EXHIBIT G
FORM OF
PLEDGE AND SECURITY AGREEMENT
PLEDGE AGREEMENT (as amended, modified, restated and/or
supplemented from time to time, this "Agreement"), dated as of _________ __,
2001, made by each of the undersigned pledgors (each a "Pledgor" and, together
with any other entity that becomes a pledgor hereunder pursuant to Section 25
hereof, the "Pledgors") to CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH,
as collateral agent (in such capacity, together with any successor collateral
agent, the "Pledgee"), for the benefit of the Secured Creditors (as defined
below). Except as otherwise defined herein, all capitalized terms used herein
and defined in the Credit Agreement (as defined below) shall be used herein as
therein defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, General Maritime Corporation (the "Borrower"), the
lenders from time to time party thereto (the "Lenders"), and Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (in such capacity,
together with any successor Administrative Agent, the "Administrative Agent"),
have entered into a Credit Agreement, dated as of _________ __, 2001 (as
amended, modified, restated and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to the Borrower as contemplated
therein (the Lenders, the Administrative Agent and the Pledgee are herein called
the "Lender Creditors") ;
WHEREAS, the Borrower may at any time and from time to time
after the date hereof enter into, or guaranty the obligations of one or more
other Pledgors or any of their respective Subsidiaries under, one or more
Interest Rate Protection Agreements or Other Hedging Agreements with respect to
the Borrower's obligations under the Credit Agreement with one or more Lenders
or any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors" and, together with the Lenders, are
herein called the "Secured Creditors");
WHEREAS, it is a condition precedent to the making of Loans to
the Borrower under the Credit Agreement that each Pledgor shall have executed
and delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in
order to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other
benefits accruing to each Pledgor, the receipt and sufficiency of which are
hereby acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
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1. SECURITY FOR OBLIGATIONS; ESTABLISHMENT OF CONCENTRATION
ACCOUNT.
1.1. SECURITY. This Agreement is made by each Pledgor for the
benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, principal, premium,
interest, fees and indemnities (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any Pledgor at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding)) of such Pledgor to the
Lender Creditors, whether now existing or hereafter incurred under,
arising out of, or in connection with, the Credit Agreement and the
other Credit Documents to which such Pledgor is a party (including, in
the case of each Pledgor that is a Subsidiary Guarantor, all such
obligations, liabilities and indebtedness of such Pledgor under the
Subsidiaries Guaranty) and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in
the Credit Agreement and in such other Credit Documents (all such
obligations, liabilities and indebtedness under this clause (i), except
to the extent consisting of obligations, liabilities or indebtedness
with respect to Interest Rate Protection Agreements or Other Hedging
Agreements, being herein collectively called the "Credit Document
Obligations");
(ii) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations,
liabilities and indebtedness (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any Pledgor at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding) owing by such Pledgor to
the Other Creditors under, or with respect to (including, in the case
of each Pledgor that is a Subsidiary Guarantor, all such obligations,
liabilities and indebtedness of such Pledgor under the Subsidiaries
Guaranty), any Interest Rate Protection Agreement or Other Hedging
Agreement, whether such Interest Rate Protection Agreement or Other
Hedging Agreement is now in existence or hereafter arising, and the due
performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained therein (all such obligations,
liabilities and indebtedness described in this clause (ii) being herein
collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to
preserve the Collateral (as hereinafter defined) or preserve its
security interest in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of such
Pledgor referred to in clauses (i) and (ii) above, after an Event of
Default shall have occurred and be continuing, the reasonable
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expenses of retaking, holding, preparing for sale or lease, selling
or otherwise disposing of or realizing on the Collateral, or of any
exercise by the Pledgee of its rights hereunder, together with
reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of
this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1.1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
1.2. CONCENTRATION ACCOUNTS. The Pledgee has established in
the name and for the benefit of the Pledgee, as agent for the Secured Creditors,
accounts (Account No.: 00000000, Account Name: ALTA LTD Concentration Account;
Account No.: 4060070001, Account Name: ALTA LTD Concentration Account; Account
No.: 4060070002, Account Name: ALTA LTD Concentration Account; Account No.:
00000000, Account Name: BOSS LTD Concentration Account; Account No.: 4060273001,
Account Name: BOSS LTD Concentration Account; Account No.: 4060273002, Account
Name: BOSS LTD Concentration Account; Account No.: 4060927101, Account Name:
GENMAR AGAMEMNON LTD Concentration Account; Account No.: 4060928901, Account
Name: GENMAR AJAX LTD Concentration Account; Account No.: 4063494901, Account
Name: GENMAR ALEXANDRA LTD Concentration Account; Account No.: 4060939601,
Account Name: GENMAR XXXXXXXXXXX LTD Concentration Account; Account No.:
4060934702, Account Name: GENMAR XXXXXXX LTD Concentration Account; Account No.:
4063555701, Account Name: GENMAR XXXXXX LTD Concentration Account; Account No.:
4063510201, Account Name: GENMAR MACEDON LTD Concentration Account; Account No.:
4060938801, Account Name: GENMAR MINOTAUR LTD Concentration Account; Account
No.: 4063556501, Account Name: GENMAR PERICLES LTD Concentration Account;
Account No.: 4063505201, Account Name: GENMAR SPARTIATE LTD Concentration
Account; Account No.: 4060966901, Account Name: GENMAR ZOE LTD Concentration
Account; Account No.: 00000000, Account Name: XXXXXXX LTD Concentration Account;
Account No.: 00000000, Account Name: XXXXXXX LTD Concentration Account; Account
No.: 4061135002, Account Name: XXXXXXX LTD Concentration Account; Account No.:
00000000, Account Name: XXXXXXX LTD Concentration Account; Account No.:
4060931303, Account Name: GENERAL MARITIME CORP. Concentration Account; Account
No.: 00000000, Account Name: NORD LTD EARNINGS Concentration Account; Account
No.: 0000000000, Account Name: NORD LTD EARNINGS Concentration Account; Account
No.: 4062230802, Account Name: NORD LTD RETTENTION Concentration Account;
Account No.: 00000000, Account Name: PACIFIC TANKSHIP LTD Concentration Account;
Account No.: 4062444501, Account Name: PACIFIC TANKSHIP LTD Concentration
Account; Account No.: 4062444502, Account Name: PACIFIC TANKSHIP LTD
Concentration Account; Account No.: 00000000, Account Name: STAVANGER SUN LTD
Concentration Account; Account No.: 4063037601, Account Name: STAVANGER SUN LTD
Concentration Account; Account No.: 4060931304, Account Name: GENERAL MARITIME
CORP Concentration Account) (the "Concentration Accounts") for purposes of this
Agreement, which Concentration Accounts are
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maintained at the Pledgee's office located at 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The Concentration Accounts shall be under the sole
dominion and control of the Pledgee, as agent for the Secured Creditors, and
the Pledgee shall have the sole right to direct withdrawals from the
Concentration Accounts and to exercise all rights with respect to all of the
Earnings Collateral from time to time therein pursuant to the terms of this
Agreement. All Earnings Collateral delivered to or held by or on behalf of the
Pledgee pursuant to the Assignment of Earnings shall be held in the
Concentration Accounts in accordance with the provisions thereof.
