Business,
Compliance with Law, Preservation of Enforceability. . . 5
Section 3.03. Ownership and Defense of Collateral. . . . . . . . . . . 5
Section 3.04. Taxes; Compliance. . . . . . . . . . . . . . . . . . . . 5
Section 3.05. Notice of Materially Adverse Effect. . . . . . . . . . . 5
Section 3.06. Requested Information. . . . . . . . . . . . . . . . . . 6
B. Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.07. Status of Securities . . . . . . . . . . . . . . . . . . 6
Section 3.08. Certain Rights of Agent and Pledgor. . . . . . . . . . . 6
Section 3.09. Distributions. . . . . . . . . . . . . . . . . . . . . . 7
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Section 3.10. No Amendments Etc. of Securities . . . . . . . . . . . . 7
ARTICLE 4 EVENT OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . . 8
A. Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.01. Application of Proceeds. . . . . . . . . . . . . . . . . 8
B. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.02. General. . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) Power of Sale . . . . . . . . . . . . . . . . . . . . 8
(b) Foreclosure . . . . . . . . . . . . . . . . . . . . . 9
Section 4.03. (a) Agent's Rights with Respect to
Proceeds and Other Collateral . . . . . . . . . . . . 9
(b) Enforcement by Agent. . . . . . . . . . . . . . . . . 9
(c) Adjustments . . . . . . . . . . . . . . . . . . . . .10
Section 4.04. Disposition of Securities. . . . . . . . . . . . . . . . .10
(a) Registration and Indemnification. . . . . . . . . . .10
(b) Restricted Offering Dispositions. . . . . . . . . . .10
ARTICLE 5 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . .11
Section 5.01. Expenses of Pledgor's Agreements and Duties. . . . . . . .11
Section 5.02. Agent's Right to Perform on Pledgor's Behalf . . . . . . .11
Section 5.03. Agent's Right to Use Agents and to
Act in Name of Pledgor . . . . . . . . . . . . . . . . . .11
Section 5.04. No Interference; Compensation or Expense . . . . . . . . .11
Section 5.05. Limitation of Obligations with Respect to Collateral . . .11
Section 5.06. Rights of Agent under Uniform
Commercial Code and Applicable Law . . . . . . . . . . . .12
Section 5.07. Waivers of Rights Inhibiting Enforcement . . . . . . . . .12
Section 5.08. Power of Attorney. . . . . . . . . . . . . . . . . . . . 13
Section 5.09. Termination of Security Interest . . . . . . . . . . . . 14
Section 5.10. Notices and Deliveries . . . . . . . . . . . . . . . . . 14
(a) Notices and Materials Other
than Collateral . . . . . . . . . . . . . . . . . . .14
(b) Collateral. . . . . . . . . . . . . . . . . . . . . .16
Section 5.11. Expenses; Indemnification. . . . . . . . . . . . . . . . .16
Section 5.12. Amounts Payable Due Upon Request for Payment . . . . . . .18
Section 5.13. Interest . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.14. Payments by the Pledgor. . . . . . . . . . . . . . . . . .18
(a) Time, Place and Manner. . . . . . . . . . . . . . . .18
(b) No Reductions . . . . . . . . . . . . . . . . . . . .18
(c) Taxes . . . . . . . . . . . . . . . . . . . . . . . .19
(d) Authorization to Charge Bank Accounts . . . . . . . .20
(e) Extension of Payment Dates. . . . . . . . . . . . . .21
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Section 5.15. Remedies of the Essence. . . . . . . . . . . . . . . . . 21
Section 5.16 Rights Cumulative. . . . . . . . . . . . . . . . . . . . 21
Section 5.17 Amendments; Waivers. . . . . . . . . . . . . . . . . . . 21
Section 5.18 Assignments and Participations . . . . . . . . . . . . . 21
(a) Assignments . . . . . . . . . . . . . . . . . . . . 21
(b) Participations. . . . . . . . . . . . . . . . . . . 22
(c) Rights of Assignees and Participants. . . . . . . . 22
Section 5.19 Relationship Among Banks and with Agent. . . . . . . . . 23
Section 5.20. Governing Law. . . . . . . . . . . . . . . . . . . . . . 23
Section 5.21. Judicial Proceedings; Waiver of Jury Trial . . . . . . . 23
Section 5.22. LIMITATION OF LIABILITY. . . . . . . . . . . . . . . . . 23
Section 5.23. Severability of Provisions . . . . . . . . . . . . . . . 24
Section 5.24. Counterparts . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.25 Survival of Obligations. . . . . . . . . . . . . . . . . 24
Section 5.26 Entire Agreement . . . . . . . . . . . . . . . . . . . . 24
Section 5.27 Successors and Assigns . . . . . . . . . . . . . . . . . 25
Section 5.28. Reasonableness . . . . . . . . . . . . . . . . . . . . . 25
Section 5.29. Inconsistency. . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE 6 INTERPRETATION. . . . . . . . . . . . . . . . . . . . . . . . 25
Section 6.01. Definitional Provisions. . . . . . . . . . . . . . . . . 25
(a) Certain Terms Defined by Reference. . . . . . . . . 25
(b) Other Defined Terms . . . . . . . . . . . . . . . . 25
Section 6.02. Other Interpretative Provisions. . . . . . . . . . . . . 34
Section 6.03. Representations and Warranties . . . . . . . . . . . . . 36
Section 6.04. Captions . . . . . . . . . . . . . . . . . . . . . . . . 36
Schedule 1.03 Schedule of Required Action
Exhibit 1 Notice to Collateral Agent
Schedule 1.03(a) Standard Form UCC-1
Annex A Annex A to UCC-1 Financing Statement
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PLEDGE AGREEMENT
Dated as of December 27, 1995
In consideration of the execution and delivery of the Credit Agreement
by the banks listed on the signature pages thereof and Societe Generale, as
Agent, S.A. Xxxxx Xxxxxxx et Cie, a French corporation, hereby agrees with
Societe Generale and Banque Nationale de Paris as follows (with certain terms
used herein being defined in Article 6):
ARTICLE 1
SECURITY INTEREST
Section 1.01. GRANT OF SECURITY INTEREST; SUBORDINATION. (a) To
secure the payment, observance and performance of the Secured Obligations, the
Pledgor hereby mortgages, pledges and assigns the Collateral to the Secured
Parties, and grants to the Secured Parties a continuing security interest in,
and a continuing lien upon, the Collateral. The Collateral shall secure the
amount of the Secured Obligations owing to the Secured Parties PARI PASSU in
accordance with the amount of such Secured Obligations owing to each Secured
Party.
(b) Notwithstanding anything to the contrary in this Agreement and
notwithstanding the date, manner or order of perfection of the Security Interest
and the Senior Security Interest, the parties hereto agree that (i) the Security
Interest in the Subordinate Collateral and all rights and remedies granted
hereby to the Secured Parties with respect to the Subordinate Collateral shall
be subordinate in right and second in priority to the Senior Security Interest
and all other rights and remedies granted by the Pledgor to the Senior Secured
Parties with respect to the Subordinate Collateral pursuant to the Senior Pledge
Agreement, and (ii) the Secured Parties shall not sell, collect, foreclose or
otherwise realize upon the Subordinate Collateral or exercise any of their other
rights or remedies hereunder with respect to the Subordinate Collateral.
Section 1.02. VALIDITY AND PRIORITY OF SECURITY INTEREST. The
Pledgor agrees that the Security Interest shall at all times be valid, perfected
and enforceable against the Pledgor and all third parties, in accordance with
the terms hereof, as security for the Secured Obligations, and that the
Collateral shall not at any time be subject to any Lien, other than a Permitted
Lien, that is prior to, on a parity with or junior to such Security Interest,
except that, unless an Event of Default exists, this Section 1.02 (a) shall not
require the continuation of the perfection of the Security Interest in Ordinary
Distributions that the Pledgor is entitled to, and does, receive and retain
pursuant to Section 3.09(a), and (b) insofar as it requires the Security
Interest to be perfected and enforceable against all third parties, shall not
apply to Collateral having a book value on any date, in the aggregate from the
Agreement Date to the date in question, of not in excess of $250,000.
Section 1.03. MAINTENANCE OF STATUS OF SECURITY INTEREST, COLLATERAL
AND RIGHTS. (a) REQUIRED ACTION. The Pledgor shall take all action, including
the actions specified on SCHEDULE 1.03, that may be necessary or desirable, or
that the Agent may request, so as at all times (i) to maintain the validity,
perfection, enforceability and priority of the Security Interest in the
Collateral in conformity with the requirements of Section 1.02, (ii) to protect
and preserve the Collateral and (iii) to protect and preserve, and to enable the
exercise or enforcement of, the rights of the Agent and the other Secured
Parties therein and hereunder and under the other Loan Documents.
(b) AUTHORIZED ACTION. The Agent is hereby authorized to file one or
more financing or continuation statements or amendments thereto without the
signature of or in the name of the Pledgor. A carbon, photographic or other
reproduction of this Agreement or of any financing statement filed in connection
with this Agreement shall be sufficient as a financing statement.
Section 1.04. EVIDENCE OF STATUS OF SECURITY INTEREST. The Pledgor
shall from time to time, upon the request of the Agent, deliver to the Agent
such opinions of counsel relating to the Collateral, the attachment and
perfection of the Security Interest and otherwise to this Agreement, as the
Agent may designate.
Section 1.05. PLEDGOR REMAINS OBLIGATED; PRINCIPALS NOT OBLIGATED.
The grant by the Pledgor to the Secured Parties of the Security Interest shall
not (a) relieve the Pledgor of any Liability to any Person under or in respect
of any of the Collateral or (b) impose on the Agent or the other Secured Parties
any such Liability or any Liability for any act or omission on the part of the
Pledgor relative thereto.
Section 1.06. AUTHORIZATION OF AGENT TO TAKE ACTION. (a) Each
Secured Party agrees that Societe Generale, in its capacity as Agent, may, on
behalf of such Secured Party, take such actions with respect to the Collateral
as are required or permitted under the Credit Agreement or as the Agent
otherwise deems necessary or desirable, including but not limited to all action,
deemed
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necessary or desirable by the Agent to release any Collateral pursuant to
Article 6 of the Credit Agreement.
(b) In furtherance and not in limitation of the foregoing, each
Secured Party agrees that Societe Generale, in its capacity as Agent, may, on
behalf of such Secured Party (i) execute and file UCC-1 Financing Statements
with respect to the Collateral in substantially the form attached hereto as
SCHEDULE 1.03 in such locations as the Agent deems necessary or desirable, (ii)
amend, continue or terminate such UCC-1 Financing Statements in such manner and
at such times as the Agent deems necessary or desirable in connection with any
action permitted or required under the Credit Agreement, including but not
limited to in connection with any release of Collateral pursuant to Article 6 of
the Credit Agreement, (iii) return to the Pledgor or its nominee or designee, in
connection with any action permitted or required under the Credit Agreement,
including but not limited to in connection with any release of Collateral
pursuant to Article 6 of the Credit Agreement, any stock certificates, stock
powers or other instruments or other documents constituting or relating to the
Collateral in the possession of the Agent or its nominee or designee, (iv)
execute and deliver such amendments to, or waivers or termination of, this
Agreement and the Subordinate Assignment and Assumption Agreement as the Agent
deems necessary or desirable in connection with any action permitted or required
under the Credit Agreement, including but not limited to in connection with any
release of Collateral pursuant to Article 6 of the Credit Agreement and (v) take
any other action which is required or permitted to be taken by it hereunder
(including but not limited to pursuant to the power of attorney granted to the
Agent by the Pledgor in Section 5.08) or under the Credit Agreement, the
Subordinate Assignment and Assumption Agreement or any other Loan Document.
