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Exhibit 10.24
ISSUER STOCK PLEDGE AGREEMENT
THIS ISSUER STOCK PLEDGE AGREEMENT dated as of July 30, 1999 (the
"Issuer Pledge Agreement") among THE CRONOS GROUP, a Luxembourg societe anonyme
(the "Pledgor"), as owner of all of the outstanding capital stock in Cronos
Finance (Bermuda) Limited, and MEESPIERSON N.V., as agent (the "Agent") on
behalf of itself and First Union National Bank ("FUNB"; collectively with
MeesPierson N.V., the "Noteholders").
RECITALS
WHEREAS, the Pledgor is the sole shareholder of Cronos Finance (Bermuda)
Limited, a company organized and existing under the laws of the Islands of
Bermuda (the "Issuer");
WHEREAS, Issuer, Agent and Lenders have entered into a certain Loan
Agreement, dated as of July 30, 1999 (the "Loan Agreement"), pursuant to which
the Issuer issued notes (the "Notes") to the Noteholders;
WHEREAS, in consideration of the agreement of the Noteholders to
purchase the Notes, Guarantor will pursuant to the Guaranty, dated as of July
30, 1999 (the "Guaranty"), guarantee the obligations of the Issuer, under the
Notes, the Loan Agreement and the other Transaction Documents and the
performance of the obligations of the Sellers, the Administrator and the Manager
under the Transaction Documents, up to a maximum amount of $10,000,000;
WHEREAS, to secure the obligations of the Pledgor under the Guaranty
(the "Pledgor Obligations"), the Pledgor has agreed to pledge all of its
interest as a shareholder of the Issuer to the Agent and all such interest
represented by the stock certificate listed on attached Schedule A (the "Pledged
Shares");
NOW, THEREFORE, in consideration of the foregoing recitals and of the
agreements contained herein and other good consideration, the receipt and
adequacy is hereby acknowledged, and intending to be legally bound, the parties
hereto do hereby agree as follows:
Section 1. Definitions. Capitalized terms used but not otherwise defined
in this Pledge Agreement shall have the meanings specified therefor in the Loan
Agreement or, if such terms are not defined therein, as defined in the Guaranty.
Section 2. Pledge of Stock and Grant of Security Interest. As security
for the full and complete performance of all of the Pledgor Obligations, the
Pledgor hereby delivers, pledges and assigns to the Agent on behalf of the
Noteholders, and grants in favor of the Agent on behalf of the
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Noteholders, a first priority security interest in all of the Pledgor's right,
title and interest in and to (i) the Pledged Shares, (ii) all of the Pledgor's
rights and privileges with respect to the Pledged Shares and (iii) all proceeds,
income and profits thereof and all property received in exchange thereof or in
substitution therefor (all of the foregoing collectively, the "SPC Share
Collateral").
Section 3. Stock Dividends, Options, or Other Adjustments. Until the
date on which (i) the Outstanding Obligations are indefeasibly paid in full and
(ii) the Guaranteed Obligations are indefeasibly paid in full, if required (the
"Expiration Date"), the Pledgor, shall deliver, as SPC Share Collateral, to the
Agent, any and all additional shares of stock or any other property of any kind
distributable on or by reason of the SPC Share Collateral, whether in the form
of or by way of stock dividends, warrants, total or partial liquidation,
conversion, prepayments, redemptions or otherwise, with the sole exception of
cash or other property dividends. If any additional shares of capital stock,
instruments, or other property, a security interest in which can only be
perfected by possession by the Agent, which are distributable on or by reason of
the SPC Share Collateral pledged hereunder, shall come into the possession or
control of the Pledgor, the Pledgor shall forthwith transfer and deliver such
property to the Agent, as SPC Share Collateral hereunder.
Section 4. Delivery of Share Certificates; Stock Powers. Simultaneously
with the delivery of this Pledge Agreement, the Pledgor shall deliver to the
Agent all instruments and stock certificates representing the SPC Share
Collateral, together with stock powers duly executed in blank by the Pledgor.