2. DEFINITIONS. (a) Unless otherwise defined herein, all
capitalized terms used herein and defined in the Credit Agreement shall be used
herein as therein defined. Reference to singular terms shall include the plural
and vice versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADMINISTRATIVE AGENT" has the meaning set forth in the
Recitals hereto.
"ADVERSE CLAIM" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"AGREEMENT" has the meaning set forth in the first paragraph
hereof.
"BORROWER" has the meaning set forth in the Recitals hereto.
"CERTIFICATED SECURITY" has the meaning given such term in
Section 8-102(a)(4) of the UCC.
"CLEARING CORPORATION" has the meaning given such term in
Section 8-102(a)(5) of the UCC.
"COLLATERAL" has the meaning set forth in Section 3.1 hereof.
"CONCENTRATION ACCOUNTS" has the meaning set forth in Section
1.2 hereof and shall, in any event, include the Primary Concentration Account.
"CREDIT AGREEMENT" has the meaning set forth in the Recitals
hereto.
"CREDIT DOCUMENT OBLIGATIONS" has the meaning set forth in
Section 1.1(i) hereof.
"EARNINGS COLLATERAL" shall mean, collectively, all of the
collateral granted, sold, conveyed, assigned, transferred, mortgaged and pledged
pursuant to, and in accordance with, Section 1 of each Assignment of Earnings.
"EVENT OF DEFAULT" means any Event of Default under, and as
defined in, the Credit Agreement and any payment default under any Interest Rate
Protection Agreement or Other Hedging Agreement after any applicable grace
period.
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"INDEMNITEES" has the meaning set forth in Section 11 hereof.
"LENDER CREDITORS" has the meaning set forth in the Recitals
hereto.
"LENDERS" has the meaning set forth in the Recitals hereto.
"LIMITED LIABILITY COMPANY ASSETS" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"LIMITED LIABILITY COMPANY INTERESTS" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"OBLIGATIONS" has the meaning set forth in Section 1.1 hereof.
"OTHER CREDITORS" has the meaning set forth in the Recitals
hereto.
"OTHER OBLIGATIONS" has the meaning set forth in Section
1.1(ii) hereof.
"PARTNERSHIP ASSETS" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"PARTNERSHIP INTEREST" means the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"PERSON" means any individual, partnership, joint venture,
firm, corporation, association, limited liability company, trust or other
enterprise or any government or political subdivision or any agency, department
or instrumentality thereof.
"PLEDGEE" has the meaning set forth in the first paragraph
hereof.
"PLEDGOR" has the meaning set forth in the first paragraph
hereof.
"PRIMARY CONCENTRATION ACCOUNT" shall have the meaning
provided in Section 20(c).
"PROCEEDS" has the meaning given such term in Section 9-306(l)
of the UCC.
"REQUIRED SECURED CREDITORS" means (i) at any time when any
Credit Document Obligations are outstanding or any Commitments under the Credit
Agreement exist, the Required Lenders (or, to the extent provided in Section
13.12 of the Credit Agreement, each of the Lenders), and (ii) at any time after
all of the Credit Document Obligations have been paid in full in cash and all
Commitments under the Credit Agreement have been terminated and if any Other
Obligations are outstanding, the holders of a majority of the Other Obligations.
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"SECURED CREDITORS" has the meaning set forth in the Recitals
hereto.
"SECURED DEBT AGREEMENTS" means and includes this Agreement,
the other Credit Documents and the Interest Rate Protection Agreements and Other
Hedging Agreements entered into with any Other Creditors.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
as in effect from time to time.
"SECURITY" and "SECURITIES" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock.
"SECURITY ENTITLEMENT" has the meaning given such term in
Section 8-102(a)(17) of the UCC.
"STOCK" means all of the issued and outstanding shares of
capital stock of any corporation at any time owned by any Pledgor.
"SUBSIDIARY" means, as to any Person, (i) any corporation more
than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"TERMINATION DATE" has the meaning set forth in Section 20
hereof.
"UCC" means the Uniform Commercial Code as in effect in the
State of New York from time to time; PROVIDED that all references herein to
specific sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"UNCERTIFICATED SECURITY" has the meaning given such term in
Section 8-102(a)(18) of the UCC.