ARTICLE 2
CERTAIN REPRESENTATIONS AND WARRANTIES
The Pledgor represents and warrants as follows:
Section 2.01. ORGANIZATION; POWER; QUALIFICATION. The Pledgor is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, has the corporate power and authority to
own its property and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and in good standing as a foreign
corporation, and is authorized to do business, in all jurisdictions in which the
character of its property or the nature of its business requires such
qualification or
3
authorization, except for qualifications and authorizations the lack of
which, singly and in the aggregate, has not had and will not have a
Materially Adverse Effect on the Pledgor or the Collateral.
Section 2.02. AUTHORIZATION; ENFORCEABILITY; REQUIRED CONSENTS;
ABSENCE OF CONFLICTS; OWNERSHIP OF COLLATERAL. The Pledgor has the power, and
has taken all necessary action (including any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with their
respective terms the Collateral Documents. This Agreement has been duly
executed and delivered by the Pledgor and is, and each of the other Collateral
Documents when delivered to the Agent will be, the legal, valid and binding
obligation of the Pledgor, enforceable in accordance with its terms. The
execution, delivery and performance in accordance with their respective terms by
the Pledgor of the Collateral Documents does not and (absent any change in any
Applicable Law or applicable Contract) will not (a) require any Governmental
Approval or any other consent (other a consent which has been obtained) or
approval, including any consent or approval of any Subsidiary of the Pledgor or
any consent or approval of the stockholders of the Pledgor or any of its
Subsidiaries, or (b) violate or conflict with, result in a breach of, constitute
a default under, or result in or require the creation of any Lien (other than
the Security Interest) upon any assets of the Pledgor under, (i) any Contract to
which the Pledgor or any of its Subsidiaries is a party or by which the Pledgor
or any of its Subsidiaries or any of their respective properties may be bound or
(ii) any Applicable Law. The Pledgor is the owner of the Collateral free from
any right, title or interest of any third Person, other than the Senior Security
Interest.
Section 2.03. CORPORATE AND TRADE NAMES. (a) The Pledgor does not
do and has never done business under any name other than "S.A. Xxxxx Xxxxxxx et
Cie", which is the corporate name of the Pledgor as it appears in its
certificate of incorporation.
(b) The Pledgor does not use and has never used any trade names or
trade styles.
Section 2.04. IDENTITY AND CORPORATE STRUCTURE. The Pledgor has not
changed its identity or corporate structure within the four calendar months
immediately preceding the Agreement Date.
Section 2.05. LOCATION OF CHIEF EXECUTIVE OFFICE BOOKS AND RECORDS.
The books and records of the Pledgor with respect to the Collateral, and the
chief executive office and the principal place of business of the Pledgor,
4
are maintained at the address set forth as the Pledgor's address for notices
in Section 5.10(a)(ii), and the address where the books and records of the
Pledgor with respect to the Collateral and the chief executive office and the
principal place of business of the Pledgor are maintained has not changed
within the four calendar months immediately preceding the Agreement Date.
ARTICLE 3
CERTAIN COVENANTS
A. GENERAL.
Section 3.01. FINANCING STATEMENTS. Except with respect to Permitted
Liens, 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 Agent
or the other Secured Parties are not named as the only secured parties.
Section 3.02. PRESERVATION OF EXISTENCE AND FRANCHISES, SCOPE OF
BUSINESS, COMPLIANCE WITH LAW, PRESERVATION OF ENFORCEABILITY. The Pledgor
shall (a) preserve and maintain its corporate existence and all of its other
franchises, licenses, rights and privileges, (b) comply with all Applicable Law
and (c) take all action and obtain all consents and Government Approvals
required so that its obligations under the Collateral Documents will at all
times be legal, valid and binding and enforceable in accordance with their
respective terms.
Section 3.03. OWNERSHIP AND DEFENSE OF COLLATERAL. The Pledgor shall
at all times (a) be the owner of the Collateral free from any right, title or
interest of any third Person (other than the Senior Security Interest) and (b)
defend the Collateral against the claims and demands of all third Persons (other
than claims and demands of the Senior Secured Parties with respect to their
Senior Security Interest).
Section 3.04. TAXES; COMPLIANCE. The Pledgor shall (a) pay or cause
to be paid when due all taxes, assessments and governmental charges levied or
assessed or imposed upon or with respect to the Collateral or its sale or other
disposition and (b) comply with all Applicable Law relating to the Collateral.
Section 3.05. NOTICE OF MATERIALLY ADVERSE EFFECT. The Pledgor shall
give prompt notice to the Agent and each other Secured Party of any matter or
event that has
5
had, or may have, a Materially Adverse Effect upon the value of any of the
Collateral.
Section 3.06. REQUESTED INFORMATION. In addition to such other
Information as shall be specifically provided for herein, the Pledgor shall
furnish to the Agent and each other Secured Party such other Information with
respect to the Collateral as the Agent or any other Secured Party may request
from time to time, in each case in form and substance and certified in a
manner satisfactory to the Person requesting such Information.
B. SECURITIES.
Section 3.07. STATUS OF SECURITIES. The Pledgor represents and
warrants that (i) so long as any Securities or any Collateral described in
clauses (ii) or (iii) of the definition thereof are subject to the Security
Interest, the Securities and any Collateral described in clauses (ii) and
(iii) of the definition thereof shall be duly authorized, validly issued,
fully paid and non-assessable and (ii) as of the Agreement Date, the
Securities consist of 20,000,000 shares of common stock, par value $0.01 per
share, of the Issuer, representing 72% of the issued and outstanding shares
of common stock of the Issuer.
Section 3.08. CERTAIN RIGHTS OF AGENT AND PLEDGOR. (a) After the
occurrence and during the continuance of an Event of Default, the Agent may,
and is hereby authorized to, transfer into or register in its name or the
name of its nominee any or all of the Securities which are Priority
Collateral and any Collateral described in clauses (ii) and (iii) of the
definition thereof which is Priority Collateral. The Pledgor shall promptly
give the Agent and each other Secured Party copies of all notices and other
communications received by the Pledgor with respect to any Securities and any
Collateral described in clauses (ii) and (iii) of the definition thereof
registered in the name of the Pledgor.
(b) After the occurrence and during the continuance of an Event of
Default, the Agent, after a notice to the Pledgor that it intends to exercise
its rights under this Section 3.08(b), may, from time to time, by notice to
the Pledgor, in its own or the Pledgor's name, exercise any and all rights,
powers and privileges with respect to the Priority Collateral and with the
same force and effect, as could the Pledgor.
(c) Except with respect to Priority Collateral with respect to
which the Agent has exercised its rights under Section 3.08(b), the Pledgor
may, with respect to any of the Securities and any Collateral described in
clauses
6
(ii) and (iii) of the definition thereof, if the Pledgor shall have given the
Agent and each other Secured Party not less than five Business Days' written
notice thereof, vote and give consents, ratification and waivers with respect
thereto, except to the extent that any such would (A) be for a purpose that
would constitute or result in a Default or (B) in the sole judgment of the
Majority of the Banks, detract from the value thereof as Collateral. Each
such request from the Pledgor shall constitute a Representation and Warranty
by the Pledgor hereunder that no Default exists or would result therefrom.
Section 3.09. DISTRIBUTIONS. (a) The Agent, on behalf of itself
and the other Secured Parties, shall be entitled to receive and retain all
Distributions on or with respect to Priority Collateral, except that the
Pledgor may, unless an Event of Default is continuing, receive and retain all
Ordinary Distributions. Unless an Event of Default is continuing, the Agent,
on behalf of itself and the other Secured Parties, upon request, shall
deliver to the Pledgor all Ordinary Distributions received by it. Each such
request shall constitute a Representation and Warranty by the Pledgor that no
Event of Default is continuing.
(b) The Pledgor shall (i) receive and hold in trust for the Agent,
on behalf of the Agent and the other Secured Parties, (A) all Extraordinary
Distributions on or with respect to Priority Collateral, (B) upon the
occurrence and during the continuation of an Event of Default, all Ordinary
Distributions on or with respect to Priority Collateral, and (C) all other
Collateral described in clauses (ii) and (iii) of the definition thereof
which is Priority Collateral, (ii) not commingle any Collateral described in
clauses (ii) and (iii) of the definition thereof which is Priority Collateral
and that it is required to hold in trust with any of its other funds or
property and (iii) immediately deliver to the Agent, on behalf of the Agent
and the other Secured Parties, all Collateral described in clauses (ii) and
(iii) of the definition thereof which is Priority Collateral and that it is
required to hold in trust in the identical form received with any necessary
endorsements or with appropriate stock or bond powers duly executed in blank.
Section 3.10. NO AMENDMENTS ETC. OF SECURITIES. Subject to
Section 3.08(c), the Pledgor shall not vote in favor of or consent to any
modification of or amendment to the certificate or incorporation or by-laws
of the Issuer that would affect the rights or obligations of holders of the
Issuer's common stock.
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ARTICLE 4
EVENT OF DEFAULT
During an Event of Default, and in each such case:
A. PROCEEDS
Section 4.01. APPLICATION OF PROCEEDS. (a) All cash proceeds
received by the Agent upon any sale of, collection of, or other realization
upon, all or any part of the Priority Collateral and all cash held by the
Agent as Priority Collateral shall, subject to the Agents right to continue
to hold the same as cash Priority Collateral, be applied as follows:
First: To the payment of all out-of-pocket costs and expenses incurred
in connection with the sale of or other realization upon the Priority
Collateral, including attorneys' fees and disbursements;
Second: To the payment of the Secured Obligations owing to the Agent
in its capacity as Agent (but not in its capacity as a Secured Party)
pursuant to Section 5.11(b) in such order as the Agent may elect (with the
Pledgor remaining liable for any deficiency);
Third: To the payment of the other Secured Obligations in such order
as the Majority of the Banks may elect (with the Pledgor remaining liable
for any deficiency); and
Fourth: To the extent of the balance (if any) of such proceeds, to
the payment to the Pledgor, subject to Applicable Law and to any duty to
pay such balance to the holder of any subordinate Lien in the Priority
Collateral.
(b) All Subordinate Collateral held by the Agent, all
Distributions on or with respect to Subordinate Collateral received by the
Agent, and all proceeds, cash or otherwise, received by the Agent upon any
sale of, collection of, or other realization upon, all or any part of the
Subordinate Collateral shall be immediately paid or delivered, as the case
may be, to the 1994 Agent for the payment of the Senior Secured Obligations
owing to the Senior Secured Parties.
B. REMEDIES
Section 4.02. GENERAL. (a) POWER OF SALE. The Agent, on behalf of
itself and the other Secured Parties (i) may sell the Priority Collateral in
one or more public or
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private sales, at any of its offices or elsewhere, for cash, on credit or for
future delivery, and at such price or prices and upon such other terms as it
may deem commercially reasonable, (ii) shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given, and (iii)
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.
