EXHIBIT 2
PLEDGE AGREEMENT FOR THIRD PARTY COLLATERAL Account base number 158322
THE "ACCOUNT"
for Credit Facilities issued by units other than Citibank (Luxembourg) S.A.
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BETWEEN Client name KINGDOM 5KR 62 LTD
THE UNDERSIGNED: Permanent address X/X XXXXXX & XXXXXX
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X.X. XXX 000 XXXXX XXXXXX, XXXXXX ISLANDS, BWI
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hereinafter referred to as the "PLEDGOR";
AND
Name Citibank N.A., Jersey
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Permanent address 00, Xxxxxxxxx Xx Xxxxxx, Xxxxxx XX0 0XX, C.I.
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hereinafter referred to as the "PLEDGEE";
THE FACILITY (A) WHEREAS the pledgee grants to the pledgor a facility
(hereinafter the "FACILITY", which terms shall include
principal, interest, costs, commissions, fees and currency
exchange risk) of a total principal amount of:
all credit facilities granted by the pledgee to the pledgor
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All references herein to "pledgor/borrower" shall be read as
references to the PLEDGOR.
OR (B) WHEREAS the pledgee grants to (where different to the pledgor)
Name/First Name
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Permanent address
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Account base number
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hereinafter referred to as the "BORROWER"
a facility (hereinafter the "FACILITY"), which terms shall
include principal, interest, costs, commissions, fees and
currency exchange risk of a total principal amount of: (in
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numbers) all credit facilities (in letters) granted by the
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pledgee to the borrower
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the terms and conditions of which the pledgor declares being
fully aware of.
All references herein to "pledgor/borrower" shall be read as
references to the BORROWER.
THE PLEDGE WHEREAS the pledgor grants in favour of the pledgee a pledge
(hereinafter the "pledge on deposit") under the form of a
deposit of a countervalue of: (in numbers)
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(in letters)
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(hereinafter the "deposit", which term shall include interest
accruing to the deposit).
WHEREAS the pledgor has placed the deposit with CITIBANK
(LUXEMBOURG) S.A., (hereinafter the "DEPOSITARY") in the
account opened by the pledgor with the depository, the balance
of which, if different from the deposit, is also placed in
favour of the pledgee (this balance shall be considered as
being comprised in the term "deposit" as used hereinafter), to
secure any and all payments due by the pledgor/borrower to the
pledgee under the facility.
WHEREAS, furthermore, the pledgor is willing to grant in favour
of the pledgee a pledge (hereinafter the "pledge on
securities") on all securities, debentures, notes, bonds,
certificates of deposit, as well as all stock, share capital
and any other negotiable rights of property, whether in
nominative or in bearer form, whether transferable or not,
which the pledgor holds now, or may hold in the future, with
the depository (hereinafter the "securities", which term shall
include all rights and dividends accruing to such securities)
to secure the pledgor's/borrower's payment obligations under
the facility as well as all other present or future
indebtedness of any pledgor/borrower vis-a-vis the pledgee.
Except if expressly otherwise provided for, all securities
shall be considered as being fungible.
WHEREAS the facility shall at all times be secured by the
aggregate of the pledge on deposit and the pledge on
securities.
WHEREAS the facility may never exceed the loanable value of the
assets pledged by the pledgor to the pledgee.
WHEREAS the loanable value of the securities and the deposit
shall be calculated and monitored on a permanent basis by the
depositary as agent of the pledgee in accordance with the
margin table set out in appendix hereto. The depositary
reserves the right to make any necessary changes to the margin
table based on the quality, liquidity, marketability and
concentration of the pledged assets. The margin table of the
depositary (as applicable from time to time) is at the
permanent disposal of the pledgor/borrower by the depositary.
WHEREAS the depositary shall be the agent of and represent the
pledgee in any acts and deeds to be undertaken or signed in
order to give effect to this pledge agreement. The depositary
shall for instance be empowered to accept this pledge agreement
on behalf of the pledgee, to monitor the loanable value, and to
request and accept an additional pledge of securities and/or a
pledge of deposit, pursuant to clause 3.2. of this agreement.
WHEREAS for all acts and deeds under this pledge agreement, the
depositary (even if acting in his own name) shall be deemed to
act as an agent for the pledgee.
NOW AND THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
1. PLEDGE ON DEPOSIT
1.1 The pledgor hereby pledges the deposit in favour of the pledgee.
1.2 The depositary is empowered, upon instruction of the pledgee, to convert at
any time all or part of the deposit into certificates of deposit, held by the
depositary in safe custody for the pledgor and pledged in favour of the pledgee
pursuant to clause 2.1 hereafter.
1.3 The pledge shall remain in full force and effect until the pledgor/borrower
has fulfilled all its obligations under the facility, in principal, interest,
commissions, fees and other charges including the repayment of all judicial and
extra judicial costs incurred for the recovery of any amounts due under the
facility.
1.4 The pledgor hereby agrees that this pledge agreement be notified to the
depositary at the pledgor's exclusive costs and expenses in the appropriate way
under Luxembourg law.
1.5 If the pledgor/borrower does not fulfill, on due date, any commitment or
obligation towards the pledgee under the facility, or shall not have fully
complied within eight days from the date of a summons containing a formal
request to satisfy the claims of the pledgee under the facility, the pledgee
shall be authorized to demand payment, transfer and delivery of the deposit in
view to satisfy its secured claims, in accordance with applicable legal
provisions.
