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XXXXXX XXXXXX TRUST COMPANY OF NEW YORK
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STOCK PLEDGE AGREEMENT
Dated as of December 1, 1996
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STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement dated as of December 1, 1996 (the
"Agreement"), among Golden State Holdings I Ltd., an Isle of Man holding company
(the "Pledgor"), United States Trust Company of New York, not in its individual
capacity but solely as trustee under the Indenture (as hereinafter defined), a
bank and trust company organized under the New York Banking Law (the "Secured
Party"), and Xxxxxx Xxxxx Xxxxx of 00-00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx of Man (the
"Stock Trustee").
PRELIMINARY STATEMENT
On the Closing Date, Golden State Petro (IOM I-A) PLC and
Golden State Petro (IOM I-B) PLC (each, "Owner", and collectively, the "Owners")
will enter into an Indenture by and among the Owners, the Secured Party and
Golden State Petroleum Transport Corporation, as agent of the Owners, dated as
of the date hereof (the "Indenture"), pursuant to which the Owners will issue
Serial First Preferred Mortgage Notes maturing serially from 2000 to 2006 and
First Preferred Mortgage Notes due 2019.
The Pledgor is the registered legal owner of one of the
Pledged Shares of each of the Owners and the Stock Trustee is the registered
legal owner of the other of the Pledged Shares of each of the Owners who holds
such shares for the Pledgor as bare trustee (subject to the terms of this
Agreement). The Pledgor is the beneficial owner of all of the outstanding shares
of the capital stock of each of the Owners.
The Pledgor has agreed to grant to the Secured Party a
security interest in the Pledged Shares (as hereinafter defined), upon the terms
and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, covenants and agreements herein set forth, the Pledgor
hereby agrees with the Secured Party as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.1. DEFINITIONS. For the purposes of this Agreement,
the following words and terms shall have the meanings set forth below, and terms
not defined herein shall have the meanings ascribed to them in the Indenture or
the Uniform Commercial Code adopted by the State of New York, as amended from
time to time in accordance therewith (the "Code").
"Obligations" means, with respect to each Owner, such Owner's
payment, performance or obligations of any kind or nature whatsoever under and
pursuant to the Indenture, any Security Document and any instrument, agreement
or document referred to therein.
"Pledged Collateral" has the meaning set forth in Section 2.1
of this Agreement.
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"Pledged Shares" means all of the shares of the Owners
beneficially owned by the Pledgor and pledged to the Secured Party pursuant to
Section 2.1 of this Agreement.
Section 1.2. INTERPRETATION. In this Agreement, unless the
context otherwise requires:
(1) The terms "hereby", "hereof", "hereto", "herein",
"hereunder" and any similar terms, as used in this Agreement refer to
this Agreement as a whole and not to any particular provisions and the
term "hereafter" means after, and the term "heretofore" means before,
the date of this Agreement. "Including" or "including" shall mean
without limitation by reason of enumeration.
(2) Words of the masculine gender mean and include correlative
words of the feminine and neuter genders and words importing the
singular number mean and include the plural number and vice versa.
(3) Any headings preceding the texts of the several Articles
and Sections of this Agreement, and the table of contents appended to
this Agreement, shall be solely for convenience of reference and shall
not constitute a part of this Agreement nor shall they affect its
meaning, construction or effect.
(4) References herein to "Articles", "Sections",
"Subsections", "paragraphs", and other subdivisions without reference
to a document are to designated Articles, Sections, Subsections,
paragraphs and other subdivisions of this Agreement. A reference to a
Subsection without further reference to a Section is a reference to
such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to paragraphs and other
subdivisions.
(5) Accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles as in effect on the date hereof.
(6) All approvals, consents and acceptances required to be
given or made by any person or party hereunder shall be at the sole
discretion of the party whose approval, consent or acceptance is
required.
(7) Exhibits, if any, to this Agreement are an integral part
of this Agreement.
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ARTICLE II
SECURITY INTEREST
Section 2.1. SECURITY INTEREST. As security for the prompt and
unconditional payment and performance of the Obligations, the Pledgor does
hereby assign, pledge and grant to the Secured Party a valid perfected security
interest in and to and the Pledgor directs the Stock Trustee to (who hereby
accepts such direction and does hereby) assign, pledge and grant such interest
in and to the following (collectively, the "Pledged Collateral"):
(1) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Shares;
(2) all additional shares of stock of any issuer of the
Pledged Shares from time to time acquired by the Pledgor or the Stock
Trustee for the Pledgor in any manner, and the certificates
representing such additional shares, and all dividends, cash,
instruments and other property from time to time received, receivable
or otherwise distributed in respect of or in exchange for any or all of
such shares; and
(3) all proceeds of any and all of the foregoing (including,
without limitation, proceeds that constitute property of the types
described above).