(b) FORECLOSURE. The Agent, on behalf of itself and the other
Secured Parties, instead of exercising the power of sale conferred upon it by
Section 4.02(a) and Applicable Law, may proceed by a suit or suits at law or
in equity to foreclose the Security interest in and solely with respect to
the Priority Collateral and sell the Priority Collateral, or any portion
thereof, under a judgment or a decree of a court or courts of competent
jurisdiction.
Section 4.03. (a) AGENT'S RIGHTS WITH RESPECT TO PROCEEDS AND OTHER
COLLATERAL. All payments and other deliveries received by or for the account
of the Agent, on behalf of itself and the other Secured Parties, from time to
time pursuant to Section 3.09, together with the proceeds of all other
Priority Collateral from time to time held by or for the account of the Agent
on behalf of itself and the other Secured Parties (whether as a result of the
exercise by the Agent of its rights under Section 4.02(a) or (b) or Section
4.04 or otherwise) may, at the election of the Agent, (i) be held by the
Agent or any Person designated by the Agent to receive or hold the same, in
either case on behalf of the Agent and the other Secured Parties, as Priority
Collateral, (ii) be or continue to be applied as provided in Section 4.01(a)
or (iii) be disposed of as provided in Section 4.02(a) and (b) and Section
4.04.
(b) ENFORCEMENT BY AGENT. The Agent, on behalf of itself and the
other Secured Parties, may, without notice to the Pledgor and at such time or
times as the Agent in its sole discretion may determine, exercise any or all
of the Pledgor's rights in, to and under, or in any way connected with or
related to, any or all of the Priority Collateral, including (i) demanding
and enforcing payment and performance of, and exercising any or all of the
Pledgor's rights and remedies with respect to the collection, enforcement or
prosecution of, any or all of the Collateral Obligations which relate to any
Priority Collateral, in each case by legal proceedings or otherwise, (ii)
settling, adjusting, compromising, extending, renewing, discharging and
releasing any or all of, and any legal proceedings brought to collect or
enforce any or all of, the Collateral Obligations which relate to any
Priority Collateral, and (iii) preparing, filing and signing the name of the
Pledgor
9
on (A) any proof of claim or similar document to be filed in any bankruptcy
or similar proceeding involving any Collateral Obligation which relates to
any Priority Collateral and (B) any notice of lien, assignment or
satisfaction of lien, or similar document in connection with any Collateral
Obligation which relates to any Priority Collateral.
(c) ADJUSTMENTS. The Agent, on behalf of itself and the other
Secured Parties, may settle or adjust disputes and claims involving Collateral
Obligations which relate to any Priority Collateral for amounts and on terms
that the Agent considers advisable and in all such cases only the net amounts
received by the Agent in payment of such amounts, after deduction of out-of-
pocket costs and expenses of collection, including reasonable attorneys' fees,
shall be subject to the other provisions of this Agreement.
Section 4.04. DISPOSITION OF SECURITIES. (d) REGISTRATION AND
INDEMNIFICATION. If the Agent, on behalf of itself and the other Secured
Parties, elects to sell or otherwise dispose of any Securities which are
Priority Collateral, the Pledgor shall, if the Agent deems such registration to
be desirable, (i) take all actions that the Agent may, request in order to
permit it to exercise, on behalf of itself and the other Secured Parties, the
rights assigned to the Secured Parties under the Subordinate Assignment and
Assumption Agreement, including complying with the "blue sky" or securities laws
of the several States and delivering to the Agent appropriate quantities of
prospectuses, necessary or appropriate so as to permit the public sale or other
disposition thereof by the Agent, on behalf of itself and the other Secured
Parties, in such jurisdictions as the Agent may select, and (ii) indemnify, in
the form then customary, all Persons that are underwriters (whether statutory or
otherwise) and all Affiliates of all such Persons, in connection with such sale
or disposition, such indemnity, to the extent applicable to the Principals, to
be in addition to and supplementary of (and not to be construed as being in
derogation of) that afforded the Principals under Section 5.11 and any indemnity
afforded the Principals under the Credit Agreement.
(e) RESTRICTED OFFERING DISPOSITIONS. Whether or not the Pledgor
controls the Issuer or otherwise has the right to effect the registrations and
compliances referred to in Section 4.04(a) and as an alternative to its rights
thereunder, in connection with any sale of any of the Securities which are
Priority Collateral, the Agent, on behalf of itself and the other Secured
Parties, may at its election, comply with any limitation or restriction
(including any restriction on the number of prospective bidders and purchasers
or any requirement that they have
10
certain qualifications or that they represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of such Securities) as it may be advised by counsel is
necessary in order to avoid any violation of Applicable Law or to obtain any
Governmental Approval, and such compliance shall not result in such sale
being considered or deemed not to have been made in a commercially reasonable
manner, nor shall any Principal be liable nor accountable to the Pledgor for
any discount allowed by reason of the fact that such Securities are sold in
compliance with any such limitation or restriction.
ARTICLE 5
MISCELLANEOUS
Section 5.01. EXPENSES OF PLEDGOR'S AGREEMENTS AND DUTIES. The
terms, conditions, covenants and agreements to be observed or performed by the
Pledgor under the Collateral Documents shall be observed or performed by it at
its sole cost and expense.
Section 5.02. AGENT'S RIGHT TO PERFORM ON PLEDGOR'S BEHALF. If the
Pledgor shall fail to observe or perform any of the terms, conditions, covenants
and agreements to be observed or performed by it under the Collateral Documents,
the Agent, on behalf of itself and the other Secured Parties may (but shall not
be obligated to), pursuant to Section 5.08, do the same or cause it to be done
or performed or observed, either in its name, or in the name and on behalf of
the Pledgor, and the Pledgor hereby authorizes the Agent so to do.
Section 5.03. AGENT'S RIGHT TO USE AGENTS AND TO ACT IN NAME OF
PLEDGOR. The Agent may exercise its rights and remedies and the rights and
remedies of the other Secured Parties under the Collateral Documents through an
agent or other designee and, in the exercise thereof, the Agent or any such
other Person may act in its own name or in the name and on behalf of the
Pledgor.
Section 5.04. NO INTERFERENCE; COMPENSATION OR EXPENSE. The Agent
may exercise its rights and remedies and the rights and remedies of the other
Secured Parties under any of the Collateral Documents (a) without resistance or
interference by the Pledgor, (b) without payment of any kind to the Pledgor
(except to the extent provided in clause "Fourth" of Section 4.01) and (c) for
the account, and at the expense, of the Pledgor.
Section 5.05. LIMITATION OF OBLIGATIONS WITH RESPECT TO COLLATERAL.
(a) Neither the Agent nor any other
11
Secured Party shall have any obligation to protect or preserve any Collateral
or to preserve rights pertaining thereto other than the obligation to use
reasonable care in the custody and preservation of any Collateral in their
actual possession. The Agent shall be deemed to have exercised reasonable
care in the custody and preservation of any Collateral in its possession if
such Collateral is accorded treatment substantially equal to that which the
Agent accords its own property. The Agent shall be relieved of all
responsibility for any Collateral in its possession upon surrendering it, or
tendering surrender of it, to the Pledgor.
(b) Nothing contained in the Collateral Documents shall be construed
as requiring or obligating the Agent or any other Secured Party, and neither the
Agent nor any other Secured Party shall be required or obligated, to (i) make
any demand, or to make any inquiry as to the nature or sufficiency of any
payment received by it, or to present or file any claim or notice or take any
action, with respect to any Collateral Obligation or any other Collateral or the
monies due or to become due thereunder or in connection therewith, (ii)
ascertain or take action with respect to calls, conversions, exchanges,
maturities, tenders, offers or other matters relating to any Collateral, whether
or not the Agent or any other Secured Party has or is deemed to have knowledge
or notice thereof, (iii) take any necessary steps to preserve rights against any
prior parties with respect to any Collateral or (iv) notify the Pledgor of any
decline in the value of any Collateral.
Section 5.06. RIGHTS OF AGENT UNDER UNIFORM COMMERCIAL CODE AND
APPLICABLE LAW. The Agent, on behalf of itself and the other Secured Parties,
shall, except as provided to the contrary herein, have, with respect to the
Collateral, in addition to all of its rights and remedies under the Loan
Documents, (a) the rights and remedies of a secured party under the Uniform
Commercial Code, whether or not the Uniform Commercial Code would otherwise
apply to the Collateral in question, and (b) the rights and remedies of a
secured party under all other Applicable Law.
Section 5.07. WAIVERS OF RIGHTS INHIBITING ENFORCEMENT. The Pledgor
waives (a) any claim that, as to any part of the Collateral, a public sale,
should the Agent elect so to proceed, is, in and of itself, not a commercially
reasonable method of sale for such Collateral, (b) the right to assert in any
action or proceeding among it and the Agent or any other Secured Party any
offsets or counterclaims that it may have, (c) except as otherwise provided in
any of the Collateral Documents, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
NOTICE OR JUDICIAL HEARING IN CONNECTION WITH THE AGENT'S TAKING POSSESSION OR
DISPOSITION
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OF ANY OF THE COLLATERAL INCLUDING ANY AND ALL PRIOR NOTICE AND HEARING FOR
ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE PLEDGOR WOULD
OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR
OF ANY STATE, AND ALL OTHER REQUIREMENTS AS TO THE TIME, PLACE AND TERMS OF
SALE OR OTHER REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF THE RIGHTS OF
THE AGENT AND THE OTHER SECURED PARTIES HEREUNDER, (d) all rights of
redemption, appraisement, valuation, stay and extension or moratorium and (e)
all other rights the exercise of which would, directly or indirectly,
prevent, delay or inhibit the enforcement of any of the rights or remedies
under the Loan Documents or the absolute sale of the Collateral, now or
hereafter in force under any Applicable Law, and the Pledgor, for itself and
all who may claim under it, insofar as it or they now or hereafter lawfully
may, hereby waive the benefit of all such laws and rights.
Section 5.08. POWER OF ATTORNEY. (a) In addition to the other
powers granted the Agent or the other Secured Parties by the Pledgor under the
Collateral Documents, the Pledgor hereby appoints the Agent, and any other
Person that the Agent may designate, as the Pledgor's attorney-in-fact to act,
in the name, place and stead of the Pledgor in any way in which the Pledgor
itself could do, with respect to each of the following: (i) endorsing the
Pledgor's name on (A) any checks, notes, acceptances, money orders, drafts or
other forms of payment, (B) any documents, instruments, notices, or other
documents or agreements relating to the Priority Collateral, (C) any schedules
and assignments of Collateral Obligations which relate to Priority Collateral
and (D) any notices of assignment, financing statements and other public
records; (ii) taking any actions or exercising any rights, powers or privileges
that the Pledgor is entitled to take or exercise and that, under the terms of
any of the Collateral Documents, the Agent or any other Secured Party is
authorized to take or exercise; (iii) doing or causing to be done any or all
things necessary or, in the determination of the Agent, desirable to observe or
perform the terms, conditions, covenants and agreements to be observed or
performed by the Pledgor under the Collateral Documents and otherwise to carry
out the provisions of the Collateral Documents; and (iv) during an Event of
Default, notifying the post office authorities to change the address for
delivery of the Pledgor's mail to an address designated by the Agent, and
receiving, opening and disposing of all mail addressed to the Pledgor (with all
mail not constituting, evidencing or relating to the Priority Collateral to be
forwarded by the Agent to the Pledgor). The Pledgor hereby ratifies and
approves all acts of the attorney.