The Pledgor shall promptly deliver to the Agent, or cause the Issuer or any
other entity issuing the SPC Share Collateral to deliver directly to the Agent,
share certificates or other instruments representing any SPC Share Collateral
acquired or received after the date of this Pledge Agreement with a stock or
bond power duly executed by the Pledgor. If at any time either the Agent or the
Noteholders notifies the Pledgor that it requires additional stock powers
endorsed in blank, the Pledgor shall promptly execute in blank and deliver the
requested power to the requesting party.
Section 5. Power of Attorney. The Pledgor hereby irrevocably appoints
the Agent with full power of substitution and revocation, as the Pledgor's true
and lawful attorney-in-fact, with the power, after the occurrence of an "Event
of Default" under and as defined in the Loan Agreement, to the fullest extent
permitted by law, to affix to any certificates and documents representing the
SPC Share Collateral the stock or bond powers delivered with respect thereto,
and to transfer or cause the transfer of the SPC Share Collateral, or any part
thereof, on the books of the Issuer or other entity issuing such SPC Share
Collateral, to the name of the Agent or the Noteholders or any nominee, and
thereafter to exercise with respect to such SPC Share Collateral, all the
rights, powers and remedies of an owner. The power of attorney granted pursuant
to this Pledge Agreement and all authority hereby conferred are granted and
conferred solely to protect the Noteholders' respective interests in the SPC
Share Collateral and shall not impose any duty upon the Agent or the Noteholders
to exercise any power. This power of attorney shall be irrevocable as one
coupled with an interest until the Expiration Date.
Section 6. Inducing Representations of the Pledgor. The Pledgor
represents and warrants to the Noteholders that:
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(a) The Pledged Shares are validly issued, fully paid for and
nonassessable.
(b) The Pledged Shares represent all of the issued and outstanding
capital stock of the Issuer.
(c) The Pledgor is the sole legal and beneficial owner of, and has good
and marketable title to, the Pledged Shares, free and clear of all pledges,
liens, security interests and other encumbrances other than the security
interest created by this Pledge Agreement, and the Pledgor has the unqualified
right and authority to execute and perform this Pledge Agreement.
(d) No options, warrants or other agreements with respect to the SPC
Share Collateral are outstanding.
(e) Any consent, approval or authorization of or designation or filing
with any authority on the part of the Pledgor which is required in connection
with the pledge and security interest granted under this Pledge Agreement has
been obtained or effected.
(f) Neither the execution and delivery of this Pledge Agreement by the
Pledgor, the consummation of the transaction contemplated hereby nor the
satisfaction of the terms and conditions of this Pledge Agreement:
(i) conflicts with or results in any breach or violation of any
provision of the articles of incorporation or bylaws of the Pledgor or
any law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award currently in effect having applicability to the
Pledgor or any of its properties, including regulations issued by an
administrative agency or other Governmental Authority having supervisory
powers over the Pledgor;
(ii) conflicts with, constitutes a default (or an event which
with the giving of notice or the passage of time, or both, would
constitute a default) by the Pledgor under, or a breach of or
contravenes any provision of, the Loan Agreement and any Transaction
Documents, any loan agreement, mortgage, indenture or other agreement or
instrument to which the Pledgor or any of its Subsidiaries is a party or
by which it or any of their properties is or may be bound or affected;
or
(iii) results in or requires the creation of any Lien upon or in
respect of any of the Pledgor's assets except the Lien created by this
Pledge Agreement.
(g) Upon the Pledgor's delivery of the Pledged Shares to the Agent, the
Agent, on behalf of the Noteholders, will have a valid, perfected first priority
Lien on the SPC Share Collateral, enforceable as such against all creditors of
the Pledgor and against all Persons purporting to purchase any of the SPC Share
Collateral from the Pledgor.
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Section 7. Obligations of the Pledgor. The Pledgor further represents,
warrants and covenants to the Noteholders that:
(a) The Pledgor will not sell, transfer or convey any interest in, or
suffer or permit any Lien or encumbrance to be created upon or with respect to,
any of the SPC Share Collateral (other than as created under this Pledge
Agreement) during the term of this Pledge Agreement.
(b) The Pledgor will, at its own expense, at any time and from time to
time at the reasonable request of the Agent or the Noteholders, do, make,
procure, execute and deliver all acts, things, writings, assurances and other
documents as may be proposed by the Agent or the Noteholders to preserve,
establish, demonstrate or enforce the Agent's rights, interests and remedies as
created by, provided in, or emanating from this Pledge Agreement.