Section 2.2. DELIVERY OF PLEDGED COLLATERAL. Concurrently with
the execution and delivery of this Agreement, the Pledgor shall deliver or cause
to be delivered to the Secured Party all stock certificates representing the
Pledged Shares together with an executed stock transfer form for each stock
certificate, representing any of the Pledged Shares in favor of the Secured
Party. The Secured Party shall have the right, at any time in its discretion and
without notice to the Pledgor, to transfer to or to register in the name of the
Secured Party or any of its nominees any or all of the Pledged Collateral. In
addition, the Secured Party shall have the right at any time to exchange
certificates or instruments representing or evidencing the Pledged Collateral
for certificates or instruments of smaller or larger denominations. The Pledgor
shall also deliver or cause to be delivered to the Secured Party the following
documents:
(i) executed undated resignations of each director and
officer of each of the Owners from time to time
substantially in the form annexed hereto marked
"Exhibit A"; and
(ii) an irrevocable proxy ("the Irrevocable Proxy") from
each of the Pledgor and the Stock Trustee in respect
of all the Pledged Shares in the form annexed hereto
marked "Exhibit B".
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Provided that the Pledgor and the Stock Trustee will, if so
required and so far as it may be within their power so to do, procure for the
Secured Party and/or its duly authorized representatives access to each of the
share registers of the Owners at any reasonable time for the purposes of
inspection and supply of copies thereof.
Section 2.3. VOTING RIGHTS; DIVIDENDS; ETC. (a) So long as no
Event of Default shall have occurred and be continuing:
(1) The Pledgor and the Stock Trustee on behalf of the Pledgor
shall be entitled to exercise or refrain from exercising any and all
voting and other consensual rights pertaining to the Pledged Collateral
or any part thereof for any purpose not inconsistent with the terms of
this Agreement; PROVIDED, HOWEVER, that the Pledgor and the Stock
Trustee shall not exercise or refrain from exercising any such right
if, in the Secured Party's reasonable judgment, such action would have
a material adverse effect on the value of the Pledged Collateral or any
part thereof;
(2) The Pledgor shall be entitled to receive and retain any
and all dividends, distributions and other amounts paid in respect of
the Pledged Collateral, PROVIDED, HOWEVER, that any and all property of
the type listed in paragraphs (A), (B) and (C) below shall be, and
shall forthwith be delivered to the Secured Party to hold as Pledged
Collateral, as security for the Obligations, and shall, if received by
the Pledgor or the Stock Trustee, be received in trust for the benefit
of the Secured Party, be segregated from the other property or funds of
the Pledgor and be forthwith delivered to the Secured Party as Pledged
Collateral, as security for the Obligations, in the same form as so
received, with any necessary indorsement or assignment:
(A) dividends paid or payable other than in cash in
respect of, and instruments and other property
received, receivable or otherwise distributed in
respect of, or in exchange for, the Pledged
Collateral;
(B) dividends and other distributions paid or payable in
cash in respect of any Pledged Collateral in
connection with a partial or total liquidation or
dissolution;
(C) cash paid in redemption of, or in exchange for, any
Pledged Collateral; and
(3) The Secured Party shall execute and deliver (or cause to
be executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (1) above and to receive
the dividends which it is authorized to receive and retain pursuant to
paragraph (2) above;
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(4) The Pledgor and the Stock Trustee on behalf of the Pledgor
shall ensure that all notices received by them in their capacities as
registered legal owners of the Pledged Collateral shall be copied to
the Secured Party within a reasonable period.
(b) Upon the occurrence and during the continuance of an Event
of Default:
(1) All rights of the Pledgor or the Stock Trustee to exercise
or refrain from exercising the voting and other consensual rights which
would otherwise be available for exercise pursuant to Section 2.3(a)(1)
and to receive the dividends, distributions and other payments which he
or she would otherwise be authorized to receive and retain pursuant to
Section 2.3(a)(2) shall cease and all such rights shall thereupon
become vested in the Secured Party who shall thereupon have the sole
right to exercise or refrain from exercising such voting and other
consensual rights and to receive and hold as Pledged Collateral such
dividends, as security for the Obligations.