13
(b) To induce any third Person to act under this Section 5.08, the
Pledgor hereby agrees that any third Person receiving a duly executed copy or
facsimile of this Agreement may act under this Section 5.08, and that the
termination of this Section 5.08 shall be ineffective as to such third Person
unless and until actual notice or knowledge of such termination shall have been
received by such third Person, and the Pledgor, on behalf of itself and its
successors and assigns, hereby agrees to indemnify and hold harmless any such
third Person from and against any and all claims that may arise against such
third Person by reason of such third Person having relied on the provisions of
this Section 5.08.
Section 5.09. TERMINATION OF SECURITY INTEREST. The Security
Interest and all of the Pledgor's obligations under Articles 1, 3 and 4 shall
terminate upon (a) the occurrence of the Repayment Date and (b) (i) the
execution and delivery to the Agent of a release, in form and substance
satisfactory to it, of all Loan Document Related Claims that the Pledgor may
have against the Indemnified Persons under the facts existing at such time,
whether or not known or knowable, and (ii) the discharge, dismissal with
prejudice, settlement, release or other termination of any other Loan Document
Related Claims that may be pending or threatened against the Indemnified
Persons.
Section 5.10. NOTICES AND DELIVERIES. (a) NOTICES AND MATERIALS
OTHER THAN COLLATERAL. Except as provided in Section 5.10(b):
(i) MANNER OF DELIVERY. All notices, communications and
materials (including all Information) to be given or delivered pursuant to
the Collateral Documents shall be given or delivered in writing (which
shall include telex or telecopy transmissions).
(ii) ADDRESSES. All notices, communications and materials to be
given or delivered pursuant to the Collateral Documents shall be given or
delivered at the following respective addresses and telex, telecopier and
telephone numbers and to the attention of the following individuals or
departments:
(A) IF to the Pledgor, to it at:
00 Xxxxxx xx xx Xxxxxx Xxxxx
00000 Xxxxx
Cedex 16
France
Telex No.: 645188 SESOS
Telecopier No.: 011-33-1-4501-7028
14
Telephone No.: 000-00-0-0000-0000
Attention: Xxxxxxx Xxxxxxxxxx
(B) if to the Agent or any other Secured Party, to it at the notice
address for the Agent or such other Secured Party in the Credit
Agreement; or at such other address or telex, telecopier or
telephone number or to the attention of such other individual or
department as the party to which such information pertains may
hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party
to which such information pertains is the Pledgor, the Agent and
each other Secured Party, (y) if the party to which such
information pertains is a Secured Party other than the Agent, the
Pledgor and the Agent and (2) if the party to which such
information pertains is the Agent, the Pledgor and each Secured
Party other than the Agent.
(iii) EFFECTIVENESS. Each notice, communication and any material
to be given or delivered pursuant to the Collateral Documents shall be
deemed given or delivered (A) if sent by registered or certified mail,
postage prepaid, return receipt requested, on the third Business Day after
such notice, communication or material, addressed as above provided, is
delivered to a United States post office and a receipt therefore is issued
thereby, (B) if sent by any other means of physical delivery, when such
notice, communication or material is delivered to the appropriate address
as above provided, (C) if sent by telex, when such notice, communication or
material is transmitted to the appropriate number determined as above
provided in this Section 5.10(a) and the appropriate answer-back is
received and (D) if sent by telecopier, when such notice, communication or
material is transmitted to the appropriate telecopier number as above
provided and is received at such number, except that (x) notices of a
change of address, telex, telecopier or telephone number or individual or
department to whose attention notices, communications and materials are to
be given or delivered shall not be deemed given until received and (y)
notices, communications and materials to be given or delivered to the Agent
pursuant to the Collateral Documents shall not be deemed given or delivered
until received by the officers of the Agent responsible, at the time, for
the administration of the Collateral Documents.
15
(iv) REASONABLE NOTICE. Any requirement under Applicable Law of
reasonable notice by the Agent or the other Secured Parties to the Pledgor
of any event in connection with, or in any way related to, the Loan
Documents or the exercise by the Agent or the other Secured Parties of any
of their rights thereunder shall be met if notice of such event is given to
the Pledgor in the manner prescribed above at least 10 days before (A) the
date of such event or (B) the date after which such event will occur.
(b) COLLATERAL. Until the Agent shall otherwise specify, all
Priority Collateral to be delivered to the Agent or to the Collateral Agent
pursuant to the Collateral Documents consisting of securities shall be delivered
by hand delivery at (x), in the case of the Agent, the Agent's Office, and (y),
in the case of the Collateral Agent, the office set forth in the Notice to
Collateral Agent in the form of Exhibit 1 to SCHEDULE 1.03 hereto. All other
Priority Collateral to be delivered to the Agent or to Collateral Agent pursuant
to the Collateral Documents shall be delivered to the Agent or to the Collateral
Agent, as the case may be, at such addresses, by such means and in such manner
as the Agent may designate.
Section 5.11. EXPENSES; INDEMNIFICATION. Whether or not any Loans
are made under the Credit Agreement, the Pledgor shall:
(a) pay or reimburse each Secured Party for all transfer,
documentary, stamp and similar taxes, and all recording and filing fees and
taxes, payable in connection with, arising out of, or in any way related to, the
execution, delivery and performance of the Collateral Documents;
(b) pay or reimburse the Agent for all reasonable out-of-pocket costs
and expenses (including fees and disbursements of legal counsel, appraisers,
accountants and other experts employed or retained by the Agent) incurred by the
Agent in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Collateral Documents
and (B) whether or not executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the Collateral
Documents, (iii) consulting with respect to any matter in any way arising out
of, related to, or connected with, the Collateral Documents, including (A) the
protection or preservation of the Collateral, (B) the protection, preservation,
exercise or enforcement of any of the rights of the Secured Parties in, under or
related to the Collateral or the Collateral Documents or (C) the performance of
any of the obligations of the Secured Parties
16
under or related to the Collateral Documents, (iv) protecting or preserving
the Collateral or (v) protecting, preserving, exercising or enforcing any of
the rights of the Secured Parties in, under or related to the Collateral or
the Collateral Documents, including defending the Security Interest as a
valid, perfected security interest in the Collateral subject only to
Permitted Liens;
(c) pay or reimburse each Secured Party (other than Societe Generale
in its capacity as Agent) for all reasonable out-of-pocket costs and expenses
(including fees and disbursements of legal counsel and other experts employed or
retained by such Secured Party (other than Societe Generale in its capacity as
Agent)) incurred by such Secured Party (other than Societe Generale in its
capacity as Agent) in connection with, arising out of, or in any way related to
(i) consulting with respect to (A) the protection, preservation, exercise or
enforcement of any of its rights in, under or related to the Collateral or the
Collateral Documents or (B) the performance of any of its obligations under or
related to the Collateral Documents or (ii) protecting, preserving, exercising
or enforcing any of its rights in, under or related to the Collateral or the
Collateral Documents; and
(d) indemnify and hold each Principal harmless from and against all
losses (including judgments, penalties and fines) suffered, and pay or reimburse
each Principal for all reasonable out-of-pocket costs and expenses (including
fees and disbursements of legal counsel and other experts employed or retained
by such Principal) incurred, by such Principal in connection with, arising out
of, or in any way related to (i) any Collateral Document Related Claim (whether
asserted by such Principal or the Pledgor or any other Person), including the
prosecution or defense thereof and any litigation or proceeding with respect
thereto (whether or not, in the case of any such litigation or proceeding, such
Principal is a party thereto), or (ii) any investigation, governmental or
otherwise, arising out of, related to, or in any way connected with, the
Collateral Documents or the relationship established thereunder which would not
have arisen if the CollateraL Documents had not been entered into, except that
the foregoing indemnity shall not be applicable to any loss suffered by any
Principal to the extent such loss is determined by a judgment of a court that is
binding on the Pledgor and such Principal, as applicable, final and not subject
to review on appeal, to be the result of acts or omissions on the part of such
Principal constituting (x) willful misconduct, (y) knowing violations of law or
(z) in the case of claims by the Pledgor against such Principal, such Person's
failure to observe any other standard applicable to it under any of the
17
other provisions of the Collateral Documents or, but only to the extent not
waivable thereunder, Applicable Law.
Section 5.12. AMOUNTS PAYABLE DUE UPON REQUEST FOR PAYMENT. All
amounts payable by the Pledgor under Section 5.11 and under the other provisions
of the Collateral Documents shall be immediately due upon request for the
payment thereof.
Section 5.13. INTEREST. All amounts due and payable under the
Collateral Documents shall, to the maximum extent permitted by Applicable Law,
bear interest at a rate per annum equal to the rate specified in the Credit
Agreement with respect to the Loans thereunder. Notwithstanding the foregoing,
nothing contained in the Collateral Documents shall require the Pledgor at any
time to pay interest at a rate exceeding the Maximum Permissible Rate. If
interest payable by the Pledgor on any date would exceed the maximum amount
permitted by the Maximum Permissible Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Maximum Permissible Rate, shall be increased by the unpaid amount
of such reduction. Interest shall be computed on the basis of a year of 360
days and paid for the actual number of days elapsed. Interest for any period
shall be calculated from and including the first day thereof to but excluding
the last day thereof.
Section 5.14. PAYMENTS BY THE PLEDGOR. (a) TIME, PLACE AND MANNER.
All payments due to the Agent under the Collateral Documents shall be made to
the Agent, or to such other Person as the Agent may designate, at the Agent's
Office or such other address as the Agent may designate. All payments due to
any other Principal under the Collateral Documents shall be made to such
Principal, or to such other Person as such Principal may designate, at such
address as such Principal may designate. A payment shall not be deemed to have
been made on any day unless such payment has been received by the required
Person, at the required place of payment, in Dollars in funds immediately
available to such Person, no later than 12:00 noon (New York time) on such day.
(b) NO REDUCTIONS. All payments due to any Principal under the
Collateral Documents, and all other terms, conditions, covenants and agreements
to be observed and performed by the Pledgor thereunder, shall be made, observed
or performed by the Pledgor without any reduction or deduction whatsoever,
including any reduction or deduction for any set-off, recoupment, counterclaim
(whether, in any case, in respect of an obligation owed by
18
such Principal to the Pledgor, the Borrower or any guarantor and, in the case
of a counterclaim, whether sounding in tort, contract or otherwise) or Tax,
except for any withholding or deduction for Taxes required to be withheld or
deducted under Applicable Law.
(c) TAXES. (i) If any Tax is required to be withheld or deducted
from, or is otherwise payable by the Pledgor in connection with, any payment to
any Principal under the Collateral Documents, the Pledgor (A) shall, if
required, withhold or deduct the amount of such Tax from such payment and, in
any case, pay such Tax to the appropriate taxing authority in accordance with
Applicable Law and (B) shall pay to such Principal such additional amounts as
may be necessary so that the net amount received by such Principal with respect
to such payment, after withholding or deducting all Taxes required to be
withheld or deducted, is equal to the full amount payable under the Collateral
Documents. If any Tax is withheld or deducted from, or is otherwise payable by
the Pledgor in connection with, any payment payable to any Principal under the
Collateral Documents, the Pledgor shall, as soon as possible after the date of
such payment, furnish to such Principal the original or a certified copy of a
receipt for such Tax from the applicable taxing authority. If any payment due
to any Principal under the Collateral Documents is or is expected to be made
without withholding or deducting therefrom, or otherwise paying in connection
therewith, any Tax payable to any taxing authority, the Pledgor shall, within 30
days after any request from any Principal, furnish to such Principal a
certificate from such taxing authority, or an opinion of counsel acceptable to
such Principal, in either case stating that no Tax payable to such taxing
authority was or is, as the case may be, required to be withheld or deducted
from, or otherwise paid by the Pledgor in connection with, such payment.