3. PLEDGE OF STOCK, ACCOUNTS, ETC.
3.1 PLEDGE. To secure the Obligations now or hereafter owed or
to be performed by such Pledgor, each Pledgor does hereby grant, pledge and
assign to the Pledgee for the benefit of the Secured Creditors, and does hereby
create a continuing first priority security interest in favor of the Pledgee for
the benefit of the Secured Creditors in, all of the right, title and interest in
and to the following, whether now existing or hereafter from time to time
acquired (collectively, the "Collateral"):
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(a) the Concentration Accounts, together with all of the
Pledgor's right, title and interest in and to all sums of property
(including cash equivalents and other investments) now or at any time
hereafter on deposit therein, credited thereto or payable thereon, and
all instruments, documents and other writings evidencing the
Concentration Accounts;
(b) all Stock of any Subsidiary Guarantor owned by such
Pledgor from time to time and all options and warrants owned by such
Pledgor from time to time to purchase Stock of any Subsidiary
Guarantor;
(c) all Limited Liability Company Interests in any Subsidiary
Guarantor owned by such Pledgor from time to time and all of its right,
title and interest in each limited liability company to which each such
interest relates, whether now existing or hereafter acquired,
including, without limitation, to the fullest extent permitted under
the terms and provisions of the documents and agreements governing such
Limited Liability Company Interests and applicable law:
(A) all the capital thereof and its interest in all
profits, losses, Limited Liability Company Assets and other
distributions to which such Pledgor shall at any time be
entitled in respect of such Limited Liability Company
Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Limited Liability Company Interests,
whether under any limited liability company agreement or
otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any limited liability company agreement or
operating agreement, or at law or otherwise in respect of such
Limited Liability Company Interests;
(D) all present and future claims, if any, of such
Pledgor against any such limited liability company for moneys
loaned or advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited
liability company agreement or operating agreement or at law
to exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such Limited
Liability Company Interests, including any power to terminate,
cancel or modify any limited liability company agreement or
operating agreement, to execute any instruments and to take
any and all other action on behalf of and in the name of any
of such Pledgor in respect of such Limited Liability Company
Interests and any such limited liability company, to make
determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or
receive any notice, consent, amendment, waiver or approval,
together with full power and authority to demand, receive,
enforce, collect or receipt for
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any of the foregoing or for any Limited Liability Company
Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any
action in connection with any of the foregoing; and
(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof;
(d) all Partnership Interests in any Subsidiary Guarantor
owned by such Pledgor from time to time and all of its right, title and
interest in each partnership to which each such interest relates,
whether now existing or hereafter acquired, including, without
limitation, to the fullest extent permitted under the terms and
provisions of the documents and agreements governing such Partnership
Interests and applicable law:
(A) all the capital thereof and its interest in all
profits, losses, Partnership Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of
such Partnership Interests;
(B) all other payments due or to become due to such
Pledgor in respect of Partnership Interests, whether under any
partnership agreement or otherwise, whether as contractual
obligations, damages, insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if
any, under any partnership agreement or operating agreement,
or at law or otherwise in respect of such Partnership
Interests;
(D) all present and future claims, if any, of such
Pledgor against any such partnership for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any
partnership agreement or operating agreement or at law to
exercise and enforce every right, power, remedy, authority,
option and privilege of such Pledgor relating to such
Partnership Interests, including any power to terminate,
cancel or modify any partnership agreement or operating
agreement, to execute any instruments and to take any and all
other action on behalf of and in the name of any of such
Pledgor in respect of such Partnership Interests and any such
partnership, to make determinations, to exercise any election
(including, but not limited to, election of remedies) or
option or to give or receive any notice, consent, amendment,
waiver or approval, together with full power and authority to
demand, receive, enforce, collect or receipt for any of the
foregoing or for any Partnership Asset, to enforce or execute
any checks, or other instruments or orders, to file any claims
and to take any action in connection with any of the
foregoing; and
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(F) all other property hereafter delivered in
substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such
other property and all cash, securities, interest, dividends,
rights and other property at any time and from time to time
received, receivable or otherwise distributed in respect of or
in exchange for any or all thereof; and
(e) all Proceeds of any and all of the foregoing.
3.2. PROCEDURES. (a) To the extent that any Pledgor at any
time or from time to time owns, acquires or obtains any right, title or interest
in any Collateral, such Collateral shall automatically (and without the taking
of any action by the respective Pledgor) be pledged pursuant to Section 3.1 of
this Agreement and, in addition thereto, such Pledgor shall (to the extent
provided below) take, or, in the case of Section 3.2(a)(v), authorize the
Pledgee to take, the following actions as set forth below (as promptly as
practicable and, in any event, within 30 days after it obtains such Collateral)
for the benefit of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall deliver such Certificated Security to the
Pledgee with powers executed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing
Corporation), the respective Pledgor shall cause the issuer of such
Uncertificated Security (or, in the case of an issuer that is not a
Subsidiary of such Pledgor, will use reasonable efforts to cause such
issuer) to duly authorize and execute, and deliver to the Pledgee, an
agreement for the benefit of the Pledgee and the other Secured
Creditors substantially in the form of Annex G hereto (appropriately
completed to the reasonable satisfaction of the Pledgee and with such
modifications, if any, as shall be reasonably satisfactory to the
Pledgee) pursuant to which such issuer agrees to comply with any and
all instructions originated by the Pledgee without further consent by
the registered owner and not to comply with instructions regarding such
Uncertificated Security originated by any other Person other than a
court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust
Company), the respective Pledgor shall promptly notify the Pledgee
thereof and shall promptly take all actions required (i) to comply in
all material respectes with the applicable rules of such Clearing
Corporation and (ii) to perfect the security interest of the Pledgee
under applicable law (including, in any event, under Sections 9-115
(4)(a) and (b), 9-115 (1)(e) and 8-106(d) of the UCC). The Pledgor
further agrees to take such actions as the Pledgee deems reasonably
necessary to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited
Liability Company Interest (other than a Partnership Interest or
Limited Liability Interest credited on the books of a Clearing
Corporation), (1) if such Partnership Interest or Limited Liability
Company
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Interest is represented by a certificate and is a Security for
purposes of the UCC, the procedure set forth in Section 3.2(a)(i)
hereof, and (2) if such Partnership Interest or Limited Liability
Company Interest is not represented by a certificate or is not a
Security for purposes of the UCC, the procedure set forth in Section
3.2(a)(ii) hereof; and
(v) with respect to cash proceeds from any of the Collateral
described in Section 3.1 hereof which are not released to such Pledgor
in accordance with Section 6 hereof, (i) establishment by the Pledgee
of a cash account in the name of such Pledgor over which the Pledgee
shall have exclusive and absolute control and dominion (and no
withdrawals or transfers may be made therefrom by any Person except
with the prior written consent of the Pledgee) and (ii) deposit of such
cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, each Pledgor shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Pledgor whereby or
with respect to which the Pledgee may obtain "control" thereof within
the meaning of Section 8-106 of the UCC (or under any provision of the
UCC as same may be amended or supplemented from time to time, or under
the laws of any relevant State other than the State of New York), the
respective Pledgor shall take all actions as may be reasonably
requested from time to time by the Pledgee so that "control" of such
Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under
the Uniform Commercial Code as in effect in the various relevant
states, covering all Collateral hereunder (with the form of such
financing statements to be satisfactory to the Pledgee), to be filed in
the relevant filing offices so that at all times the Pledgee has a
security interest in all Collateral which is perfected by the filing of
such financing statements (in each case to the maximum extent
perfection by filing may be obtained under the laws of the relevant
states, including, without limitation, Section 9-115(4)(b) of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. If any Pledgor shall
acquire (by purchase, stock dividend or similar distribution or otherwise) any
additional Collateral at any time or from time to time after the date hereof,
such Collateral shall automatically (and without any further action being
required to be taken) be subject to the pledge and security interests created
pursuant to Section 3.1 hereof and, furthermore, the respective Pledgor will
promptly thereafter take (or cause to be taken) all action with respect to such
Collateral in accordance with the procedures set forth in Section 3.2 hereof,
and will promptly thereafter deliver to the Pledgee (i) a certificate executed
by a principal executive officer of such Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes A
through F hereto as are reasonably necessary to cause such annexes to be
complete and accurate at such time.