(2) All dividends, distributions and other payments which are
received by the Pledgor or the Stock Trustee contrary to the provisions
of paragraph (1) of this Section 2.3(b) shall be received in trust for
the benefit of the Secured Party, shall be segregated from other funds
of the Pledgor and shall be forthwith paid over to the Secured Party as
Pledged Collateral, as security for the Obligations, in the same form
as so received (with any necessary indorsement).
Section 2.4. CAPITAL ADJUSTMENTS. If, prior to the payment in
full of the Obligations, there shall be any stock split, combination or exchange
of shares, consolidation, recapitalization, reorganization, or stock dividend or
any other like event by or of any of the Owners and as often as the same shall
occur, then the number, class and kind of shares of stock pledged pursuant to
this Agreement shall be appropriately adjusted to reflect such event, and
certificates, representing such shares, together with corresponding stock
powers, shall be delivered to the Secured Party in the same manner as the
Pledged Shares originally pledged under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
Section 3.1. REPRESENTATIONS AND WARRANTIES. The Pledgor
represents and warrants to the Secured Party that:
(1) The authorized capital of Golden State Petro (IOM I-A) PLC
consists solely of ____ ordinary shares of one dollar par value, of
which there are 2 such shares issued and outstanding and no shares held
by Golden State Petro (IOM I-A) PLC as treasury shares. All such issued
and outstanding ordinary shares have been duly authorized and validly
issued and are fully paid and nonassessable. There are no
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subscriptions, options, warrants, rights, or other agreements
outstanding providing for the purchase, sale, or issuance of, nor any
security convertible into ordinary shares or any other security of
Golden State Petro (IOM I-A) PLC.
(2) The authorized capitalization of Golden State Petro (IOM
I-B) PLC consists solely of ____ ordinary shares of one dollar par
value, of which there are 2 such shares issued and outstanding and no
shares held by Golden State Petro (IOM I-B) PLC as treasury shares. All
such issued and outstanding ordinary shares have been duly authorized
and validly issued and are fully paid and nonassessable. There are no
subscriptions, options, warrants, rights, or other agreements
outstanding providing for the purchase, sale, or issuance of, nor any
security convertible into, ordinary shares or any other security of
Golden State Petro (IOM I-B) PLC.
(3) The Pledgor and the Stock Trustee have together the power
to transfer all right, title and interest in and to the Pledged Shares
beneficially owned by the Pledgor, without the consent of any other
Person except for the acting directors of each Owner.
(4) The provisions of this Agreement (including the delivery
of stock certificates under Section 2.2 hereof) are effective to create
in favor of the Secured Party a valid, legally enforceable and fully
perfected first security interest in and to the Pledged Shares, free
and clear of all liens, encumbrances and claims of any kind other than
any liens created under the Indenture.
(5) The Pledgor and the Stock Trustee together have the full
power and authority to enter into and perform their obligations under
this Agreement. This Agreement has been duly executed by the Pledgor
and the Stock Trustee and constitutes the legal, valid and binding
obligation of the Pledgor and the Stock Trustee, enforceable against
each of the Pledgor and the Stock Trustee in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditors' rights
generally and by general principles of equity (whether enforcement is
sought in equity or at law). The execution, delivery and performance of
this Agreement will not conflict with any agreement or orders or any
law applicable to the Pledgor and the Stock Trustee.
(6) Collectively, the Pledged Shares include all of the issued
and outstanding shares of each of the Owners.
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ARTICLE IV
COVENANTS OF THE PLEDGOR
The Pledgor covenants and agrees that, unless the Secured
Party otherwise consents in writing, so long as this Agreement shall remain in
effect or any of the Obligations shall be outstanding:
Section 4.1. TRANSFERS AND OTHER LIENS. The Pledgor agrees
that it will not sell, assign (by operation of law or otherwise) or otherwise
dispose of, or grant any option with respect to, any of the Pledged Collateral,
or create or permit to exist any lien, security interest, option or other charge
or encumbrance upon or with respect to any of the Pledged Collateral, except for
the security interest created under this Agreement and the Indenture; PROVIDED,
HOWEVER, the Pledgor may transfer its interest in the Pledged Collateral so long
as (a) the Rating Agencies provide the Secured Party with written approval of
such transfer, (b) the Pledgor furnishes to the Secured Party any opinions of
counsel requested by the Secured Party or any Rating Agency and (c) the
transferee agrees in writing that the Pledged Collateral will remain subject to
the security interest of the Secured Party hereunder.