(ii) The Pledgor shall, promptly upon request by any Principal for
the payment thereof, pay to such Principal (A) all Taxes (other than Bank Taxes)
payable by such Principal with respect to any payment due to such Principal
under the Collateral Documents and (B) all Taxes (including Bank Taxes) payable
by such Principal as a result of payments made by the Pledgor (whether made to a
taxing authority or to such Principal but, in either case, without duplication)
pursuant to Section 5.14(c)(i) or (ii).
(iii) (A) Each Secured Party that is not a "United States person" (as
such term is defined in Section 7701(a) (30) of the Code) shall submit to the
Pledgor (1) on or before the first date that interest or fees are payable to it
under the Collateral Documents, (2) two duly completed and signed copies of
Internal Revenue Service Form 1001 or
19
4224 or any successor form, in each case entitling such Secured Party to a
complete exemption from withholding of any United States federal income taxes
on all amounts to be received by such Secured Party under the Collateral
Documents, and (bb) a duly completed and signed copy of Internal Revenue
Service Form W-8 or W-9 or any successor form, in each case entitling such
Secured Party to a complete exemption from United States backup withholding
tax on all amounts to be received by such Secured Party under the Collateral
Documents, and (2) from time to time thereafter, prior to the expiration or
obsolescence of any previously delivered form or upon any previously
delivered form becoming inaccurate or inapplicable, such further duly
completed and signed copies of such form or such other forms or certificates,
in each case entitling such Secured Party to exemption from withholding of
United States federal income taxes and from United States backup withholding
tax to the maximum extent to which such Secured Party is then entitled under
Applicable Law. Each Secured Party shall promptly notify the Pledgor if (1)
it is required to withdraw or cancel any form or certificate previously
submitted by it or any such form or certificate has otherwise become
ineffective or inaccurate or (2) payments to it are or will be subject to
withholding of United States federal income taxes or United States backup
withholding tax to a greater extent than the extent to which payments to it
were previously subject. Upon the request of the Pledgor or the Agent, each
Secured Party that is a United States person (as defined above) shall from
time to time submit to the Pledgor and the Agent a certificate to the effect
that it is such a United States person.
(B) Notwithstanding anything to the contrary contained herein, the
Pledgor shall not be required to pay any additional amount in respect of
withholding of United States income taxes or United States backup withholding
tax pursuant to Section 5.14(c)(i) or (ii) to any Principal (1) except to the
extent United States federal income taxes or United States backup withholding
tax, as the case may be, is required to be withheld as a result of a Regulatory
Change or (2) to the extent such withholding is required because such Principal
has failed to submit any form or certificate that it is entitled to so submit
under Applicable Law.
(d) AUTHORIZATION TO CHARGE BANK ACCOUNTS. The Pledgor hereby
authorizes each Secured Party, if and to the extent any amount payable by the
Pledgor under the Collateral Documents (whether payable to such Secured Party or
to any other Secured Party) is not otherwise paid when due, to charge such
amount against any or all of the Bank Accounts of the Pledgor with such Secured
Party or any of its Affiliates, with the Pledgor remaining liable for any
deficiency.
20
(e) EXTENSION OF PAYMENT DATES. Whenever any payment to any
Principal under the Collateral Documents would otherwise be due (except by
reason of acceleration) on a day that is not a Business Day, such payment shall
instead be due on the next succeeding Business Day. If the date any payment
under the Collateral Documents is due is extended (whether by operation of any
Collateral Document, Applicable Law or otherwise), such payment shall bear
interest for such extended time at the rate of interest applicable hereunder.
Section 5.15. REMEDIES OF THE ESSENCE. The various rights and
remedies of the Secured Parties under the Collateral Documents are of the
essence of those agreements, and the Secured Parties shall be entitled to obtain
a decree requiring specific performance of each such right and remedy.
Section 5.16 RIGHTS CUMULATIVE. Each of the rights and remedies of
the Secured Parties under the Loan Documents shall be in addition to all of
their other rights and remedies under the Loan Documents and Applicable Law, and
nothing in the Loan Documents shall be construed as limiting any such rights or
remedies.
Section 5.17 AMENDMENTS; WAIVERS. Any term, covenant, agreement or
condition of the Collateral Documents may be amended, and any right under the
Collateral Documents may be waived, if, but only if, such amendment or waiver is
in writing and is signed by the Agent and, in the case of an amendment, by the
Pledgor. No consent of any other Secured Party is necessary in connection with
any such amendment or waiver made pursuant to the provisions of the Credit
Agreement in connection with an event or circumstance contemplated by the Credit
Agreement. Unless otherwise specified in such waiver, a waiver of any right
under the Collateral Documents shall be effective only in the specific instance
and for the specific purpose for which given. No election not to exercise,
failure to exercise or delay in exercising any right, nor any course of dealing
or performance, shall operate as a waiver of any right of the Secured Parties
under the Collateral Documents or Applicable Law, nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right of the Secured Parties under the
Collateral Documents or Applicable Law.
Section 5.18 ASSIGNMENTS AND PARTICIPATIONS. (a) ASSIGNMENTS. (i)
The Pledgor may not assign any of its rights or obligations under the Collateral
Documents without the prior written consent of the Majority of the Banks, and no
assignment of any such obligation shall release the Pledgor therefrom unless the
Majority of the Banks shall have consented to such release in a writing
specifically
21
referring to the obligation from which the Pledgor is to be released.
(ii) Each Secured Party may, in connection with any assignment
permitted under the Credit Agreement to any Person of any or all of the Secured
Obligations owing to it, assign to such Person any or all of its rights and
obligations under the Collateral Documents and with respect to the Collateral
without any consent of the Pledgor, the Agent or any other Secured Party, other
than one required by any of the other Loan Documents. Upon such assignment,
such Person shall be deemed to be a Secured Party with the same rights and
obligations as if it had been a party to this Agreement. Any such assignment of
any such obligation shall release such Secured Party from any obligations that
arise after such assignment.
(b) PARTICIPATIONS. Each Secured Party may, in connection with any
grant to any Person pursuant to the Credit Agreement of a participation in any
or all of the Secured Obligations owing to it, grant to such Person a
participation in any or all of its rights and obligations under the Collateral
Documents and with respect to the Collateral without any consent of the Pledgor,
the Agent or any other Secured Party, other than one required by any of the
other Loan Documents. Promptly after the grant of any such participation, the
Secured Party granting such participation shall notify the Pledgor and the Agent
of the name and address of the participant.
(c) RIGHTS OF ASSIGNEES AND PARTICIPANTS. Each assignee of, and each
holder of a participation in, the rights of a Secured Party under the Collateral
Documents and with respect to the Collateral, if and to the extent the
applicable assignment or participation agreement so provides, (i) shall, with
respect to its assignment or participation, be entitled to all of the rights of
a Secured Party (as fully, in the case of a holder of a participation, as though
it were a Secured Party), subject to any conditions imposed on a Secured Party
hereunder with respect thereto, including delivery of the forms and certificates
required under Section 5.14(c)(iii), and (ii) may exercise any and all rights of
set-off or banker's lien with respect thereto (as fully, in the case of a holder
of a participation, as though the Pledgor were directly indebted to such holder
for amounts payable under the Collateral Documents to which such holder is
entitled under the applicable participation agreement); PROVIDED, HOWEVER, that
no assignee or holder of a participation shall be entitled to any amounts that
would otherwise be payable to it with respect to its assignment or participation
under Section 5.14(b) or (c) unless (x) such amounts are payable in respect of
Regulatory Changes that are enacted, adopted or
22
issued after the date the applicable assignment or participation agreement
was executed or (y) such amounts would have been payable to the Secured Party
that made such assignment or granted such participation if such assignment
had not been made or such participation granted.
Section 5.19 RELATIONSHIP AMONG BANKS AND WITH AGENT.
Notwithstanding anything to the contrary contained in this Agreement, the
relationship of the Banks among each other and with respect to the Agent shall
be governed by Article 9 of the Credit Agreement.
Section 5.20. GOVERNING LAW. The Collateral Documents (other than
the Credit Agreement) shall be construed in accordance with and governed by the
laws of the State of New York (without giving effect to its choice of law
principles).
Section 5.21. JUDICIAL PROCEEDINGS; WAIVER OF JURY TRIAL. Any
judicial proceeding brought against the Pledgor, the Agent or any other Secured
Party with respect to any Collateral Document Related Claim may be brought in
any court of competent jurisdiction in the City of New York, and, by execution
and delivery of this Agreement, the Pledgor, the Agent and each other Secured
Party (a) accept, generally and unconditionally, the nonexclusive jurisdiction
of such courts and any related appellate court and irrevocably agree to be bound
by any judgment rendered thereby in connection with any Collateral Document
Related Claim and (b) irrevocably waive any objection they may now or hereafter
have as to the venue of any such proceeding brought in such a court or that such
a court is an inconvenient forum. The Pledgor, the Agent and each other Secured
Party hereby waive personal service of process and consent that service of
process upon any such Person may be made by certified or registered mail, return
receipt requested, at the address for such Person specified or determined in
accordance with the provisions of Section 5.10(a)(ii), and service so made shall
be deemed completed on the third Business Day after such service is deposited in
the mail. Nothing herein shall affect the right of the Pledgor, the Agent or
any other Secured Party to serve process in any other manner permitted by law or
shall limit the right of the Pledgor, the Agent or any other Secured Party to
bring proceedings against the Pledgor, the Agent or any other Secured Party in
the courts of any other jurisdiction. THE PLEDGOR, THE AGENT AND EACH OTHER
SECURED PARTY HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING
ANY COLLATERAL DOCUMENT RELATED CLAIM.
Section 5.22. LIMITATION OF LIABILITY. NONE OF THE AGENT, ANY OTHER
SECURED PARTY OR ANY OTHER PRINCIPAL
23
SHALL HAVE ANY LIABILITY WITH RESPECT TO, AND THE PLEDGOR HEREBY WAIVES,
RELEASES AND AGREES NOT TO XXX FOR:
(a) ANY LOSS OR DAMAGE SUSTAINED BY THE PLEDGOR, OR ANY LOSS, DAMAGE,
DEPRECIATION OR OTHER DIMINUTION IN THE VALUE OF ANY COLLATERAL, THAT MAY OCCUR
AS A RESULT OF, IN CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY
EXERCISE OF ANY RIGHT OR REMEDY UNDER THE COLLATERAL DOCUMENTS, EXCEPT FOR ANY
SUCH LOSS, DAMAGE, DEPRECIATION OR DIMINUTION TO THE EXTENT THAT THE SAME IS
DETERMINED BY A JUDGMENT OF A COURT THAT IS BINDING ON THE PLEDGOR AND SUCH
PRINCIPAL, FINAL AND NOT SUBJECT TO REVIEW ON APPEAL, TO BE THE RESULT OF ACTS
OR OMISSIONS ON THE PART OF SUCH PRINCIPAL CONSTITUTING (x) WILLFUL MISCONDUCT,
(y) KNOWING VIOLATIONS OF LAW OR (z) SUCH PERSON'S FAILURE TO OBSERVE ANY OTHER
STANDARD APPLICABLE TO IT UNDER ANY OF THE OTHER PROVISIONS OF THE COLLATERAL
DOCUMENTS OR, BUT ONLY TO THE EXTENT NOT WAIVABLE THEREUNDER, APPLICABLE LAW; OR
(b) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY THE
PLEDGOR IN CONNECTION WITH ANY COLLATERAL DOCUMENT RELATED CLAIM.