(c) The Pledgor will not take any action which would cause the Issuer to
issue any other capital stock, without the prior written consent of the
Noteholders. Any such issuance shall be subject to this Pledge Agreement.
(d) The Pledgor will not consent to any amendment to the articles of
incorporation of the Issuer without the prior written consent of the
Noteholders.
Section 8. Dividends. The Pledgor agrees that it shall not cause the
Issuer to declare or make (i) payment of any dividend or other distribution on
any shares of its capital stock, or (ii) any payment on account of the purchase,
redemption, retirement or acquisition of any option, warrant or other right to
acquire shares of its capital stock, unless (in each case) at the time of such
declaration or payment (and after giving effect thereto) no amount payable by
the Issuer or Pledgor under any Transaction Document is then due and owing but
unpaid.
Section 9. Voting Proxy. The Pledgor hereby grants to the Agent on
behalf of the Noteholders an irrevocable proxy to vote the Pledged Shares with
respect to the matters relating to insolvency which proxy shall continue until
the Expiration Date. The Pledgor represents and warrants that it has directed
the Issuer, to reflect the Agent's right to vote the Pledged Shares, on behalf
of the Noteholders, on the Issuer's books. Upon the request of the Agent or the
Noteholders, the Pledgor shall deliver to the Agent such further evidence of
such irrevocable proxy or such further irrevocable proxy to vote the Pledged
Shares as the Agent or the Noteholders may reasonably request. The Agent shall
exercise all such rights to vote the Pledged Shares granted hereunder in
accordance with the written directions given by the Noteholders or in the
Agent's discretion on behalf of the Noteholders.
Section 10. Rights of the Agent and the Noteholders. At any time and
without notice, the Agent or the Noteholders may, upon providing the Agent with
the full amount necessary to carry out such direction, direct the Agent to
discharge any taxes, liens, security interests or other encumbrances levied or
placed on the SPC Share Collateral, pay for the maintenance and preservation of
the SPC Share Collateral, or pay for insurance on the SPC Share Collateral; the
amount of such payments, plus any and all fees, costs and expenses of the Agent
and the Noteholders (including
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reasonable attorneys' fees and disbursements) in connection therewith, shall, at
the option of the Agent or the Noteholders, as appropriate, be reimbursed by the
Pledgor on demand, with interest thereon from the date paid at the overdue rate.
Section 11. Remedies Upon Event of Default under the Loan Agreement.
(a) Upon the occurrence of an "Event of Default" under and as defined in
the Loan Agreement, Agent may, without notice to the Pledgor:
(i) cause the SPC Share Collateral to be transferred to the
Agent's name or the Noteholders' names or in the name of nominees of
either and thereafter exercise as to such SPC Share Collateral all of
the rights, powers and remedies of an owner;
(ii) collect by legal proceedings or otherwise all dividends,
interest, principal payments, capital distributions and other sums now
or hereafter payable on account of the SPC Share Collateral, and hold
all such sums as part of the SPC Share Collateral, or apply such sums to
the payment of the Pledgor Obligations in such manner and order as Agent
may decide, in their sole discretion; or
(iii) enter into any extension, subordination, reorganization,
deposit, merger, or consolidation agreement, or any other agreement
relating to or affecting the SPC Share Collateral, and in connection
therewith deposit or surrender control of the SPC Share Collateral
thereunder, and accept other property in exchange therefor and hold and
apply such property or money so received in accordance with the
provisions hereof.