Section 4.2. ADDITIONAL SHARES. The Pledgor agrees that it
will cause each of the Owners not to issue any stock or other securities in
addition to or in substitution for the Pledged Shares.
Section 4.3. FURTHER ASSURANCES. The Pledgor agrees that at
any time and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver and cause to be executed and delivered all further
instruments and documents, and take all further action, that may be necessary or
desirable, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral.
Section 4.4 COVENANTS. The Pledgor agrees to notify the
Secured Party immediately upon the appointment of any further Director or
Officer of any of the Owners and promptly to deliver to the Secured Party the
undated resignations and letters of undertaking referred to in clause 2.2 hereof
signed by such persons.
Section 4.5. RIGHT OF SECURED PARTY TO PERFORM FOR PLEDGOR.
The Secured Party may, but shall not be obligated to, pay any amount which the
Pledgor has failed to pay or perform any act which the Pledgor has failed to
perform hereunder. Any charges so paid or losses incurred by the Secured Party
as a result of any nonperformance by the Pledgor of its obligations under this
Agreement shall be secured by this Agreement and shall be payable by the Pledgor
on the Secured Party's demand, with interest at the Default Rate.
Section 4.6. AMENDMENT OF CORPORATE DOCUMENTS. The Pledgor
agrees that it will not amend, modify or terminate and will procure that no
amendment, modification or
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termination is made to any or all of the Memorandum of Association or the
Articles of Association of any of the Owners.
ARTICLE V
DEFAULTS; REMEDIES
Section 5.1. DEFAULTS. Any one or more of the following events
shall constitute an "Event of Default" hereunder:
(1) failure of the Owners to pay when due any amount payable
upon or in connection with any of the Obligations, after the expiration
of the applicable grace and/or cure period, if any, provided in the
Indenture with respect thereto;
(2) default by the Pledgor or the Stock Trustee in the
performance or observance of any covenant, agreement or condition
contained herein (other than Section 4.3);
(3) default by the Pledgor in the performance or observance of
Section 4.3 and such default shall continue for a period of 30 days or
more after the Pledgor's receipt of written notice from the Secured
Party;
(4) if any representation or warranty made by the Pledgor
herein shall prove to have been false, incorrect or misleading in any
material respect on the date as of which made; and
(5) an Event of Default under the Indenture.
Section 5.2. REMEDIES ON DEFAULT. If an Event of Default shall
have occurred and be continuing, the Secured Party may, in addition to any other
remedy it may have, take any one or more of the following remedial steps:
(a) Transfer all or any part of the Pledged Collateral into
the name of the Secured Party or its nominee, with or without disclosing that
the Pledged Collateral is subject to the lien and security interest hereunder;
(b) Take control of any proceeds of any of the Pledged
Collateral;
(c) Exercise in respect of the Pledged Collateral, in addition
to other rights and remedies provided for herein or otherwise available to it,
all the rights and remedies of a secured party on default under the Code;
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(d) Hold any cash held by the Secured Party as Pledged
Collateral and all cash proceeds received by the Secured Party in respect of any
sale of, collection from, or other realization upon all or any part of the
Pledged Collateral, in the discretion of the Secured Party, as collateral for,
and/or then or at any time thereafter to be applied in whole or in part by the
Secured Party in accordance with Section 3.4 of the Indenture between the
Secured Party and the Owner of the related Pledged Collateral, or portion
thereof; and
(e) Complete the undated resignations referred to in Section
2.2 hereof and to appoint Directors and Officers of the Company and to exercise
through such Directors of Officers the powers of management of any of the
Owners.