Section 5.23. SEVERABILITY OF PROVISIONS. Any provision of the
Collateral Documents that 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 thereof in
that jurisdiction or affecting the validity or enforceability of such provision
in any other jurisdiction. To the extent permitted by Applicable Law, the
Pledgor hereby waives any provision of Applicable Law that renders any provision
of the Collateral Documents prohibited or unenforceable in any respect.
Section 5.24. COUNTERPARTS. Each Collateral Document may be signed
in any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto were upon the same instrument.
Section 5.25 SURVIVAL OF OBLIGATIONS. Except as otherwise expressly
provided therein, the rights and obligations of the Pledgor, the Agent, the
other Secured Parties and the other Indemnified Persons under the Loan Documents
shall survive the Repayment Date and the termination of the Security Interest.
Section 5.26 ENTIRE AGREEMENT. This Agreement embodies the entire
agreement among the Pledgor, the Agent and the other Secured Parties relating to
the subject matter hereof and supersedes all prior agreements, representations
and understandings, if any, relating to the subject matter hereof.
24
Section 5.27 SUCCESSORS AND ASSIGNS. All of the provisions of each
Collateral Document shall be binding on and inure to the benefit of the Pledgor,
the Agent and the other Secured Parties and their respective successors and
assigns.
Section 5.28. REASONABLENESS. Whenever the Pledgor, the Agent or any
other Secured Party has the right under this Agreement to request, approve, be
satisfied or exercise its judgment, it will (unless, in the case of the Agent or
the other Secured Parties, an Event of Default has occurred and is continuing)
do so reasonably in light of the purpose for which such right is granted.
Section 5.29. INCONSISTENCY. In the event that there should be any
inconsistency among the terms of this Agreement and the terms of the Credit
Agreement, the terms of the Credit Agreement shall be controlling.
ARTICLE 6
INTERPRETATION
Section 6.01. DEFINITIONAL PROVISIONS. (a) CERTAIN TERMS DEFINED BY
REFERENCE. (i) Except where the context clearly indicates a different meaning,
all terms defined in Article 1, 8 or 9 of the Uniform Commercial Code, as in
effect on the date of this Agreement, are used herein with the meanings therein
ascribed to them. In addition, the terms "collateral" and "security interest",
when capitalized, have the meanings specified in subsection (b) below and the
term "deposit account" includes an account evidenced by a certificate of
deposit.
(ii) Except for terms specifically defined in this Agreement, terms
defined in the Credit Agreement are used herein with the meanings therein
ascribed to them.
(b) OTHER DEFINED TERMS. For purposes of this Agreement:
"AFFILIATE" means, with respect to a Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"AGENT" means Societe Generale, as agent for and representative
(within the meaning of Section 9-105(m) of the Uniform Commercial Code) of the
Banks under the Loan Documents, and any successor Agent appointed pursuant to
the Credit Agreement.
25
"1994 AGENT" means the Agent as such term is defined the Senior Pledge
Agreement.
"AGENT'S OFFICE" means the address of the Agent specified in or
determined in accordance with the provisions of Section 5.10(a) (ii).
"AGREEMENT" means this Agreement, including all schedules, annexes and
exhibits hereto.
"AGREEMENT DATE" means the date set forth as such on the last
signature page hereof.
"APPLICABLE LAW" means, anything herein or in the Credit Agreement to
the contrary notwithstanding, (i) all applicable common law and principles of
equity and (ii) all applicable provisions of all (A) constitutions, statutes,
rules, regulations and orders of governmental bodies, (B) Governmental Approvals
and (C) orders, decisions, judgments and decrees of all courts (whether at law
or in equity or admiralty) and arbitrators.
"BANK" means (i) any bank listed on the signature pages of the Credit
Agreement, in its capacity as a lender thereunder, (ii) any Person that becomes
a bank party to the Credit Agreement, and (iii) any Person that has been
assigned any or all of the rights or obligations of a Bank pursuant to the
Credit Agreement.
"BANK ACCOUNT" means (i), a deposit, custody, or other account
(whether, in any case, time or demand or interest or noninterest bearing and
whether maintained at a branch or office located within or without the United
States) of the Pledgor with the Agent, any other Secured Party or any Affiliate
of the Agent or any other Secured Party, (ii) all amounts from time to time
credited to such account, (iii) all cash, securities, instruments, documents,
chattel paper, general intangibles, accounts and other property from time to
time credited to such account or representing investments and reinvestment of
amounts from time to time credited to such account and (iv) all interest,
principal payments, dividends and other distributions payable on or with respect
to, and all proceeds of, (A) all property so credited or representing such
investments and reinvestment and (B) such account.
"BANK TAX" means any income or franchise tax imposed upon any Bank by
any jurisdiction (or political subdivision thereof) in which such Bank (or any
of its branches or offices designated by such Bank from time to time as the
branch or office at which its Loans are to be made or maintained) is located.
26
"BORROWER" means S.A. Xxxxx Xxxxxxx et Cie, a French corporation.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which banks in New York City and Paris are authorized to close.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" means the Pledgor's interest (WHATEVER IT MAY BE) in each
of the following, IN EACH CASE WHETHER NOW OR HEREAFTER EXISTING OR NOW OWNED OR
HEREAFTER ACQUIRED BY THE PLEDGOR AND WHETHER OR NOT THE SAME IS NOW
CONTEMPLATED, ANTICIPATED OR FORESEEABLE, is subject to Article 8 or 9 of the
Uniform Commercial Code or constitutes Collateral by reason of one or more than
one of the following clauses:
(i) the Securities and the certificates, if any, representing
them;
(ii) all dividends and other Distributions in respect of the
Securities, any instruments, securities or other property issued in
substitution therefor or replacement thereof or with respect thereto and
any Distributions with respect thereto;
(iii) all other instruments, securities and other property issued
with respect to or in exchange for the Securities or any instruments,
securities or other property issued in substitution therefor or replacement
thereof or with respect thereto (whether, in either case, upon conversion
of convertible securities included therein or through stock split,
spin-off, reclassification, merger, consolidation, sale of assets,
combination of shares or otherwise);
(iv) all rights (contractual and otherwise and whether
constituting accounts, contract rights or general intangibles) arising
under, connected with or in any way related to the Securities or any
Collateral described in clauses (ii) or (iii) of this definition;
(v) all books, records, ledgercards, files, correspondence,
computer programs, tapes, disks and redated data processing software (owned
by the Debtor or in which it has an interest) that at any time evidence or
contain information relating to any Collateral or are otherwise necessary
or helpful in the collection thereof or realization thereupon;
(vi) all claims (including the right to xxx or otherwise recover
on such claims) (A) to items
27
referred to in the definition of Collateral and (B) against third parties
that in any way arise under or out of or are related to or connected
with any or all of the Collateral; and
(vii) all products and proceeds of Collateral in whatever form.
The inclusion of "proceeds" of Collateral in the definition of "Collateral"
shall not be deemed a consent by the Secured Parties to any sale or other
disposition of any Collateral not otherwise specifically permitted by the
terms hereof.
"COLLATERAL AGENT" means Citibank, N.A., as the holder of Collateral
on behalf of (i) the Senior Secured Parties pursuant to the Senior Pledge
Agreement and (ii) the Secured Parties pursuant to this Agreement and to the
Notice to Collateral Agent substantially in the form of Exhibit 1 to SCHEDULE
1.03 hereto and executed by the parties thereto on the Agreement Date.
"COLLATERAL DOCUMENT RELATED CLAIM" means any claim (whether civil,
criminal or administrative and whether arising under any Applicable Law, or
sounding in tort, contract or otherwise) in any way arising out of, related to,
or connected with, (i) the Collateral Documents, (ii) the relationships
established thereunder, (iii) the exercise of any right or remedy available
thereunder or under Applicable Law or (iv) the Collateral, whether such claim
arises or is asserted before or after the Agreement Date or before or after the
release of the Security Interest.
"COLLATERAL DOCUMENTS" means (i) this Agreement and (ii) all other
agreements, documents and instruments related to, arising out of, or in any way
connected with, (A) this Agreement, (B) any other agreement, document or
instrument referred to in this clause (ii), or (C) any of the transactions
contemplated by this Agreement or any such other agreement, document or
instrument, in each case whether now or hereafter executed.
"COLLATERAL OBLIGATION" means a Liability constituting part of the
Collateral and includes any such constituting or arising under any Securities or
any other Collateral.
"COMMITMENT" of any Bank means (i) the amount set forth opposite the
name of such Bank in Article 1.1 of the Credit Agreement as the maximum amount
to be lent by such Bank under the Credit Agreement or, in the case of a Bank
that becomes a Bank pursuant to an assignment permitted by the Credit Agreement,
the amount of the assignor's Commitment assigned to such Bank, in either case as
the same may be reduced from time to time pursuant to the Credit
28
Agreement or increased or reduced from time to time pursuant to assignments
in accordance with the Credit Agreement, or (ii) as the context may require,
the obligation of such Bank to make Loans in an aggregate unpaid principal
amount not exceeding such amount.
"CONTRACT" means (i) any agreement (whether bi-lateral or
unilateral or executory or non-executory and whether a Person entitled to
rights thereunder is so entitled directly or as a third-party beneficiary),
including an indenture, lease or license, (ii) any deed or other instrument
of conveyance, (iii) any certificate of incorporation or charter and (iv) any
bylaw.
"CREDIT AGREEMENT" means the Convention de Pret en Devises, dated
December 27, 1995, among S.A. Xxxxx Xxxxxxx et Cie, Societe Generale, as
Agent, and the banks listed on the signature pages thereof, as the same may
be amended from time to time.
"1994 CREDIT AGREEMENT" means the Convention de Pret en Devises,
dated December 23, 1994, among S.A. Xxxxx Xxxxxxx et Cie, Societe Generale,
as Agent, and the banks listed on the signature pages thereof, as the same
may be amended from time to time.
"DEFAULT" means any condition or event that constitutes an Event of
Default or that with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"DISTRIBUTIONS" means Ordinary Distributions and Extraordinary
Distributions; "ORDINARY DISTRIBUTIONS" means cash dividends to the extent
paid out of retained earnings, and interest paid in cash, in each case with
respect to the Securities or the Collateral described in clauses (ii) or
(iii) of the definition thereof, except to the extent that any such dividend
is made in connection with partial or total liquidation or a reduction of
capital, or any such interest is penalty interest, or, in each case, to the
extent the same is not in the ordinary course; and "EXTRAORDINARY
DISTRIBUTIONS" means (in each case whether or not in cash) all dividends,
interest, principal payments and other distributions (including cash and
securities payable in connection with calls, conversions, redemptions and the
like) on or in respect of, and all proceeds (including cash and securities
receivable in connection with tender or other offers) of, the Securities or
the Collateral described in clauses (ii) or (iii) of the definition thereof,
other than Ordinary Distributions.
"DOLLARS" and the sign "$" mean lawful money of the United States
of America.