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3.4. TRANSFER TAXES. Each pledge of Collateral under Section
3.1 or Section 3.3 hereof shall be accompanied by any transfer tax stamps
required in connection with the pledge of such Collateral.
3.5. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. Each Pledgor represents and warrants that on the date hereof: (i)
the jurisdiction of organization of such Pledgor, and such Pledgor's
organizational identification number, is listed on Annex A hereto; (ii) each
Subsidiary of such Pledgor that is a Subsidiary Guarantor is listed in Annex B
hereto; (iii) the Stock (and any warrants or options to purchase Stock) of any
Subsidiary Guarantor held by such Pledgor consists of the number and type of
shares of the stock (or warrants or options to purchase any stock) of the
corporations as described in Annex C hereto; (iv) such Stock constitutes that
percentage of the issued and outstanding capital stock of the respective
Subsidiary Guarantors as is set forth in Annex C hereto; (v) the Limited
Liability Company Interests in any and all Subsidiary Guarantors held by such
Pledgor consist of the number and type of interests of the respective Subsidiary
Guarantors described in Annex D hereto; (vi) each such Limited Liability Company
Interest constitutes that percentage of the issued and outstanding equity
interest of the respective Subsidiary Guarantors as set forth in Annex D hereto;
(vii) the Partnership Interests held by such Pledgor in any and all Subsidiary
Guarantors consist of the number and type of interests of the respective
Subsidiary Guarantors described in Annex E hereto; (viii) each such Partnership
Interest constitutes that percentage or portion of the entire partnership
interest of the Partnership as set forth in Annex E hereto; (ix) the Pledgor has
complied with the respective procedure set forth in Section 3.2(a) hereof with
respect to each item of Collateral described in Annexes B through E hereto; and
(xi) on the date hereof, such Pledgor owns no other [Stock][Securities], Limited
Liability Company Interests or Partnership Interests.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until
there shall have occurred and be continuing an Event of Default, each Pledgor
shall be entitled to exercise any and all voting and other consensual rights
pertaining to the Collateral owned by it, and to give consents, waivers or
ratifications in respect thereof; PROVIDED that, in each case, no vote shall be
cast or any consent, waiver or ratification given or any action taken or omitted
to be taken which would violate or be inconsistent with any of the terms of any
Secured Debt Agreement, or which could reasonably be expected to have the effect
of impairing the value of the Collateral or any part thereof or the position or
interests of the Pledgee or any other Secured Creditor in the Collateral unless
expressly permitted by the terms of the Secured Debt Agreements. All such rights
of each Pledgor to vote and to give consents, waivers and ratifications shall
cease in case an Event of Default has occurred and is continuing, and Section 7
hereof shall become applicable.
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6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there
shall have occurred and be continuing an Event of Default, all cash dividends,
cash distributions, cash Proceeds and other cash amounts payable in respect of
the Collateral shall be paid to the respective Pledgor. The Pledgee shall be
entitled to receive directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash dividends
other than as set forth above in the first sentence of this Section 6)
paid or distributed by way of dividend or otherwise in respect of the
Collateral;
(ii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) paid or
distributed in respect of the Collateral by way of stock-split,
spin-off, split-up, reclassification, combination of shares or similar
rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other
securities or property (including, but not limited to, cash) which may
be paid in respect of the Collateral by reason of any consolidation,
merger, exchange of stock, conveyance of assets, liquidation or similar
corporate or other reorganization.
All dividends, distributions or other payments which are received by any Pledgor
contrary to the provisions of this Section 6 and Section 7 hereof shall be
received in trust for the benefit of the Pledgee, shall be segregated from other
property or funds of such Pledgor and shall be forthwith paid over and/or
delivered to the Pledgee as Collateral in the same form as so received (with any
necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If there shall
have occurred and be continuing an Event of Default, then and in every such
case, the Pledgee shall be entitled to exercise all of the rights, powers and
remedies (whether vested in it by this Agreement, any other Secured Debt
Agreement or by law) for the protection and enforcement of its rights in respect
of the Collateral, and the Pledgee shall be entitled to exercise all the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the
Collateral otherwise payable under Section 6 hereof to the respective
Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Collateral (whether or
not transferred into the name of the Pledgee) and give all consents,
waivers and ratifications in respect of the Collateral and otherwise
act with respect thereto as though it were the outright owner
Page 13
thereof (each Pledgor hereby irrevocably constituting and appointing
the Pledgee the proxy and attorney-in-fact of such Pledgor, with full
power of substitution to do so);
(iv) at any time and from time to time to sell, assign and
deliver, or grant options to purchase, all or any part of the
Collateral, or any interest therein, at any public or private sale,
without demand of performance, advertisement or notice of intention to
sell or of the time or place of sale or adjournment thereof or to
redeem or otherwise (all of which are hereby waived by each Pledgor),
for cash, on credit or for other property, for immediate or future
delivery without any assumption of credit risk, and for such price or
prices and on such terms as the Pledgee in its absolute discretion may
determine, PROVIDED that at least 10 days' written notice of the time
and place of any such sale shall be given to the respective Pledgor.