Section 5.3. SALE OF PLEDGED COLLATERAL. (a) The sale of
Pledged Collateral or any portion thereof may be made at any public or private
sale or at any broker's board or on any securities exchange, for cash, upon
credit or for future delivery, as the Secured Party shall deem appropriate. The
Secured Party shall be authorized at any such sale (to the extent it deems it
advisable to do so) to restrict the prospective bidders or purchasers to persons
who will represent and agree that they are purchasing such Pledged Collateral
then being sold for their own account for investment and not with a view to the
distribution or resale thereof, and upon consummation of any such sale the
Secured Party shall have the right to assign, transfer and deliver to the
purchaser or purchasers thereof of the Pledged Collateral so sold. Each such
purchaser at any such sale shall hold the property sold absolutely, free from
any claim or right on the part of the Pledgor, and the Pledgor hereby waives (to
the extent permitted by law) all rights of redemption, stay and/or appraisal
that it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Except in the case of Pledged
Collateral which threatens to decline speedily in value or is of a type
customarily sold on a recognized exchange, the Secured Party shall give to the
Pledgor at least ten (10) Business Days' written notice of the Secured Party's
intention to make any such public or private sale or sale at a broker's board or
on any such securities exchange. Such notice, in the case of public sale, shall
state the time and place fixed for such sale and, in the case of sale at a
broker's board or on a securities exchange, shall state the board or exchange at
which such sale is to be made and the day on which the Pledged Collateral, or
portion thereof to be sold, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times within
ordinary business hours, and at such place or places, as the Secured Party may
fix in the notice of such sale. At any such sale, the Pledged Collateral, or
portion thereof to be sold, may be sold in one lot as an entirety or in separate
parcels, as the Secured Party may determine. The Secured Party may bid for and
purchase the whole or any part of the Pledged Collateral and may, in paying the
purchase price therefor, apply such purchase price directly to the payment or
discharge in whole or in part of the Obligations. The Secured Party may, without
notice or publication, adjourn any public or private sale or cause the same to
be adjourned from time to time by announcement at the time and place fixed for
sale, and such sale may, without further notice, be made at the time and place
to which the same was so adjourned. In case the sale of all or any part of the
Pledged Collateral is made on credit or for future delivery, the Pledged
Collateral so sold may be retained by the Secured Party until the sale price is
paid by the purchaser or purchasers thereof, but the Secured Party shall not
incur any liability in case any
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such purchaser or purchasers shall fail to take up and pay for the Pledged
Collateral so sold and, in the case of any such failure, the Pledged Collateral
may be sold again upon like notice. In case the sale of all or any part of the
Pledged Collateral is made on credit, the amounts actually realized by the
Secured Party from any such sale shall be applied to the Obligations in the
manner provided in Section 3.4 of the Indenture. As an alternative to exercising
the power of sale herein conferred upon it, the Secured Party may proceed by a
suit or suits at law or in equity to foreclose this Agreement and to sell the
Pledged Collateral, or any portion thereof, pursuant to a judgment or decree of
a court or courts of competent jurisdiction.
(b) In connection with any disposition of the Pledged
Collateral, if the Secured Party elects to obtain the advice of any one of three
independent investment banking firms that are member firms of the New York Stock
Exchange, proposed by the Secured Party to the Pledgor and chosen by the Pledgor
within seven (7) days of receiving notice thereof, or if the Pledgor fails to
make such choice within such seven-day period, any one of such firms chosen by
the Secured Party, with respect to the method or manner of sale or disposition
of any of the Pledged Collateral, the best price reasonably obtainable therefor
and any other details concerning such sale or disposition, then, to the extent
permitted by law, any sale or other disposition of any Pledged Collateral in
reliance on such advice shall be deemed to be commercially reasonable under the
Code and otherwise proper.
(c) The Pledgor understands that compliance with Federal or
state securities laws may limit the course of conduct of the Secured Party if
the Secured Party were to attempt to dispose of all or any part of the Pledged
Collateral and may also limit the extent to which or the manner in which any
subsequent transferee of the Pledged Collateral may dispose of the same. The
Pledgor agrees that in any sale of any of the Pledged Collateral, the Secured
Party is hereby authorized to comply with any such limitation or restriction in
connection with such sale as it may be advised by counsel is necessary in order
to avoid any violation of applicable law (including, without limitation,
compliance with such procedures as may restrict the number of prospective
bidders or purchasers and/or further restrict such prospective bidders or
purchasers to persons who will represent and agree that they are purchasing for
their own account for investment and not with a view to the distribution or
resale of the Pledged Collateral), or in order to obtain any required approval
of the sale or of the purchase by any governmental regulatory authority or
official, and the Pledgor further agrees that such compliance shall not result
in such sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Secured Party be liable or accountable to the
Pledgor for any discount allowed by reason of the fact that the Pledged
Collateral is sold in compliance with any such limitation or restriction.