29
"EVENT OF DEFAULT" means any of the events specified in the Credit
Agreement as an Event of Default, including but not limited to any of the
events, circumstances or situations set forth in Article 8 of the Credit
Agreement.
"GOVERNMENTAL APPROVAL means any authorization, consent, approval,
license or exemption of, registration or filing with, or report or notice to,
any governmental unit.
"INDEMNIFIED PERSON" means any Person that is, or at any time was,
the Agent, a Bank, an Affiliate of the Agent or a Bank or a director,
officer, employee or agent of any such Person.
"INFORMATION" means data, certificates, reports, statements
(including financial statements), opinions of counsel, documents and other
information.
"ISSUER" means Xxxxx Xxxxxxx Natural Gas Corp., an Oklahoma
corporation.
"LIABILITY" of any Person means (in each case, whether with full or
limited recourse) any indebtedness, liability, obligation, covenant or duty
of or binding upon, or any term or condition to be observed by or binding
upon, such Person or any of its assets, of any kind, nature or description,
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, whether arising under Contract,
Applicable Law, or otherwise, whether now existing or hereafter arising, and
whether for the payment of money or the performance or non-performance of any
act.
"LIEN" means, with respect to any property or asset (or any income
or profits therefrom) of any Person (in each case whether the same is
consensual or nonconsensual or arises by Contract, operation of law, legal
process or otherwise) (i) any mortgage, lien, pledge, attachment, levy or
other security interest of any kind thereupon or in respect thereof or (ii)
any other arrangement, express or implied, under which the same is
subordinated, transferred, sequestered or otherwise identified so as to
subject the same to, or make the same available for, the payment or
performance of any Liability in priority to the payment of the ordinary,
unsecured Liabilities of such Person. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset that it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement
relating to such asset.
30
"LOAN" means any amount advanced by a Bank pursuant to the Credit
Agreement.
"LOAN DOCUMENT RELATED CLAIM" means any claim or dispute (whether
arising under Applicable Law, under Contract or otherwise and, in the case of
any proceeding relating to any such claim or dispute, whether civil,
criminal, administrative or otherwise) in any way arising out of, related to,
or connected with, the Loan Documents, the relationships established
thereunder or any actions or conduct thereunder or with respect thereto,
whether such claim or dispute arises or is asserted before or after the
Agreement Date or before or after the Repayment Date.
"LOAN DOCUMENTS" means (i) the Credit Agreement and this Agreement
and (ii) all other agreements, documents and instruments relating to, arising
out of, or in any way connected with (A) any agreement, document or
instrument referred to in clause (i), (B) any other agreement, document or
instrument referred to in this clause (ii) or (C) any of the transactions
contemplated by any agreement, document or instrument referred to in clause
(i) or in this clause (ii), in each case whether now or hereafter executed.
"MAJORITY OF THE BANKS" means, at any time, Banks holding more than
50% of the aggregate principal amount of the Loans outstanding under the
Credit Agreement at that time.
"MATERIALLY ADVERSE EFFECT" means, (i) with respect to any Person,
any materially adverse effect on such Person's business, assets, Liabilities,
financial condition, results of operations or business prospects, (ii) with
respect to a group of Persons "taken as a whole", any materially adverse
effect on such Persons' business, assets, Liabilities, financial conditions,
results of operations or business prospects taken as a whole on, where
appropriate, a consolidated basis in accordance with generally accepted
accounting principles, (iii) with respect to any Loan Document, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature, validity or
enforceability thereof as an obligation of the Borrower and (iv) with respect
to any Collateral, or any category of Collateral, pledged by the Borrower, a
materially adverse effect on its value as Collateral or its utility in the
Borrower's business or an adverse effect, WHETHER OR NOT MATERIAL, on the
validity, perfection, priority or enforceability of the Security Interest
therein.
"MAXIMUM PERMISSIBLE RATE" means, with respect to interest payable
on any amount, the rate of interest on such amount that, if exceeded, could,
under Applicable Law, result in (i) civil or criminal penalties being imposed
on
31
the payee or (ii) the payee's being unable to enforce payment of (or, if
collected, to retain) all or any part of such amount or the interest payable
thereon.
"PERMITTED LIENS" means (i) (A) a Lien consented to in writing by
the Agent and (B) a Lien for Taxes not yet due, but only, in the case of a
Lien referred to in either clause (A) or (B), if the Agent shall not have
requested the discharge thereof, (ii) a Lien created in favor of the Agent
and the other Secured Parties under the Collateral Documents and (iii) the
Senior Security Interest in the Collateral.
"PERSON" means any individual, sole proprietorship, corporation,
partnership, trust, unincorporated organization, mutual company, joint stock
company, estate, union, employee organization, government or any agency or
political subdivision thereof.
"PLEDGOR means S.A. Xxxxx Xxxxxxx et Cie, a French corporation.
"PRINCIPALS" means all Persons that are, or at any time were, the
Agent, a Bank or any other Indemnified Person.
"PRIORITY COLLATERAL" means (i) Collateral that has been released
from the Senior Security Interest either (A) pursuant to the provisions of
the Senior Pledge Agreement in connection with actions by the 1994 Agent
pursuant to Section 6 of the 1994 Credit Agreement or (B) upon the
termination of Senior Security Interest as provided in the Senior Pledge
Agreement, and (ii), to the extent not covered by clause (i) above,
Collateral and any products or proceeds thereof realized upon the exercise by
the 1994 Agent or the Senior Secured Parties of any of its or their rights
and remedies (whether upon the occurrence of an Event of Default under the
Senior Pledge Agreement or otherwise) with respect to the Collateral pursuant
to the Senior Pledge Agreement (the "Realized Collateral") to the extent of
the excess, if any, of (A) the value of such Realized Collateral over (B) the
sum of all Senior Secured Obligations owing or payable to the Senior Secured
Parties under the Senior Pledge Agreement.
"REGULATORY CHANGE" means any Applicable Law, interpretation,
directive, request or guideline (whether or not having the force of law), or
any change therein or in the administration or enforcement thereof, that
becomes effective or is implemented or first required or expected to be
complied with after the Agreement Date, whether the same is (i) the result of
an enactment by a government or any agency or political subdivision thereof,
a determination of a court or regulatory authority, or otherwise or (ii)
32
enacted, adopted, issued or proposed before or after the Agreement Date,
including any such that imposes, increases or modifies any Tax, reserve
requirement, insurance charge, special deposit requirement, assessment or
capital adequacy requirement, but excluding any such that imposes, increases
or modifies any Bank Tax.
"REPAYMENT DATE" means the later of (i) the final maturity date of
the Loans under the Credit Agreement as such date may be amended from time to
time, and (ii) the date on which all Loans and all other amounts payable or
accrued hereunder are paid in full and no further Loans may be made hereunder.
"REPRESENTATION AND WARRANTY" means each representation or warranty
made pursuant to or under (i) Article 2, Article 3 or any other provision of
this Agreement, (ii) any of the other Loan Documents or (iii) any amendment
to, or waiver of rights under, this Agreement or under any of the other Loan
Documents, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION OR WARRANTY
REFERRED TO IN CLAUSE (i), (ii) OR (iii) OF THIS DEFINITION (EXCEPT, IN EACH
CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS
THE SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE PLEDGOR.
"SECURED OBLIGATIONS" means all Liabilities of the Pledgor owing to, or
in favor or for the benefit of, or purporting to be owing to, or in favor or
for the benefit of, the Principals under the Loan Documents to which the
Pledgor is a party, in each case (i) WHETHER NOW EXISTING OR HEREAFTER
ARISING OR ACQUIRED, and (ii) whether owing to, or in favor or for the
benefit of, or purporting to be owing to, or in favor or for the benefit of,
Persons that are Principals as of the Agreement Date or that become
Principals by reasons of any succession or assignment at any time thereafter.
"SECURED PARTY" means each of Societe Generale, in its capacity as
the Agent and in its capacity as a Bank, Banque Nationale de Paris in its
capacity as a Bank, and any other Bank, and their respective successors and
assigns.
"SECURITIES" means 20,000,000 shares of common stock, par value
$0.01 per share, of the Issuer.
"SECURITY INTEREST" means the mortgages, pledges and assignments to
the Secured Parties of, the continuing security interest of the Secured
Parties in, and the continuing lien of the Secured Parties upon, the
Collateral intended to be effected by the terms of this Agreement or any of
the other Loan Documents.
33
"SENIOR PLEDGE AGREEMENT" means the Pledge Agreement dated as of
December 23, 1994, among the Pledgor and the banks listed on the signature pages
thereof.
"SENIOR SECURED OBLIGATIONS" means the Secured Obligations as such
term is defined in the Senior Pledge Agreement.
"SENIOR SECURED PARTIES" means the Secured Parties as such term is
defined in the Senior Pledge Agreement.
"SENIOR SECURITY INTEREST" means the Security Interest as defined in
and provided for by the Senior Pledge Agreement.
"SUBORDINATE ASSIGNMENT AND ASSUMPTION AGREEMENT" means the
Subordinate Assignment and Assumption Agreement, dated as of December 27, 1995,
among the Borrower and the Secured Parties, consented and agreed to by Xxxxx
Xxxxxxx Natural Gas Corp.
"SUBORDINATE COLLATERAL" means any and all Collateral that is not
Priority Collateral.
"SUBSIDIARY" means, with respect to any Person, any other Person (i)
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (ii) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of the Borrower.
"TAX" means any Federal, State or foreign tax, assessment or other
governmental charge or levy (including any withholding tax) upon a Person or
upon its assets, revenues, income or profits.
"UNIFORM COMMERCIAL CODE" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 6.02. OTHER INTERPRETATIVE PROVISIONS. (a) Except as
otherwise specified herein, all references herein (i) to any Person shall be
deemed to include such Person's successors and assigns, (ii) to any Applicable
Law defined or referred to herein shall be deemed references to such Applicable
Law as the same may have been or may be amended or supplemented from time to
time and (iii) to any Loan Document or Contract defined or referred to herein
shall be deemed references to such Loan Document or Contract
34
(and, in the case of any instrument, any other instrument issued in
substitution therefor) as the terms thereof may have been or may be amended,
supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Schedule" and "Exhibit" shall refer to Articles of, Sections of, and Schedules
and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are included" are limited to such items or to items similar
to such items.
(e) Each power of attorney, license and other authorization in favor
of the Agent, the other Secured Parties or any other Person granted by or
pursuant to this Agreement shall be deemed to be irrevocable and coupled with an
interest.
(f) Except as otherwise indicated, any reference herein to the
"Collateral", the "Priority Collateral", the "Subordinate Collateral", the
"Secured Obligations", the "Senior Secured Obligations", the "Secured
Parties", the "Senior Secured Parties", the "Loan Documents", the "Collateral
Documents", the "Principals" or any other collective or plural term shall be
deemed a reference to each and every item included within the category
described by such collective or plural term, so that (i) a reference to the
"Collateral", the "Priority Collateral", the "Subordinate Collateral", the
"Secured Obligations", the "Senior Secured Obligations", the "Secured
Parties", the "Senior Secured Parties" or the "Principals" shall be deemed a
reference to any or all of the Collateral, the Priority Collateral, the
Subordinate Collateral, the Secured Obligations, the Senior Secured
Obligations, the Secured Parties, the Senior Secured Parties or the
Principals, as the case may be, and (ii) a reference to the "obligations" of
the Pledgor under the "Loan Documents" or the "Collateral
35
Documents" shall be deemed a reference to each and every obligation under
each and every Loan Document or Collateral Document, as the case may be,
whether any such obligation is incurred under one, some or all of the Loan
Documents or the Collateral Documents, as the case may be.