The Pledgee shall not be obligated to make any such sale of Collateral
regardless of whether any such notice of sale has theretofore been
given. Each Pledgor hereby waives and releases to the fullest extent
permitted by law any right or equity of redemption with respect to the
Collateral, whether before or after sale hereunder, and all rights, if
any, of marshalling the Collateral and any other security for the
Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid
for and purchase all or any part of the Collateral so sold free from
any such right or equity of redemption. Neither the Pledgee nor any
other Secured Creditor shall be liable for failure to collect or
realize upon any or all of the Collateral or for any delay in so doing
nor shall any of them be under any obligation to take any action
whatsoever with regard thereto; and;
(v) to set-off any and all Collateral against any and all
Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to exercise any
such right, power or remedy shall operate as a waiver thereof. No notice to or
demand on any Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Pledgee, in each case acting upon the instructions of the Required Lenders (or,
after the date on which all Credit Document Obligations have been paid in full,
the holders of at least a majority of the outstanding Other Obligations) and
that no other Secured Creditor shall have any right individually to seek to
enforce or to enforce this Agreement or to realize upon the security to be
granted hereby, it being understood and agreed that such rights and remedies may
be exercised by the Pledgee for the benefit of the Secured Creditors upon the
terms of this Agreement.
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9. APPLICATION OF PROCEEDS. (a) All monies collected by the
Pledgee upon any sale or other disposition of the Collateral of each Pledgor,
together with all other monies received by the Pledgee hereunder (except to the
extent released in accordance with the applicable provisions of this Agreement
or any other Credit Document), shall be applied to the payment of the
Obligations as follows:
(i) first, to the payment of all amounts owing the Pledgee of
the type described in clauses (iii) and (iv) of Section 1.1;
(ii) second, to the extent proceeds remain after the
application pursuant to the preceding clause (i), an amount equal to
the outstanding Primary Obligations constituting Credit Document
Obligations shall be paid to the Lenders as provided in Section 9(d)
hereof, with each Lender receiving an amount equal to such outstanding
Primary Obligations constituting Credit Document Obligations or, if the
proceeds are insufficient to pay in full all such Primary Obligations
constituting Credit Document Obligations, its Pro Rata Share of the
amount remaining to be distributed;
(iii) third, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) and (ii), an amount
equal to the outstanding Primary Obligations constituting Other
Obligations shall be paid to the Other Creditors as provided in Section
9(d) hereof, with each Other Creditor receiving an amount equal to such
outstanding Primary Obligations constituting Other Obligations or, if
the proceeds are insufficient to pay in full all such Primary
Obligations constituting Other Obligations, its Pro Rata Share of the
amount remaining to be distributed;
(iv) fourth, to the extent proceeds remain after the
application pursuant to the preceding clauses (i) through (iii),
inclusive, an amount equal to the outstanding Secondary Obligations
shall be paid to the Secured Creditors as provided in Section 9(d)
hereof, with each Secured Creditor receiving an amount equal to its
outstanding Secondary Obligations or, if the proceeds are insufficient
to pay in full all such Secondary Obligations, its Pro Rata Share of
the amount remaining to be distributed; and
(v) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iv), inclusive, and
following the termination of this Agreement pursuant to Section 20
hereof, to the relevant Pledgor or to whomever may be lawfully entitled
to receive such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall
mean, when calculating a Secured Creditor's portion of any distribution or
amount, that amount (expressed as a percentage) equal to a fraction the
numerator of which is the then unpaid amount of such Secured Creditor's Primary
Obligations or Secondary Obligations, as the case may be, and the denominator of
which is the then outstanding amount of all Primary Obligations or Secondary
Obligations, as the case may be, (y) "Primary Obligations" shall mean (i) in the
case of the Credit Document Obligations, all principal of, and interest on, all
Loans and all fees incurred under the Credit Agreement and (ii) in the case of
the Other Obligations, all amounts due under such Interest Rate Protection
Agreements (other than indemnities, fees (including, without limitation,
Page 15
attorneys' fees) and similar obligations and liabilities) and (z) "Secondary
Obligations" shall mean all Obligations other than Primary Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 9 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made
(x) if to the Lender Creditors, to the Administrative Agent under the Credit
Agreement for the account of the Lender Creditors, and (y) if to the Other
Creditors, to the trustee, paying agent or other similar representative (each a
"Representative") for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For purposes of applying payments received in accordance
with this Section 9, the Pledgee shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
the Other Creditors or, in the absence of such a Representative, upon the Other
Creditors for a determination (which the Administrative Agent, each
Representative for any Other Creditors and the Secured Creditors agree (or shall
agree) to provide upon request of the Pledgee) of the outstanding Primary
Obligations and Secondary Obligations owed to the Lender Creditors or the Other
Creditors, as the case may be. Unless it has actual knowledge (including by way
of written notice from a Lender Creditor or an Other Creditor) to the contrary,
the Administrative Agent and each Representative, in furnishing information
pursuant to the preceding sentence, and the Pledgee, in acting hereunder, shall
be entitled to assume that no Secondary Obligations are outstanding. Unless it
has actual knowledge (including by way of written notice from an Other Creditor)
to the contrary, the Pledgee, in acting hereunder, shall be entitled to assume
that no Interest Rate Protection Agreements are in existence.
(f) It is understood and agreed that each Pledgor shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral pledged by it hereunder and the aggregate
amount of the Obligations of such Pledgor.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral
by the Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser
Page 16
or purchasers shall not be obligated to see to the application of any part of
the purchase money paid over to the Pledgee or such officer or be answerable in
any way for the misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i)
to indemnify and hold harmless the Pledgee and each other Secured Creditor and
their respective successors, assigns, employees, agents and affiliates
(individually an "Indemnitee," and collectively the "Indemnitees") from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent incurred by
reason of gross negligence or willful misconduct of such Indemnitee (as
determined by a court of competent jurisdiction in a final and non-appealable
decision)). In no event shall the Pledgee be liable, in the absence of gross
negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for monies actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of any Pledgor under this Section 11 are unenforceable for any
reason, such Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER.
(a) Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Partnership Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor, any Pledgor
and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a)
of this Section 12, the Pledgee, by accepting this Agreement, did not intend to
become a member of any limited liability company or a partner of any partnership
or otherwise be deemed to be a co-venturer with respect to any Pledgor, any
limited liability company, partnership and/or any other Person either before or
after an Event of Default shall have occurred. The Pledgee shall have only those
powers set forth herein and the Secured Creditors shall assume none of the
duties, obligations or liabilities of a member of any limited liability company
or as a partner of any partnership or any Pledgor except as provided in the last
sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
Page 17
(d) The acceptance by the Pledgee of this Agreement, with all
the rights, powers, privileges and authority so created, shall not at any time
or in any event obligate the Pledgee or any other Secured Creditor to appear in
or defend any action or proceeding relating to the Collateral to which it is not
a party, or to take any action hereunder or thereunder, or to expend any money
or incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor
agrees that it will join with the Pledgee in executing and, at such Pledgor's
own expense, file and refile under the Uniform Commercial Code or other
applicable law such financing statements, continuation statements and other
documents in such offices as the Pledgee may deem reasonably necessary and
wherever required by law in order to perfect and preserve the Pledgee's security
interest in the Collateral and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of the Collateral
without the signature of such Pledgor where permitted by law, and agrees to do
such further acts and things and to execute and deliver to the Pledgee such
additional conveyances, assignments, agreements and instruments as the Pledgee
may reasonably require or deem necessary to carry into effect the purposes of
this Agreement or to further assure and confirm unto the Pledgee its rights,
powers and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance
with this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Section 12 of the Credit Agreement. The Pledgee shall act
hereunder on the terms and conditions set forth herein and in Section 12 of the
Credit Agreement.