2. PLEDGE ON SECURITIES
2.1 The pledgor hereby pledges all securities to the pledgee, who accepts.
2.2 The depositary holds the securities in surety in a special pledge account
and guarantee for the due and punctual payment of all amounts of principal,
interest, commissions, fees and other charges including the repayment of all
judicial and extra judicial costs incurred for the recovery of any amounts due
under the facility or of any debt which is now due and payable or may become in
the future due and payable to the pledgee by the pledgor/borrower, as and when
the same shall become due and payable.
2.3 The pledgor hereby represents and warrants:
2.3.1 that the securities are free and clear of any claims, mortgages, pledges,
liens or other encumbrances of any nature whatsoever, and that the pledgor will
not sell and will keep the securities fee and clear of any claims, mortgages,
pledges, liens or other encumbrances of any nature whatsoever;
2.3.2 that the present agreement is not contrary to any legal or contractual
obligation imposed upon the pledgor, and that it creates valid and binding
obligations upon him.
2.4 If and when a formal notice of repayment to the borrower and the pledgor by
the pledgee or the depository, by way of a registered letter, has remained
unsatisfied for eight days, the pledgee may instruct the depositary to sell the
securities, in accordance with applicable legal provisions, and assign the
proceeds by privilege to the reimbursement of the said debt due by the
pledgor/borrower to the pledgee upon transfer of the sales proceeds by the
depository to the pledgee.
3. GENERAL
3.1 If the outstanding amount of the facility exceeds or threatens to exceed at
any time, the loanable value of the deposit and the securities pledged in favour
of the pledgee, the pledgor undertakes, within five days of first demand, to
pledge, mortgage, transfer and assign to the pledgee, and deliver to the
depository, further securities and/or a further deposit into the account, to the
extent necessary for the facility no longer to exceed or to threaten to exceed
the loanable value of the deposit and the securities.
3.2 In the event of failure to comply with the obligation undertaken pursuant to
clause 3.1 above, the pledgor herewith unconditionally and irrevocably empowers
the pledgee to take all appropriate measures, and in particular to effect all
transactions in order to reduce the outstanding liabilities to the loanable
value of the deposit and the securities, or to render due and payable any sums
due to the pledgee by the pledgor, and to enforce this pledge agreement pursuant
to clause 1.5 and 2.4 above.
3.3 The pledgee shall not be limited in its discretion to enforce the pledge on
deposit or the pledge on securities, whether simultaneously or alternatively,
whether in full or in part. The enforcement, in full or in part, of the mere
pledge on deposit, or of the pledge on securities, as the case may be, does to
constitute a waiver by the pledgee to any of his rights under the pledge on
securities and/or under the pledge on deposit, as the case may be.
3.4 For the duration of this pledge agreement, the pledgor irrevocably empowers
the depositary to give the pledgee from time to time full disclosure concerning
the details of the securities and the deposit. All communications by the pledgee
to either the borrower or the pledgor shall be deemed to be provided to both.
3.5 The obligations of the pledgor hereunder shall not be affected or discharged
in case of the occurrence of any of the following events:
- any time, indulgence, waiver or consent at any time given to the
pledgor/borrower or any other person;
- any amendment to any of the facility documents or to any other
security or any guarantee or indemnity for the facility;
- the enforcement or absence of enforcement of claims for or the release
of the facility or any other security, guarantee or indemnity for the
facility;
- the dissolution, amalgamation, bankruptcy, reconstruction or
re-organization of the pledgor/borrower or any other person.
3.6 The pledgee is explicitly authorized to communicate openly and assign its
rights hereunder to all other Citicorp/Citibank entities which are granting
credit to the pledgor/borrower or which may be in possession of assets securing
such credit or which are a party with or on behalf of the pledgor/borrower in
foreign exchange or securities transactions.
3.7 Generally, the pledgor shall bear all costs, expenses, taxes, duties and
similar charges which shall be incurred to the pledgee by virtue of this pledge
agreement now or in the future, including any costs of notification, even to
foreign counties, and including all court and legal expenses arising out of the
enforcement of the pledgee's rights, and the pledgor hereby irrevocably
authorizes the pledgee and empowers the depository to debit such amount from the
account.
3.8 This pledge agreement shall in all respects be governed by and construed in
accordance with the laws of the Grand Dutchy of Luxembourg.
3.9 This pledge agreement is subject the depository's general terms and
conditions, which the pledgor declares having read and accepted, and which form
an integral part of this pledge agreement inasfar as applicable and consistent
with this pledge agreement.
3.10 The parties to this pledge agreement agree that any legal action or
proceedings arising out of or in connection with this pledge agreement is
submitted to the jurisdiction of the Courts of Luxembourg, Grand Duchy of
Luxembourg. Notwithstanding this, the pledgee reserves the right to commence
legal proceedings before any other competent jurisdiction. For the purpose of
this agreement the pledgor elects domicile at the registered office of the
despositary.
So done in duplicate
Place Date
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KINGDOM 5KR 62 LTD
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The pledgor The depositary (Citibank (Luxembourg)
S.A.) in its own name for acceptance and
as agent for the pledgee.