(b) In addition to all the rights and remedies of a secured party under
the Uniform Commercial Code, the Agent shall have the right, and without demand
of performance or other demand, advertisement or notice of any kind, except as
specified below, to or upon the Pledgor or any other person (all and each of
which demands, advertisements and/or notices are hereby expressly waived to the
extent permitted by law), to proceed forthwith, to collect, receive, appropriate
and realize upon the SPC Share Collateral, or any part thereof and to proceed
forthwith to sell, assign, give an option or options to purchase, contract to
sell, or otherwise dispose of and deliver the SPC Share Collateral or any part
thereof in one or more parcels in accordance with applicable securities laws and
in a manner designed to ensure that such sale will not result in a distribution
of the Pledged Shares in violation of Section 5 of the Securities Act of 1933,
as amended (the "Securities Act") or any other applicable law and on such terms
(including, without limitation, a requirement that any purchaser of all or any
part of the SPC Share Collateral shall be required to purchase any securities
constituting the SPC Share Collateral solely for investment and without any
intention to make a distribution thereof) as the Agent, in its sole and absolute
discretion, deems appropriate without any liability for any loss due to a
decrease in the market value of the SPC Share Collateral during the period held.
If any notification of intended disposition of the SPC Share Collateral is
required by law, such notification shall be deemed reasonable and properly given
if mailed to the Pledgor, postage prepaid, at least five (5) days before any
such disposition at the address indicated in Section 21 below.
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Any disposition of the SPC Share Collateral or any part thereof may be for cash
or on credit or for future delivery without assumption of any credit risk, with
the right of the Agent on behalf of the Noteholders to purchase all or any part
of the SPC Share Collateral so sold at any such sale or sales, public or
private, free of any equity or right of redemption in the Pledgor, which right
of equity is, to the extent permitted by applicable law, hereby expressly waived
or released by the Pledgor.
(c) The Agent, in its sole and absolute discretion, may elect to obtain
the advice of any independent nationally known investment banking firm, which is
a member firm of the New York Stock Exchange, with respect to the method and
manner of sale or other disposition of any of the SPC Share Collateral, the best
price reasonably obtainable therefor, the consideration of cash and/or credit
terms, or any other details concerning such sale or disposition; costs and
expenses of obtaining such advice shall be for the account of the Noteholders.
The Agent, in its sole and absolute discretion, may elect to sell, the SPC Share
Collateral on any credit terms which it deems reasonable; the out-of-pocket
costs and expenses of such sale shall be for the account of the Noteholders.
(d) The Pledgor recognizes that it may not be feasible to effect a
public sale of all or a part of the SPC Share Collateral by reason of certain
prohibitions contained in the Securities Act, and that it may be necessary to
sell privately to a restricted group of purchasers who will be obliged to agree,
among other things, to acquire the SPC Share Collateral for their own account,
for investment and not with a view for the distribution or resale thereof. The
Pledgor agrees that private sales may be at prices and other terms less
favorable to the seller than if the SPC Share Collateral were sold at public
sale, and that neither the Agent nor the Noteholders have any obligation to
delay the sale of any SPC Share Collateral for the period of time necessary to
permit the registration of the SPC Share Collateral for public sale under the
Securities Act. The Pledgor agrees that a private sale or sales made under the
foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner.
(e) If any consent, approval or authorization of any state, municipal or
other governmental department, agency or authority shall be necessary to
effectuate any sale or other disposition of the SPC Share Collateral, or any
partial disposition of the SPC Share Collateral, the Pledgor will execute all
such applications and other instruments as may be required in connection with
securing any such consent, approval or authorization, and will otherwise use its
reasonable best efforts to secure the same.
(f) Upon any sale or other disposition, the Agent shall have the right
to deliver, assign and transfer to the purchaser thereof the SPC Share
Collateral so sold or disposed of. Each purchaser at any such sale or other
disposition (including the Noteholders) shall hold the SPC Share Collateral free
from any claim or right of whatever kind, including any equity or right of
redemption of the Pledgor. The Pledgor specifically waives, to the extent
permitted by applicable law, all rights of redemption, stay or appraisal which
it may have under any rule of law or statute now existing or hereafter adopted.
(g) Neither the Agent nor the Noteholders shall be obligated to make any
sale or other disposition of the SPC Share Collateral, unless the terms thereof
shall be satisfactory to the
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Noteholders. The Agent may, without notice or publication, adjourn any private
or public sale, and, upon five (5) days prior notice to the Pledgor, hold such
sale at any time or place to which the same may be so adjourned. In case of any
sale of all or any part of the SPC Share Collateral on credit or future
delivery, the SPC Share Collateral so sold may be retained by the Agent until
the selling price is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser to take up and pay
for the SPC Share Collateral or any portion thereof so sold and, in case of any
such failure, such SPC Share Collateral may again be sold as herein provided.
(h) All of the rights and remedies granted to the Agent and the
Noteholders, including but not limited to the foregoing, shall be cumulative and
not exclusive and shall be enforceable alternatively, successively or
concurrently as the Agent may deem expedient.
Section 12. Limitation on Liability.
(a) Neither the Agent nor the Noteholders, nor any of their respective
directors, officers or employees, shall be liable to the Pledgor or to the
Issuer for any action taken or omitted to be taken by it or them hereunder, or
in connection herewith, except that the Agent and the Noteholders shall each be
liable for its own gross negligence, bad faith or willful misconduct.
(b) The Agent shall incur no liability to the Noteholders except for the
Agent's negligence or willful misconduct in carrying out its duties hereunder.
(c) The Agent shall be protected and shall incur no liability to any
party in relying upon the accuracy, acting in reliance upon the contents, and
assuming the genuineness of any notice, demand, certificate, signature,
instrument or other document the Agent reasonably believes to be genuine and to
have been duly executed by the appropriate signatory, and (absent actual
knowledge to the contrary) the Agent shall not be required to make any
independent investigation with respect thereto. The Agent shall at all times be
free independently to establish to its reasonable satisfaction, but shall have
no duty to independently verify, the existence or nonexistence of facts that are
a condition to the exercise or enforcement of any right or remedy hereunder.
(d) The Agent may consult with qualified counsel, financial advisors or
accountants and shall not be liable for any action taken or omitted to be taken
by it hereunder in good faith and in accordance with the written advice of such
counsel, financial advisors or accountants.
(e) The Agent shall not be under any obligation to exercise any of the
rights, powers or duties vested in it by this Pledge Agreement unless it shall
have received reasonable security or indemnity satisfactory to the Agent against
the costs, expenses and liabilities which it might incur (the unsecured
indemnity of a Rated Institutional Noteholder being deemed sufficient for such
purpose).
Section 13. Performance of Duties. The Agent shall have no duties or
responsibilities except those expressly set forth in this Pledge Agreement and
the Transaction
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Documents or as directed by the Noteholders in accordance with this Pledge
Agreement or the Transaction Documents.
Section 14. Appointment of and Powers of Agent. The provisions of
Article IX of the Loan Agreement are hereby incorporated by reference.
Section 15. Termination. This Pledge Agreement shall continue in full
force and effect until the Expiration Date. Subject to any sale or other
disposition by the Agent or the Noteholders of the SPC Share Collateral or any
part thereof pursuant to and in accordance with this Pledge Agreement, the SPC
Share Collateral shall be returned to the Pledgor on the Expiration Date.
Section 16. Compensation and Reimbursement. The Pledgor agrees for the
benefit of the Agent and the Noteholders and as part of the Pledgor Obligations
to reimburse the Agent and the Noteholders upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Agent in accordance
with any provision of, or carrying out its duties and obligations under, this
Pledge Agreement (including the reasonable compensation and fees and the
expenses and disbursements of its agents, any independent certified public
accountants and independent counsel), except any expense, disbursement or
advances as may be attributable to negligence, bad faith or willful misconduct
on the part of the Agent.
Section 17. Foreclosure Expenses of the Agent and the Noteholders. All
expenses (including reasonable fees and disbursements of counsel) incurred by
the Agent or the Noteholders in connection with any actual or attempted sale,
exchange of, or any enforcement, collection, compromise or settlement
respecting, this Pledge Agreement or the SPC Share Collateral, or any other
action taken by the Agent hereunder whether directly or as attorney-in-fact
pursuant to a power of attorney or other authorization herein conferred, for the
purpose of satisfaction of the Pledgor Obligations shall be deemed an Obligation
for all purposes of this Pledge Agreement and the Agent (with the consent of the
Noteholders) and the Noteholders may apply the proceeds of the SPC Share
Collateral to payment of or reimbursement of itself or themselves for such
liability.
Section 18. Notices. Any notice or other communication given hereunder
shall be in writing and shall be sent by registered mail, postage prepaid, or
personally delivered or telecopied to the recipient as follows:
(a) To the Agent:
MeesPierson N.V.
Coolsingle 93/P.O. Xxx 000
0000 Xx Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxx Xxxxxxxxx
Telecopy No.: 31 10 401 6343
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(b) To The Noteholders:
MeesPierson N.V.
Coolsingle 93/P.O. Xxx 000
0000 Xx Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attention: Xxxx Xxxxxxxxx
Telecopy No.: 31 10 401 6343
- and-
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
(c) To the Pledgor:
The Cronos Group
00 Xxxxx Xxxxxxx
X-0000 Xxxxxxxxxx
Attention: Chief Financial Officer
Telecopy No: (352)653-147
With a copy to Cronos Containers Ltd., Orchard Lea., Xxxxxxxxx
Lane, Winkfield, Xxxxxxx, Xxxxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx
(d) To the Issuer:
Cronos Finance (Bermuda) Limited
Xxxxxxxxx Xxxxx, Xxxxxx Xxxxxx
Xxxxxxxx XX 00 Xxxxxxx
Xxxxxxxxx: Secretary
Telecopy No: 000 000 0000
Section 19. General Provisions.
(a) None of Agent, the Noteholders or their respective successors and
assigns shall have any obligation in respect of the SPC Share Collateral,
except, in the case of the Agent to use reasonable care in holding the SPC Share
Collateral and to hold and dispose of the same in accordance with the terms of
this Pledge Agreement.
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(b) The failure of the Agent or the Noteholders to exercise, or delay in
exercising, any right, power or remedy hereunder, shall not operate as a waiver
thereof, nor shall any single or partial exercise by the Agent or the
Noteholders of any right, power or remedy hereunder preclude any other or future
exercise thereof, or the exercise of any other right, power or remedy. The
remedies herein provided are cumulative and are not exclusive of any remedies
provided by law or any other agreement.
(c) The representations, covenants and agreements of the Pledgor herein
contained shall survive the date hereof.
(d) Neither this Pledge Agreement nor the provisions hereof can be
changed, waived or terminated orally. This Pledge Agreement may be amended only
with the prior written consent of the Noteholders, the Pledgor and the Agent.
This Pledge Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, legal representatives and
assigns. If any provision of this Pledge Agreement shall be invalid or
unenforceable in any respect or in any jurisdiction, the remaining provisions
shall remain in full force and effect and shall be enforceable to the maximum
extent permitted by law.
(e) This Pledge Agreement may be executed in counterparts, each of which
shall constitute an original but all of which, when taken together, shall
constitute one instrument.
(f) EACH OF THE PARTIES HERETO WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH THIS PLEDGE
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER. EACH
OF THE PARTIES HERETO (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(II) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS PLEDGE AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY, BY AMONG OTHER
THINGS, THIS WAIVER.
(g) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED,
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) THE PLEDGOR IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ANY COURT IN THE
STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK, AND ANY APPELLATE
COURT FROM ANY THEREOF, IN ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND
RELATED TO OR IN CONNECTION WITH THIS PLEDGE AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS OR THE
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TRANSACTIONS CONTEMPLATED HEREUNDER OR THEREUNDER OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH SUIT OR ACTION OR
PROCEEDING MAY BE HEARD OR DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE
EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR
IN ANY OTHER MANNER PROVIDED BY LAW. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
EACH OF THE PARTIES HEREBY WAIVES AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS
A DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION
OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS PLEDGE AGREEMENT OR ANY OF THE
OTHER TRANSACTION DOCUMENTS OR THE SUBJECT MATTER HEREOF OR THEREOF MAY NOT BE
LITIGATED IN OR BY SUCH COURTS. THE PLEDGOR IRREVOCABLY APPOINTS AND DESIGNATES
CT CORPORATION SYSTEM, WHOSE ADDRESS IS 0000 XXXXXXXX, XXX XXXX, XXX XXXX, AS
ITS TRUE AND LAWFUL ATTORNEY AND DULY AUTHORIZED AGENT FOR ACCEPTANCE OF SERVICE
OF LEGAL PROCESS. THE PLEDGOR AGREES THAT SERVICE OF SUCH PROCESS UPON SUCH
PERSON SHALL CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS UPON IT. NOTHING
CONTAINED IN THIS PLEDGE AGREEMENT SHALL LIMIT OR AFFECT THE RIGHTS OF ANY PARTY
HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO START LEGAL
PROCEEDINGS RELATED TO ANY OF THE TRANSACTION DOCUMENTS AGAINST THE PLEDGOR OR
ITS RESPECTIVE PROPERTY IN THE COURTS OF ANY JURISDICTION.
(i) The Agent, by the execution hereof, acknowledges receipt of the
Pledged Shares on behalf of the Noteholders.
Section 20. Waiver of Jury Trial. Pledgor hereby irrevocably waives its
rights to a jury trial with respect to any action, claim or other proceeding
arising out of any dispute in connection with this Issuer Pledge Agreement, any
rights or obligations hereunder or thereunder or the performance of such rights
and obligations.
Section 21. Waiver of Immunity. To the extent that any party hereto or
any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under
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or arising out of or in connection with this Issuer Pledge Agreement, the other
Transaction Documents or the subject matter hereof or thereof, subject, in each
case, to the provisions of the Transaction Documents and mandatory requirements
of applicable law.
Section 22. Judgment Currency. This is an international financing
transaction in accordance with which the specification of Dollars is of the
essence, and Dollars shall be the currency of account in the case of all
obligations under the Transaction Documents. The payment obligations of any
Person under the Transaction Documents shall not be discharged by an amount paid
in a currency, or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, to the extent that the
amount so paid on prompt conversion to Dollars and transfer to the specified
place of payment under normal banking procedures does not yield the amount of
Dollars, in such place, due under the governing Transaction Documents. In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer does not result in payment of such amount of Dollars in
the specified place of payment, the obligee of such payment shall have a
separate cause of action against the party making the same for the additional
amount necessary to yield the amount due and owing under such Transaction
Documents. If, for the purpose of obtaining a judgment in any court with respect
to any obligation of a party under any of the Transaction Documents or any of
the agreements contemplated thereby, it shall be necessary to convert to any
other currency any amount in Dollars due thereunder and a change shall occur
between the rate of exchange applied in making such conversion and the rate of
exchange prevailing on the date of payment of such judgment, the respective
judgment debtor agrees to pay such additional amounts (if any) as may be
necessary to insure that the amount paid on the date of payment is the amount in
such other currency which, when converted into Dollars and transferred to New
York, New York, in accordance with normal banking procedures will result in the
amount then due under the respective Transaction Document in Dollars. Any amount
due from the respective judgment debtor shall be due as a separate debt and
shall not be affected by or merged into any judgment being obtained for any
other sum due under or in respect of any Transaction Document. In no event,
however, shall the respective judgment debtor be required to pay a larger amount
in such other currency, at the rate of exchange in effect on the date of payment
than the amount of Dollars stated to be due under the respective Transaction
Document, so that in any event the obligations of the respective judgment debtor
under the Transaction Document will be effectively maintained as Dollar
obligations.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Pledge Agreement on the date first above written.
THE CRONOS GROUP
By: /s/ XXXXXX XXXXX
--------------------------------
Name: XXXXXX XXXXX
------------------------------
Title: CEO
-----------------------------
MEESPIERSON N.V., AS AGENT FOR
NOTEHOLDERS
By: /s/ J.G.H.M. HANEGRAAF
--------------------------------
Name: J.G.H.M. HANEGRAAF
------------------------------
Title: Senior Account Manager
-----------------------------
Acknowledged and Agreed:
FIRST UNION NATIONAL BANK
By: /s/ XXXXXXX XXXXXXX
---------------------------------
Name: XXXXXXX XXXXXXX
-------------------------------
Title: VP
------------------------------
MEESPIERSON N.V.
By: /s/ J.G.H.M. HANEGRAAF
---------------------------------
Name: J.G.H.M. HANEGRAAF
-------------------------------
Title: Senior Account Manager
------------------------------
ISSUER STOCK PLEDGE AGREEMENT
14
SCHEDULE A TO ISSUER STOCK PLEDGE AGREEMENT
PLEDGED SHARES
Certificate No. 1, 12,000 Shares of the ordinary shares of Cronos Finance
(Bermuda) Limited.
14