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or
otherwise dispose of, grant any option with respect to, or mortgage, pledge or
otherwise encumber any of the Collateral or any interest therein (except as may
be permitted in accordance with the terms of the Secured Debt Agreements).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS.
(a) Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has
good and marketable title to, all Collateral pledged by such Pledgor
hereunder and that it has sufficient interest
Page 18
in all Collateral pledged by such Pledgor hereunder in which a security
interest is purported to be created hereunder for such security
interest to attach (subject, in each case, to no pledge, lien,
mortgage, hypothecation, security interest, charge, option, Adverse
Claim or other encumbrance whatsoever, except the liens and security
interests created by this Agreement and Permitted Liens);
(ii) it has the corporate, limited partnership or limited
liability company power and authority, as the case may be, to pledge
all the Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in
accordance with its terms, except to the extent that the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws generally affecting
creditors' rights and by equitable principles (regardless of whether
enforcement is sought in equity or at law);
(iv) except to the extent already obtained or made, or, in the
case of any filings or recordings of the Security Documents (other than
the Vessel Mortgages) executed on or before the Initial Borrowing Date,
to be made within 10 days of the Initial Borrowing Date, no consent of
any other party (including, without limitation, any stockholder,
partner, member or creditor of such Pledgor or any of its Subsidiaries)
and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required to be obtained
by such Pledgor in connection with (a) the execution, delivery or
performance by such Pledgor of this Agreement, (b) the legality,
validity, binding effect or enforceability of this Agreement, (c) the
perfection or enforceability of the Pledgee's security interest in the
Collateral pledged by such Pledgor hereunder or (d) except for
compliance with or as may be required by applicable securities laws,
the exercise by the Pledgee of any of its rights or remedies provided
herein;
(v) the execution, delivery and performance of this Agreement
will not violate any provision of any applicable law or regulation or
of any order, judgment, writ, award or decree of any court, arbitrator
or governmental authority, U.S. or non-U.S., applicable to such
Pledgor, or of the certificate or articles of incorporation,
certificate of formation, operating agreement, limited liability
company agreement, partnership agreement or by-laws of such Pledgor, as
applicable, or of any securities issued by such Pledgor or any of its
Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which such Pledgor or any of its
Subsidiaries is a party or which purports to be binding upon such
Pledgor or any of its Subsidiaries or upon any of their respective
assets and will not result in the creation or imposition of (or the
obligation to create or impose) any lien or encumbrance on any of the
assets of such Pledgor or any of its Subsidiaries which are Credit
Parties, except as contemplated by this Agreement;
Page 19
(vi) all of the Collateral has been duly and validly issued
and acquired, is fully paid and non-assessable and is subject to no
options to purchase or similar rights;
(vii) the pledge and collateral assignment to, and possession
by, the Pledgee of the Collateral pledged by such Pledgor hereunder
consisting of Certificated Securities pursuant to this Agreement
creates a valid and perfected first priority security interest in such
Certificated Securities, and the proceeds thereof, subject to no prior
Lien or to any agreement purporting to grant to any third party a Lien
on the property or assets of such Pledgor which would include the
Certificated Securities, except for Permitted Liens, and the Pledgee is
entitled to all the rights, priorities and benefits afforded by the UCC
or other relevant law as enacted in any relevant jurisdiction to
perfect security interests in respect of such Collateral; and;
(viii) "control" (as defined in Section 8-106 of the UCC) has
been obtained by the Pledgee over all Collateral pledged by such
Pledgor hereunder consisting of Stock with respect to which such
"control" may be obtained pursuant to Section 8-106 of the UCC, and
"control" (as defined in Section 9-104 of Revised Article 9 (to the
extent such Revised Article 9 remains in effect on or after July 1,
2001 in any applicable jurisdiction)) has been obtained by the Pledgee
over all Concentration Accounts with respect to which such "control"
may be obtained pursuant ot Section 9-104 of Revised Article 9 of the
UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Collateral and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
17. JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE;
RECORDS. The jurisdiction of organization of each Pledgor is specified in Annex
A hereto. The chief executive office of each Pledgor is located at the address
specified in Annex F hereto. Each Pledgor will not change the jurisdiction of
its organization or move its chief executive office except to such new
jurisdiction or location as such Pledgor may establish in accordance with the
last sentence of this Section 17. The originals of all documents in the
possession of such Pledgor evidencing all Collateral, including but not limited
to all Limited Liability Company Interests and Partnership Interests, and the
only original books of account and records of such Pledgor relating thereto are,
and will continue to be, kept at such chief executive office as specified in
Annex F hereto, or at such new locations as such Pledgor may establish in
accordance with the last sentence of this Section 17. All Limited Liability
Company Interests and Partnership Interests are, and will continue to be,
maintained at, and controlled and directed (including, without limitation, for
general accounting purposes) from, such chief executive office as specified in
Annex F hereto, or such new locations as such Pledgor may establish in
accordance with the last sentence of this Section 17. No Pledgor shall establish
a new jurisdiction of organization or a new location for such chief executive
offices until (i) it shall have given to the Pledgee not less than 15 days'
prior written notice of its intention so to do,
Page 20
providing clear details of such new jurisdiction of organization or new
location, as the case may be, and providing such other information in
connection therewith as the Pledgee may reasonably request, and (ii) with
respect to such new jurisdiction of organization or new location, as the case
may be, it shall have taken all action, satisfactory to the Pledgee (and, to
the extent applicable, in accordance with Section 3.2 hereof), to maintain the
security interest of the Pledgee in the Collateral intended to be granted
hereby at all times fully perfected and in full force and effect. Promptly
after establishing a new jurisdiction of organization or new location for such
chief executive offices in accordance with the immediately preceding sentence,
the respective Pledgor shall deliver to the Pledgee a supplement to Annex A
hereto or Annex F hereto, as the case may be, so as to cause such Annex A or F,
as the case may be, to be complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of
each Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing (it being
understood and agreed that the enforcement hereof may be limited by applicable
bankruptcy, insolvency, restructuring, moratorium or other similar laws
generally affecting creditors' rights and by equitable principles).