Section 5.4. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. The
Pledgor and the Stock Trustee each hereby irrevocably constitutes and appoints
Secured Party and any officer, employee or agent thereof, with full power of
substitution, as the Pledgor's and Stock Trustee's true and lawful
attorney-in-fact with full irrevocable power and authority in the name, place
and stead of the Pledgor or the Stock Trustee or in its own name, from time to
time in Secured Party's discretion, for the purpose of carrying out the terms of
this Agreement, to take any and
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all appropriate action and to execute any and all documents and instruments
which may be reasonably necessary or desirable to accomplish the purposes of
this Agreement. The Pledgor and the Stock Trustee each hereby ratifies all that
said attorneys shall lawfully do or cause to be done by virtue hereof. This
power of attorney is a power coupled with an interest, shall be irrevocable and
shall terminate only upon payment in full of the Obligations. The powers
conferred on Secured Party hereunder are solely to protect Secured Party's
interests in the Pledged Collateral and shall not impose any duty upon it to
exercise such powers. Secured Party shall be accountable only for amounts that
it actually receives as a result of the exercise of such powers, and neither it
nor any of its officers, directors, employees or agents shall be responsible to
Pledgor and the Stock Trustee for any action taken or omitted to be taken in
good faith or in reliance on the advice of counsel except only for its own gross
negligence or willful misconduct, and the foregoing shall not operate to release
the Secured Party from any liability arising out of the gross negligence of any
of its officers, directors, employees or agents in disposing of any of the
Pledged Collateral.
Section 5.5. WAIVERS. (A) The Pledgor waives presentment,
demand, notice, protest, notice of acceptance of this Agreement, notice of loans
made, credit extended, collateral received or delivered or other action taken in
reliance hereon and, except as otherwise expressly provided herein or in the
other Security Documents, all other demands and notices of any description. The
Secured Party shall have no duty as to the collection or protection of Pledged
Collateral or any income thereon, nor as to the preservation of rights against
prior parties, nor as to the preservation of any rights pertaining thereto
beyond the safe custody thereof.
(B) The Secured Party shall not, under any circumstances or in
any event whatsoever, have any liability for any error or omission or delay of
any kind occurring in the liquidation of or realization upon any of the Pledged
Collateral, including any instrument received in payment thereof, or any damage
resulting therefrom, except for its own gross negligence or willful misconduct.
The Pledgor shall indemnify and hold harmless the Secured Party against any
claim, loss or damage arising out of the liquidation of or realization upon any
of the Pledged Collateral, including any instrument received in payment thereof,
except that the Pledgor shall have no obligation to indemnify and hold harmless
the Secured Party from its own gross negligence or willful misconduct.
Section 5.6. REMEDIES CUMULATIVE. No remedy conferred upon or
reserved to the Secured Party hereunder is or shall be deemed to be exclusive of
any other available remedy or remedies. Each such remedy shall be distinct,
separate and cumulative, shall not be deemed to be inconsistent with or in
exclusion of any other available remedy, may be exercised in the discretion of
the Secured Party at any time, in any manner, and in any order, and shall be in
addition to and separate and distinct from every other remedy given the Secured
Party under the Indenture and the other Security Documents, any other security
interest given to the Secured Party by the Pledgor with respect to the
Collateral or any other mortgage or security agreement securing the Obligations,
or now or hereafter existing in favor of the Secured Party at law or in equity
or by statute, including without limitation, all rights of a secured party under
the Code. Without limiting the generality of the foregoing, the Secured Party
shall have the right to
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exercise any available remedy to recover any amount due and payable hereunder
without regard to whether any other amount is due and payable, and without
prejudice to the Secured Party to exercise any available remedy, under the
Indenture, the other Security Documents or otherwise, for other events of
default existing at the time the earlier action was commenced.
Section 5.7. DELAY DOES NOT CONSTITUTE WAIVER. Any delay,
omission or failure by the Secured Party to insist upon the strict performance
by the Pledgor or the Stock Trustee of any of the covenants, conditions and
agreements herein set forth or to exercise any right or remedy available to it
upon the occurrence of an Event of Default hereunder, an Event of Default under
the Indenture or otherwise, shall not impair any such right or remedy or be
considered or taken as a waiver or relinquishment for the future right to insist
upon and to enforce, by injunction or other appropriate legal or equitable
remedy, strict compliance by the Pledgor and the Stock Trustee with all of the
covenants, conditions and agreements herein or otherwise, or of the right to
exercise any such rights or remedies if such default by the Pledgor or the Stock
Trustee be continued or repeated.
ARTICLE VI
MISCELLANEOUS
Section 6.1. AMENDMENT. This Agreement may be amended from
time to time by written agreement signed by the parties hereto.
Section 6.2. SEVERABILITY. If any provision of this Agreement
is held to be in conflict with any applicable statute or rule of law or is
otherwise held to be unenforceable for any reason whatsoever, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. The invalidity of any one or more phrases, sentences,
clauses or Sections of this Agreement contained, shall not affect the remaining
portions of this Agreement, or any part thereof.
Section 6.3. NOTICES. All demands, notices and communications
hereunder shall be in writing, personally delivered or mailed by certified
mail-return receipt requested, and shall be deemed to have been duly given upon
receipt (a) in the case of the Pledgor, at the following address: x/x Xxxxxxxxx
Xxxx Xxxxxxxxxx, XXX, Xxxx Xxxxxx Tower, 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000, (b) in the case of the Secured Party, at the following
address: 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Department and (c) in the case of the Stock Trustee, at the following
address: 00-00 Xxxxx Xxxxxx, Xxxxxxx, Xxxx of Man, or at other such address as
shall be designated by such party in a written notice to the other parties.
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Section 6.4. CONSENT TO JURISDICTION. Any legal suit, action
or proceeding against the Pledgor arising out of or relating to this Agreement,
the Indenture or any other Security Document, or any transaction contemplated
hereby or thereby, may be instituted in any federal or state court in The City
of New York, State of New York and the Pledgor hereby waives any objection which
they may now or hereafter have to the laying of venue of any such suit, action
or proceeding, and the Pledgor hereby irrevocably submits to the jurisdiction of
any such court in any such suit, action or proceeding. The Pledgor hereby
irrevocably appoints and designate CT Corporation System, having an address at
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, its true and lawful attorney-in-fact and duly
authorized agent for the limited purpose of accepting service of legal process
and the Pledgor agrees that service of process upon such party shall constitute
personal service of such process on the Pledgor. The Pledgor shall maintain the
designation and appointment of such authorized agent until all amounts payable
under this Agreement, the Indenture and the other Security Documents shall have
been paid in full. If such agent shall cease to so act, the Pledgor shall
immediately designate and appoint another such agent satisfactory to the Secured
Party and shall promptly deliver to the Secured Party evidence in writing of
such other agent's acceptance of such appointment.
Section 6.5. CAPTIONS. The captions or headings in this
Agreement are for convenience only and in no way define, limit or describe the
scope or intent of any provisions or sections of this Agreement.
Section 6.6. GOVERNING LAW. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law.
Section 6.7. NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture among the parties
hereto and the services of each party shall be rendered as an independent
contractor and not as agent for any other party.
Section 6.8. COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by different parties hereto on separate
counterpart, each of which shall be deemed to be an original. Such counterparts
shall constitute one and the same agreement.
Section 6.9. SURVIVAL. The representations, covenants and
agreements contained in or made pursuant to this Agreement in respect of either
party hereto shall survive the execution and delivery of this Agreement and
shall continue in effect so long as such party's obligations hereunder remain
outstanding.
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Section 6.10. INTEGRATION. This Agreement and the Exhibits
hereto constitute the entire agreement and understanding between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements, understandings or representations pertaining to the subject matter
hereof, whether oral or written. There are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof except as specifically set forth or incorporated herein.
Section 6.11. REPRODUCTION OF DOCUMENTS. This Agreement and
all documents relating thereto, including, without limitation, (a) consents,
waivers and modifications which may hereafter be executed, (b) documents
received by any party at the closing, and (c) financial statements, certificates
and other information previously or hereafter furnished, may be reproduced by
any photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
Section 6.12. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This
Agreement shall be binding upon and inure to the benefit of the Pledgor and the
Secured Party and their respective successors and assigns. The Pledgor shall not
have the right to assign its rights hereunder or any interest herein without the
prior written consent of the Secured Party. The Secured Party, at its sole
option, shall have the right to assign this Agreement and any of its rights and
interest hereunder.
Section 6.13. EFFECTIVE DATE OF TRANSACTION. Notwithstanding
the fact that this Agreement is dated as of December 1, 1996, the transactions
set forth herein shall not be effective until the Closing Date.
Section 6.14. RETURN OF PLEDGED SHARES. Upon the payment and
performance in full of the Obligations, the Secured Party shall redeliver the
related Pledged Shares to the Pledgor.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
GOLDEN STATE HOLDINGS I LTD.