(g) Except as otherwise specified therein, all terms defined in this
Agreement shall have the meanings herein ascribed to them when used in the other
Collateral Documents or any certificate, opinion or other document delivered
pursuant hereto or thereto.
Section 6.03. REPRESENTATIONS AND WARRANTIES. All Representations
and Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 6.04. CAPTIONS. Captions to Articles, Sections and
subsections of, and Annexes, Schedules and Exhibits to, the Collateral Documents
are included for convenience of reference only and shall not constitute a part
of the Collateral Documents for any other purpose or in any way affect the
meaning or construction of any provision of the Collateral Documents.
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Agreement Date.
S.A. XXXXX XXXXXXX ET CIE
By /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Directeur General
SOCIETE GENERALE
as Agent and as a Bank
By /s/ X. Xxxxx
-----------------------------------
Name: X. Xxxxx
Title: Adjoint Au Directeur de la Divison
Negoce Inernational
BANQUE NATIONALE DE PARIS
as a Bank
By /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chance de Mission
Agreement Date: December 27, 1995
37
SCHEDULE 1.03
SCHEDULE OF REQUIRED ACTION
Pursuant to, and without thereby limiting, its obligations under
Section 1.03, the Pledgor hereby agrees that it will:
(a) file UCC-1 financing statements in the form of SCHEDULE
1.03(A);
(b) (i) on the Agreement Date, execute and deliver to the
Collateral Agent and the other parties thereto for their execution a Notice
to Collateral Agent in substantially the form of Exhibit 1 hereto, and
thereafter, within five Business Days (or, during an Event of Default such
shorter period as the Agent may specify) after receipt by the Pledgor or any
of its agents, deliver or cause to be delivered to the Agent or to the
Collateral Agent all certificated securities (other than the Securities)
evidencing or forming a part of the Collateral (which after the occurrence
and during the continuation of an Event of Default, shall be endorsed or
accompanied by such instruments of assignment as the Agent may specify) and
all dividends and other Distributions on or with respect to the Priority
Collateral; PROVIDED that the Pledgor shall be required to deliver Ordinary
Distributions with respect to the Priority Collateral to the Agent only if an
Event of Default shall have occurred and be continuing;
(ii) hold all money, checks, notes, drafts and other payments
received by the Pledgor or any of its agents that constitute Priority
Collateral, in trust for the Secured Parties, not commingle the same with any
other property of the Pledgor and, within five Business Days (or, during an
Event of Default, such shorter period as the Agent may specify) after
receipt, cause the same to be delivered to the Agent or to the Collateral
Agent; PROVIDED that the Pledgor shall be required to deliver Ordinary
Distributions on or with respect to the Priority Collateral to the Agent only
if an Event of Default shall have occurred and be continuing.
EXHIBIT 1 TO
SCHEDULE 1.03
NOTICE TO COLLATERAL AGENT
December 27, 1995
Citibank, N.A.
International Custody Department
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxx 00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxxxxxx
Ladies and Gentlemen:
Reference is made to (i) the Pledge Agreement dated as of December
27, 1995 (the "Subordinate Pledge Agreement"), among S.A. Xxxxx Xxxxxxx et
cie ("SALD"), Societe Generale, as agent (the "Agent"), and the banks listed
on the signature pages thereof, and (ii) the Pledge Agreement dated as of
December 23, 1994 (the "Senior Pledge Agreement"), among SALD, Societe
Generale, as agent (the "1994 Agent"), and the banks listed on the signature
pages thereof.
The undersigned hereby give you (acting in your role described
herein, the "Collateral Agent") notice that the Collateral (as defined below)
which is now or in the future held by you on behalf of the 1994 Agent and the
other secured parties under the Senior Pledge Agreement (the "Senior Secured
Parties"), and which is currently subject to the senior security interest of
the Senior Secured Parties pursuant to the Senior Pledge Agreement, is also
subject to the security interest of the Agent and the other secured parties
pursuant to the Subordinate Pledge Agreement (the "Secured Parties"). The
undersigned, with the acknowledgement, agreement and consent of the 1994
Agent as evidenced below, hereby instruct you to hold the Collateral for the
additional benefit of the Secured Parties pursuant to the Subordinate Pledge
Agreement.
The undersigned, with the acknowledgement, agreement and consent of
the 1994 Agent as evidenced below, hereby further instruct you (i) not to,
and you hereby agree that you will not, release any Priority Collateral (as
defined below) or any proceeds or products thereof to any Person except upon
the sole instructions of the Agent and (ii) to keep all Priority Collateral
separately identified from all other Collateral held by you.
For the purposes of this Notice to Collateral Agent (this "Notice"), (i)
"Collateral" shall consist of the 20
million shares of Xxxxx Xxxxxxx Natural Gas Corp. currently held by you, and
all other property of whatever type received by you from the 1994 Agent and
designated as "Collateral which you are to hold, pursuant to the Custodial
services Agreement between Societe Generale and Citibank, H.A. dated as of
November 24, 1982 (the "Custody Agreement ), which property is currently (or
will become) subject to the senior security interest of the Senior Secured
Parties pursuant to the Senior Pledge Agreement, and (ii) Priority
Collateral" shall consist solely of Collateral which you shall have been
instructed to hold for the sole benefit of the Secured Parties under the
Subordinate Pledge Agreement in a notice from the 1994 Agent to the
Collateral Agent pursuant to the terms of the Consent Letter dated as of
December 27, 1995 among the 1994 Agent, the banks party thereto, SALD and the
Agent (the "Consent Letter").
It is understood and agreed that (i) you as Collateral Agent shall not
be charged with knowledge of the Subordinate Pledge Agreement, the Senior
Pledge Agreement, the Consent Letter (other than receipt of notices of the
1994 Agent pursuant thereto but solely as specified herein) or any other
document other than the Custody Agreement, (ii) your duties as Collateral
Agent shall consist solely of (A) receiving notices from the 1994 Agent
pursuant to the Consent Letter as referred to above, (B) keeping all Priority
Collateral separately identified from all other Collateral held by you, (C)
releasing Collateral that is not Priority Collateral upon the sole
instructions or the 1994 Agent, (D) releasing Priority Collateral upon the
sole instructions of the Agent, and (E) receiving property from the 1994
Agent to be held as collateral, (iii) you shall be fully entitled to rely on
notices of the 1994 Agent in recharacterizing amounts held as Collateral to
amounts held as Priority Collateral and holding such amounts accordingly and
in holding as Collateral property received from the 1994 Agent and designated
as such, (iv) you shall be fully indemnified and held harmless for any and
all costs and expenses (including reasonable attorney fees)-- incurred in
carrying out instructions in accordance with this Notice, and (v), except as
otherwise provided herein, the Collateral and the Priority Collateral shall
be held by you as Collateral Agent in accordance with the terms and
conditions of the Custody Agreement and, except for the duties enumerated
herein, nothing herein shall modify your duties or obligations under the
Custody Agreement.
This Notice may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such separate counterparts
shall together constitute but one and the same Notice.
2
Please indicate your acknowledgment of and agreement and consent to
the terms of this Notice by signing below where provided and returning this
Notice to the undersigned.
S.A. XXXXX XXXXXXX ET CIE
By:
------------------------------
Name:
Title:
SOCIETE GENERALE, as Agent
under the Subordinate Pledge
Agreement
By:
------------------------------
Name:
Title:
ACKNOWLEDGED, AGREED AND
CONSENTED TO:
CITIBANK, N. A .,
as Collateral Agent
By:
--------------------------------
Name:
Title:
SOCIETE GENERALE, as Agent
under the Senior Pledge Agreement
By:
--------------------------------
Name:
Title:
3
SCHEDULE 1.03(a)
STANDARD FORM UCC-1
FINANCING STATEMENT
1. Debtor: S.A. Xxxxx Xxxxxxx et Cie
00 Xxxxxx xx xx Xxxxxx Xxxxx
00000 Xxxxx
Cedex 16
France
2. Secured Party: Societe Generale, as Agent (as defined in Annex A hereto)
Tour Societe Generale 17, Cours Valmy Paris, La Defense 7
Valmy France
3. "Collateral" as defined in Annex A hereto, whether now or hereafter
existing or now owned or hereafter acquired, including the securities
referred to in clause (a) of Annex A hereto, and all payments and
distributions on or with respect thereto (whether constituting principal,
interest or dividends) and all proceeds of the foregoing.
Signature Lines:
Debtor: S.A. Xxxxx Xxxxxxx et Cie
Secured Party: Societe Generale, as Agent
ANNEX A TO UCC-1 FINANCING STATEMENT
DEBTOR: S.A. Xxxxx Xxxxxxx et Cie
SECURED PARTY: Societe Generale, as Agent for Societe Generale and Banque
Nationale de Paris
COLLATERAL DESCRIPTION
"Collateral" means the Debtor's interest (whatever it may be) in each
of the following, in each case whether now or hereafter existing or now owned or
hereafter acquired by the Debtor and whether or not the same is now
contemplated, anticipated or foreseeable, or constitutes Collateral by reason of
one or more than one of the following clauses, and wherever the same may be
located:
(a) 20,000,000 shares of common stock, par value $0.01 per share, of Xxxxx
Xxxxxxx Natural Gas Corp., an Oklahoma corporation, and the certificates
representing such shares;
(b) all dividends and other distributions in respect of the securities
referred to in clause (a) hereof, any instruments, securities or other property
issued in substitution therefor or replacement thereof or with respect thereto
and any distributions with respect thereto;
(c) all other instruments, securities and other property issued with
respect to or in exchange for the securities referred to in clause (a) hereof or
any instruments, securities or other property issued in substitution therefor or
replacement thereof or with respect thereto (whether, in either case, upon
conversion of convertible securities included therein or through stock split,
spin-off, reclassification, merger, consolidation, sale of assets, combination
of shares or otherwise);
(d) all books, records, ledgercards, files, correspondence, computer
programs, tapes, disks and related data processing software (owned by the Debtor
or in which it has an interest) that at any time evidence or contain information
relating to any Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon;
(e) all rights (contractual and otherwise and whether constituting
accounts, contract rights or general intangibles) arising under, connected with
or in any way related to the Securities or any Collateral described in clauses
(ii) or (iii) of this definition;
(f) all claims (including the right to xxx or otherwise recover on such
claims) (i) to items referred to in the definition of Collateral and (ii)
against third parties that in any way arise under or out of or are related to or
connected with any or all of the Collateral; and
(g) all products and proceeds of Collateral in whatever form.
ADDITIONAL DEFINITION
For purposes of this Annex A:
"Agent" means Societe Generale, as agent for and representative
(within the meaning of Section 9-105(m) of the Uniform Commercial Code) of
Societe Generale and Banque Nationale de Paris (the "Banks"), listed on the
signature pages of the Convention de Pret en Devises, dated December 27, 1995,
among S.A. Xxxxx Xxxxxxx, the Banks and Societe Generale, as Agent, as amended
(the "Credit Agreement") and the respective successors and assigns of such
Banks, and any successor Agent appointed pursuant to the provisions of the
Credit Agreement.
2