19. REGISTRATION, ETC. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the Collateral
consisting of Stock, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7 hereof, and the Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In
Page 21
the event of any such sale, the Pledgee shall incur no responsibility or
liability for selling all or any part of the Collateral at a price which the
Pledgee, in its sole and absolute discretion, in good xxxxx xxxxx reasonable
under the circumstances, notwithstanding the possibility that a substantially
higher price might be realized if the sale were deferred until after
registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will as promptly as practicable execute and deliver
to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement or any other Credit Document,
together with any monies at the time held by the Pledgee or any of its
sub-agents hereunder. As used in this Agreement, "Termination Date" shall mean
the date upon which the Total Commitments under the Credit Agreement have been
terminated and all Interest Rate Protection Agreements and Other Hedging
Agreements entered into with any Other Creditors have been terminated, no Note
under the Credit Agreement is outstanding and all Loans thereunder have been
repaid in full and all Obligations then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by the Secured Debt Agreements (other than a
sale to any Pledgor or any Subsidiary thereof) or is otherwise released with the
consent of the Required Secured Creditors and the proceeds of such sale or sales
or from such release are applied in accordance with the provisions of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of the respective Pledgor, will duly assign, transfer and deliver to
such Pledgor (without recourse and without any representation or warranty) such
of the Collateral (and releases therefor) as is then being (or has been) so sold
or released and has not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires to close a
Concentration Account, it shall, with the consent of the Pledgee, redirect the
contents of such Concentration Account, and all future deposits required to be
made in such Concentration Account, to Account No.: [_________], Account Name:
[__________] Concentration Account (the "Primary Concentration Account").
(d) At any time that a Pledgor desires that the Pledgee
assign, transfer and deliver Collateral (and releases therefor) as provided in
Section 20(a) or (b) hereof, it shall deliver to the Pledgee a certificate
signed by a principal executive officer of such Pledgor stating that the release
of the respective Collateral is permitted pursuant to such Section 20(a) or (b).
(e) The Pledgee shall have no liability whatsoever to any
other Secured Creditor as the result of any release of Collateral by it in
accordance with this Section 20.
Page 22
21. NOTICES, ETC. Except as otherwise expressly provided
herein, all notices and other communications provided for hereunder shall be in
writing (including telexed, telegraphic or telecopier communication) and mailed,
telexed, telecopied or delivered: if to any Pledgor, at
____________________________________, with copies to Xxxxxx Xxxxx Xxxxxxxx &
Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention __________,
Telephone No.: (000) 000-0000, Telecopier No.: (000) 000-0000; if to any Lender
Creditor, at its address specified opposite its name on Schedule II to the
Credit Agreement; and if to the Pledgee, at 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Hans Chr. Kjelsrud, Telephone No.: (212)
000-0000, Telecopier No.: (000) 000-0000; or, as to any other Credit Party, at
such other address as shall be designated by such party in a written notice to
the other parties hereto and, as to each Other Creditor, at such other address
as shall be designated by such Secured Creditor in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, (i) when mailed, be effective three Business Days after being deposited
in the mails, prepaid and properly addressed for delivery, (ii) when sent by
overnight courier, be effective one Business Day after delivery to the overnight
courier prepaid and properly addressed for delivery on such next Business Day,
or (iii) when sent by telex or telecopier, be effective when sent by telex or
telecopier, except that notices and communications to the Pledgee or any Pledgor
shall not be effective until received by the Pledgee or such Pledgor, as the
case may be.
22. WAIVER; AMENDMENT. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in any manner
whatsoever except in writing duly signed by each Pledgor directly affected
thereby and the Pledgee (with the written consent of the Required Secured
Creditors); PROVIDED, that any change, waiver, modification or variance
affecting the rights and benefits of a single Class (as defined below) of
Secured Creditors (and not all Secured Creditors in a like or similar manner)
shall also require the written consent of the Requisite Creditors (as defined
below) of such affected Class. For the purpose of this Agreement, the term
"Class" shall mean each class of Secured Creditors, I.E., whether (i) the Lender
Creditors as holders of the Credit Document Obligations or (ii) the Other
Creditors as the holders of the Other Obligations. For the purpose of this
Agreement, the term "Requisite Creditors" of any Class shall mean each of (i)
with respect to the Credit Document Obligations, the Required Lenders and (ii)
with respect to the Other Obligations, the holders of at least a majority of all
obligations outstanding from time to time under the Interest Rate Protection
Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns and shall inure to
the benefit of and be enforceable by each of the parties hereto and its
successors and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement except in accordance with the terms of the
Secured Debt Agreements. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES (OTHER
THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW). EACH PARTY TO THIS
AGREEMENT IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
Page 23
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. The
headings in this Agreement are for purposes of reference only and shall not
limit or define the meaning hereof. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
shall constitute one instrument. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement which shall
remain binding on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement shall
automatically become a Pledgor hereunder by (x) executing a counterpart hereof
and/or a Subsidiary assumption agreement, in each case in form and substance
satisfactory to the Pledgee, (y) delivering supplements to Annexes A through G
hereto as are necessary to cause such Annexes to be complete and accurate with
respect to such additional Pledgor on such date and (z) taking all actions as
specified in Section 3 of this Agreement as would have been taken by such
Pledgor had it been an original party to this Agreement, in each case with all
documents required above to be delivered to the Pledgee and with all actions
required to be taken above to be taken to the reasonable satisfaction of the
Pledgee.
26. RELEASE OF GUARANTORS. In the event any Pledgor which is a
Subsidiary of the Borrower is released from its obligations pursuant to the
Subsidiaries Guaranty, such Pledgor (so long as not the Borrower) shall be
released from this Agreement and this Agreement shall, as to such Pledgor only,
have no further force or effect.