By:/s/ Xxxx XxXxxxxx
-----------------------------
Name: Xxxx XxXxxxxx
Its: President
UNITED STATES TRUST COMPANY OF NEW YORK, as
Indenture Trustee
By:/s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Its: Assistant Vice President
XXXXXX XXXXX XXXXX, as Stock Trustee
By:/s/ R. V. Vanderplank
-----------------------------
Name: R. V. Vanderplank
Its: Attorney for X. X. Xxxxx
Exhibit A
Letter of resignation referred to in Clause 2.2(i)
To: [Name of Owner]
(the "Company")
Date:
Dear Sirs:
1. I hereby resign as a director/secretary (or other officer) of
the Company and confirm that I have no claims against the
Company for loss of office, arrears of pay or otherwise
howsoever.
2. This resignation is to be effective as at the date hereof.
Yours faithfully,
Exhibit B
Irrevocable Proxy
The undersigned, being the registered legal owner (and as assignee
holder respectively) of one hundred per cent of the number of shares
respectively set against its name at the foot of this proxy of [Name of Owners]
(the "Company"), hereby makes, constitutes and appoints United States Trust
Company of New York (the "Secured Party") the true and lawful attorney and proxy
of the undersigned with full power to appoint a nominee or nominees to act
hereunder from time to time to vote the number of shares set against the names
of the undersigned at the foot of this proxy of the issued share capital of the
Company at all annual and special meetings of shareholders for the Company with
the same force and effect as the undersigned might or could do and the
undersigned hereby ratifies and confirms all that the said attorney or its
nominee or nominees shall do or cause to be done by virtue hereof.
The said shares have been pledged to the Secured Party pursuant to an
Agreement dated as of December 1, 1996.
This power and proxy may not be assigned.
Shareholder No. Of Shares
----------- -------------
Golden State Holdings I Ltd. 1
Xxxxxx Xxxxx Xxxxx 1
IN WITNESS WHEREOF this instrument has been duly executed this ____ day
of December, 1996.
SIGNED, SEALED and DELIVERED
by
the duly authorized Attorney-in-Fact
of Golden State Holdings I Ltd.
in the presence of:
Witness __________________
Witness __________________
TABLE OF CONTENTS
Page No.
--------
ARTICLE I
DEFINITIONS AND INTERPRETATION............................................... 1
Section 1.1. Definitions........................................... 1
Section 1.2. Interpretation........................................ 2
ARTICLE II
SECURITY INTEREST............................................................ 3
Section 2.1. Security Interest..................................... 3
Section 2.2. Delivery of Pledged Collateral........................ 3
Section 2.3. Voting Rights; Dividends; Etc......................... 4
Section 2.4. Capital Adjustments................................... 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR................................ 5
Section 3.1. Representations and Warranties........................ 5
ARTICLE IV
COVENANTS OF THE PLEDGOR..................................................... 7
Section 4.1. Transfers and Other Liens............................. 7
Section 4.2. Additional Shares..................................... 7
Section 4.3. Further Assurances.................................... 7
Section 4.4 Covenants............................................. 7
Section 4.5. Right of Secured Party to Perform for Pledgor......... 7
Section 4.6. Amendment of Corporate Documents...................... 7
Page No.
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ARTICLE V
DEFAULTS; REMEDIES........................................................... 8
Section 5.1. Defaults.............................................. 8
Section 5.2. Remedies on Default................................... 8
Section 5.3. Sale of Pledged Collateral............................ 9
Section 5.4. Secured Party Appointed Attorney-in-Fact.............. 10
Section 5.5. Waivers............................................... 11
Section 5.6. Remedies Cumulative................................... 11
Section 5.7. Delay Does Not Constitute Waiver...................... 12
ARTICLE VI
MISCELLANEOUS................................................................ 12
Section 6.1. Amendment............................................. 12
Section 6.2. Severability.......................................... 12
Section 6.3. Notices............................................... 12
Section 6.4. Consent to Jurisdiction............................... 12
Section 6.5. Captions.............................................. 13
Section 6.6. Governing Law......................................... 13
Section 6.7. No Partnership........................................ 13
Section 6.8. Counterparts.......................................... 13
Section 6.9. Survival.............................................. 13
Section 6.10. Integration........................................... 14
Section 6.11. Reproduction of Documents............................. 14
Page No.
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Section 6.12. Successors and Assigns; Assignment.................... 14
Section 6.13. Effective Date of Transaction......................... 14
Section 6.14. Return of Pledged Shares.............................. 14