* * * *
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused
this Agreement to be executed by their duly elected officers duly authorized as
of the date first above written.
GENERAL MARITIME CORPORATION,
as a Pledgor
------------------------------------
Name:
Title:
[INSERT ANY OTHER PLEDGORS],
as a Pledgor
------------------------------------
Name:
Title:
Accepted and Agreed to:
CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH,
as Pledgee
By:
------------------------------------
Name:
Title:
ANNEX A
to
PLEDGE AGREEMENT
EXACT LEGAL NAME OF EACH PLEDGOR
AND JURISDICTION OF ORGANIZATION
Name of Pledgor Jurisdiction of Organization Organizational Identification
--------------- ---------------------------- -----------------------------
Number
------
ANNEX B
to
PLEDGE AGREEMENT
LIST OF SUBSIDIARIES
ANNEX C
to
PLEDGE AGREEMENT
LIST OF STOCK
Name of
Issuing Type of Number of Certificate Percentage Sub-clause of Section 3.2(a)
Corporation Shares Shares No. Owned of Pledge Agreement
----------- -------- ------------ ------------- ----------- -------------------
ANNEX D
to
PLEDGE AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
Name of Type of Sub-clause of Section 3.2(a)
Limited Liability Company Interest Percentage Owned of Pledge Agreement
------------------------- -------- ---------------- ---------------------------
ANNEX E
to
PLEDGE AGREEMENT
LIST OF PARTNERSHIP INTERESTS
Name of Type of Sub-clause of Section 3.2(a)
Partnership Interest Percentage Owned of Pledge Agreement
----------- -------- ---------------- ----------------------------
ANNEX F
to
PLEDGE AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
ANNEX G
to
PLEDGE AGREEMENT
FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED LIABILITY
COMPANY INTERESTS AND PARTNERSHIP INTERESTS
AGREEMENT (as amended, modified or supplemented from time to
time, this "Agreement"), dated as of _______ __, ____, among the undersigned
pledgor (the "Pledgor"), Christiania Bank og Kreditkasse ASA, New York Branch,
not in its individual capacity but solely as collateral agent (the "Pledgee"),
and __________, as the issuer of the Uncertificated Securities, Limited
Liability Company Interests and/or Partnership Interests (each as defined below)
(the "Issuer").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Pledgor, certain of its affiliates and the
Pledgee have entered into a Pledge Agreement, dated as of ___, 2001 (as amended,
amended and restated, modified or supplemented from time to time, the "Pledge
Agreement"), under which, among other things, in order to secure the payment of
the Obligations (as defined in the Pledge Agreement), the Pledgor will pledge to
the Pledgee for the benefit of the Secured Creditors (as defined in the Pledge
Agreement), and grant a security interest in favor of the Pledgee for the
benefit of the Secured Creditors in, all of the right, title and interest of the
Pledgor in and to any and all (1) "uncertificated securities" (as defined in
Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of
New York) ("Uncertificated Securities"), (2) Partnership Interests (as defined
in the Pledge Agreement) and (3) Limited Liability Company Interests (as defined
in the Pledge Agreement), in each case issued from time to time by the Issuer,
whether now existing or hereafter from time to time acquired by the Pledgor
(with all of such Uncertificated Securities, Partnership Interests and Limited
Liability Company Interests being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, the Pledgor desires the Issuer to enter into this
Agreement in order to protect the security interest of the Pledgee under the
Pledge Agreement in the Issuer Pledged Interests, to vest in the Pledgee control
of the Issuer Pledge Interests and to provide for the rights of the parties
under this Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the
Issuer, and the Issuer hereby agrees, to comply with any and all instructions
and orders originated by the Pledgee (and its successors and assigns) regarding
any and all of the Issuer Pledged Interests without the further consent by the
registered owner (including the Pledgor), and, after receiving a notice from the
Pledgee stating that an "Event of Default" has occurred and is continuing, not
to comply with
Page 2
any instructions or orders regarding any or all of the Issuer Pledged Interests
originated by any person or entity other than the Pledgee (and its successors
and assigns) or a court of competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any
security interest, lien or other encumbrance or claim affecting the Issuer
Pledged Interests (other than the security interest of the Pledgee) has been
received by it, and (ii) the security interest of the Pledgee in the Issuer
Pledged Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the
pledge by the Pledgor of, and the granting by the Pledgor of a security interest
in, the Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Hans Chr. Kjelsrud
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
5. Until the Pledgee shall have delivered written notice to
the Issuer that all of the Obligations have been paid in full and this Agreement
is terminated, the Issuer will, upon receiving notice from the Pledgee stating
that an "Event of Default" has occurred and is continuing, send any and all
redemptions, distributions, interest or other payments in respect of the Issuer
Pledged Interests from the Issuer for the account of the Pledgor only by wire
transfers to the following address:
----------------------
----------------------
----------------------
----------------------
ABA No.: ________________________
Account in the Name of: _________
Account No.: ___________________
6. Except as expressly provided otherwise in Sections 4 and 5,
all notices, shall be sent or delivered by mail, telegraph, telex, telecopy,
cable or overnight courier service and all such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, or cabled or sent by
overnight courier, be effective when deposited in the mails, delivered to the
telegraph company, cable company or courier, as the case may be, or sent by
telex or telecopier, except that notices and communications to the Pledgee, the
Pledgor or the Issuer shall not be effective until
Page 3
received by the Pledgee, the Pledgor or the Issuer, as the case may be. All
notices and other communications shall be in writing and addressed as follows:
(a) if to any Pledgor, at:
----------------------
----------------------
----------------------
----------------------
Attention: __________
Telephone No.:
Telecopier No.:
with copies to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Attention: __________
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) if to the Pledgee, at:
00 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Hans Chr. Kjelsrud
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(c) if to the Issuer, at:
----------------------
----------------------
----------------------
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
7. This Agreement shall be binding upon the successors and
assigns of the Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding
Page 4
on all parties hereto. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in the manner
whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.
8. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
principles of conflict of laws.
* * *
Page 5
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
[____________________],
as Pledgor
By
---------------------------------
Name:
Title:
CHRISTIANIA BANK OG,
KREDITKASSE ASA, NEW YORK BRANCH,
not in its individual capacity but
solely as Pledgee
By
---------------------------------
Name:
Title:
By
---------------------------------
Name:
Title:
[___________________],
the Issuer
By
---------------------------------
Name:
Title:
