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EXHIBIT 10.11
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of October 29, 1999, among GETTY
IMAGES, INC., a Delaware corporation (the "Parent"), GETTY COMMUNICATIONS
LIMITED, a company incorporated in England ("Getty Communications"), GETTY
IMAGES LIMITED, a company incorporated in England ("Getty Limited"), XXXX XXXXX
IMAGES/AMERICA, INC., an Illinois corporation ("TSI/America"), and EYEWIRE
PARTNERS COMPANY, a Nova Scotia unlimited liability company ("EyeWire"), (each
of Parent, Getty Communications, Getty Limited, TSI/America and EyeWire being
herein called a "Pledgor" and collectively the "Pledgors") and HSBC INVESTMENT
BANK PLC, as security agent and trustee for itself and each of the Lenders (as
defined below) (in such capacity, together with its successors in such capacity,
the "Security Agent").
We refer to that certain Credit Agreement dated October 25,
1999, among Parent, as Original Borrower, certain parties (including without
limitation each Pledgor other than EyeWire) as guarantors, HSBC Investment Bank
plc as Arranger, Facility Agent and Security Agent, HSBC Bank plc as Overdraft
Bank and the Banks (such Credit Agreement, as the same may be amended, novated
or supplemented from time to time, being herein called the "Credit Agreement").
For purposes of this Agreement, the following definitions
shall apply (capitalized terms used in this Agreement but not defined herein
shall have the meanings given to such terms in the Credit Agreement):
(1) The terms "Beneficiary" and "Beneficiaries" shall mean
individually or collectively, as the context may indicate, the
Security Agent and the Lenders.
(2) The term "Lender" means each of the Facility Agent, the
Security Agent, the Arranger, the Overdraft Bank and the Banks
party to or having an interest under the Finance Documents
from time to time, including without limitation their
respective successors and assigns (together, the "Lenders").
(3) The term "Secured Liabilities" means (subject as otherwise
expressly stated herein) all present and future obligations
and liabilities (whether actual or contingent, as principal or
guarantor or other surety, and whether owed jointly or
severally or in any other capacity whatsoever) of each Obligor
to the Lenders (or any of them) under each or any of the
Finance Documents, in each case together with all costs,
charges and expenses incurred by any Lender in connection with
the protection, preservation or enforcement of its respective
rights under the Finance Documents or any other document
evidencing or securing any such liabilities. When used with
respect to any Pledgor (for example, references to a
particular Pledgor's Secured Liabilities, such term means all
obligations and liabilities of such Pledgor described in the
preceding sentence.
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(4) The term "Issuer" shall mean each corporation, partnership,
limited liability company or other issuer, person or entity
whose shares, ownership interests, notes, instruments or other
securities are from time to time included in, or required
under the Credit Agreement to be included in, the Collateral
(as herein defined).
(5) The term "US Pledgor" means a Pledgor which is incorporated in
the United States of America.
(6) The term "Guaranteed Liabilities" means, with respect to each
Grantor, the obligations and liabilities for which such
Grantor is liable in its capacity as a Guarantor under the
Credit Agreement ("Guaranteed Liabilities").
The principles of construction set forth in Clause 1.2 of the Credit Agreement
shall also apply with respect to this Agreement. When the context requires,
terms and provisions relating to the Collateral or any part thereof, when used
in relation to a Pledgor, shall refer to that Pledgor's Collateral or the
relevant part thereof. For the avoidance of doubt, the parties agree that this
Agreement is a "Security Document" as such term is defined in the Credit
Agreement.
The Credit Agreement provides for certain loans and other
credit facilities to be made available to the Borrowers subject to certain
conditions, one of those conditions being that the Pledgors shall have entered
into this Agreement. Each Pledgor is an Obligor under the Credit Agreement and
is a direct or indirect beneficiary of one or more of the loans and other credit
facilities to be provided by the Credit Agreement.
Accordingly, the Pledgors and the Security Agent, for itself
and for the benefit of each of the Beneficiaries, hereby agree as follows:
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Section 2. Pledge and Security Interest. For the benefit of the
Security Agent and the other Beneficiaries, each Pledgor hereby transfers,
hypothecates, pledges, sets over and delivers unto the Security Agent, and
grants to the Security Agent a security interest in, all right, title and
interest such Pledgor now has or hereafter acquires in (a) the shares of capital
stock and other ownership interests of the Pledged Companies set forth on
Schedule I and all shares of capital stock, partnership interests, membership
interests, other ownership interests and other securities and instruments of the
Pledged Companies (including without limitation options, warrants and
subscription rights with respect to any such ownership interests, and
instruments evidencing indebtedness of the Pledged Companies) now owned or
obtained in the future by such Pledgor and the certificates representing or
evidencing all such shares or other interests or securities (the "Pledged
Stock"), (b) all other property which may be delivered to and held by the
Security Agent pursuant to the terms hereof, (c) all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for or
upon the conversion of the securities, instruments, other ownership interests
and other items referred to in clause (a) or clause (b) above, (d) except as
provided in Section 5 below, all rights and privileges of such Pledgor with
respect to the securities and other property referred to in clauses (a), (b) and
(c) above, and (e) all proceeds of any of the foregoing (the items referred to
in clauses (a) through (e) being collectively called the "Collateral"). Upon
delivery to the Security Agent, (A) any share certificates, notes or other
securities or instruments now or hereafter included in the Collateral (the
"Pledged Securities") shall be duly endorsed to the Security Agent or
accompanied by stock powers duly executed in blank or other instruments of
transfer satisfactory to the Security Agent and by such other instruments and
documents as the Security Agent may reasonably request, and (B) all other
property comprising part of the Collateral shall be accompanied by proper
instruments of assignment duly executed by such Pledgor and such other
instruments or documents as the Security Agent may reasonably request
(including, without limitation, Uniform Commercial Code Financing Statements).
Each delivery of Pledged Securities shall be accompanied by a schedule
describing the securities theretofore and then being pledged hereunder, which
schedule shall be attached hereto as Schedule I and made a part hereof. Each
schedule so delivered, after approval by the Security Agent, shall supersede any
prior schedules so delivered. In addition, all such Pledged Stock shall be
accompanied by irrevocable written proxies satisfactory under applicable
corporate law of the jurisdiction of incorporation of the Issuer of such Pledged
Stock. The Pledgors agree promptly to deliver or cause to be delivered to the
Security Agent any and all Pledged Securities, and any and all certificates or
other instruments or documents representing the Collateral, including without
limitation all such items (whether now owned or hereafter acquired) which are
required to be pledged to the Security Agent at any time hereafter pursuant to
the Credit Agreement.
Section 3. Secured Liabilities. The pledges and security interests
granted hereunder secure the payment, discharge and performance of all the
Secured Liabilities. All of the Collateral secures all of the Secured
Liabilities. In the case of each US Pledgor, the amount of the Guaranteed
Liabilities of such US Pledgor secured hereby is limited as provided in Clause
16.9 of the Credit Agreement.
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Section 4. Representations, Warranties and Covenants. The Pledgors
hereby represent, warrant and covenant to and with the Security Agent and each
Beneficiary that:
(1) Each Pledgor has acquired the Pledged Stock pledged by it
hereunder for value and without notice of any adverse claim to
the Pledged Stock; the Pledged Stock includes all the
outstanding capital stock of the Issuer which is the issuer of
such Pledged Stock; and all the shares of the Pledged Stock
have been duly authorized and validly issued and are fully
paid and nonassessable.
(2) Except for the security interest granted hereunder, each
Pledgor (i) is and will at all times continue to be the direct
owner, beneficially and of record, of the Pledged Securities
pledged by it hereunder, (ii) holds and will so hold the same
free and clear of all Encumbrances and of all other rights or
options in favor of, or claims of, any other person, (iii)
will make no assignment, pledge, hypothecation or transfer of,
or create any security interest in, the Collateral, (iv) will
cause all securities included within the Collateral to be
certificated securities, and (v) will cause any and all
certificates, instruments or other documents representing or
evidencing Collateral to be forthwith deposited with the
Security Agent and pledged or assigned hereunder.
(3) By virtue of the execution and delivery by the Pledgors of
this Agreement, when the Pledged Securities are delivered to
the Security Agent in accordance with this Agreement, the
Security Agent will obtain a valid, legal and perfected first
priority lien upon and security interest in such Pledged
Securities as security for the repayment of the Secured
Liabilities, free and clear of all Encumbrances or other
adverse claims (other than the security interest created
hereby).
(4) The pledge and security interest effected hereby is effective
to vest in the Security Agent the rights in the Collateral
contemplated herein.
(5) The Pledgors will cause each Issuer not to issue any stock or
other equity securities unless such securities are issued in
accordance with the terms of the Finance Documents and are
concurrently pledged and delivered to the Security Agent
hereunder.
(6) This Agreement is the legal, valid and binding obligation of
each Pledgor and is enforceable against such Pledgor in
accordance with its terms.
(7) If any Pledgor shall become entitled to receive or shall
receive any stock certificate (including without limitation
any certificate representing a stock dividend or a
distribution in connection with any reclassification, increase
or reduction of any capital or any certificate issued in
connection with any reorganization), option or rights in
respect of capital stock of any Issuer,
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whether in addition to, in substitution of, as a conversion
of, or in exchange for, any shares of the Pledged Stock, or
otherwise in respect thereof, such Pledgor shall accept the
same as the agent of the Security Agent and the other
Beneficiaries, hold the same in trust for the Security Agent
and the Beneficiaries and deliver the same forthwith to the
Security Agent in the exact form received, duly indorsed by
such Pledgor to the Security Agent and accompanied by such
stock powers and proxies as provided in Section 1 above, to be
held by the Security Agent, subject to the terms hereof, as
additional Collateral for the Secured Liabilities. Any sums
paid upon or in respect of the Pledged Securities upon the
liquidation or dissolution of any Issuer shall be paid over to
the Security Agent to be held by it hereunder as additional
collateral security for the Secured Liabilities, and in case
any distribution of capital shall be made on or in respect of
the Pledged Securities or any property shall be distributed
upon or with respect to the Pledged Securities pursuant to the
recapitalization or reclassification of the capital of any
Issuer or pursuant to the reorganization thereof, the property
so distributed shall, unless otherwise subject to a perfected
security interest in favor of the Security Agent, be delivered
to the Security Agent to be held by it hereunder as additional
collateral security for the Secured Liabilities. If any sums
of money or property so paid or distributed in respect of the
Pledged Securities shall be received by such Pledgor, such
Pledgor shall, until such money or property is paid or
delivered to the Security Agent, hold such money or property
in trust for the Beneficiaries, segregated from other funds of
such Pledgor, as additional collateral security for the
Secured Liabilities.
(8) Each Pledgor will not (i) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Pledged Securities or proceeds thereof (except pursuant to a
transaction, if any, expressly permitted by the Credit
Agreement), (ii) create, incur or permit to exist any
Encumbrance or option in favor of, or any claim of any person
with respect to, any of the Pledged Securities or proceeds
thereof, or any interest therein, except for the security
interests created by this Agreement or (iii) enter into any
agreement or undertaking restricting the right of such Pledgor
or the Security Agent to sell, assign or transfer any of the
Pledged Securities or proceeds thereof.
(9) In the case of each Pledgor which is an Issuer, such Issuer
agrees that (i) it will be bound by the terms of this
Agreement relating to the Pledged Securities issued by it and
will comply with such terms insofar as such terms are
applicable to it, (ii) it will notify the Security Agent
promptly in writing of the occurrence of any of the events
described in Section 3(g) above with respect to the Pledged
Securities issued by it, and (iii) the terms of Section 5
hereof shall apply to it, mutatis mutandis, with respect to
all actions that may be required of it pursuant to Section 5
with respect to the Pledged Securities issued by it.
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Section 5. Registration in Nominee Name; Denominations. Upon either (a)
the occurrence and during the continuance of an Event of Default or (b) the
reasonable good faith judgment of the Security Agent that the registration of
the Pledged Securities is necessary or desirable to maintain or perfect the
security interests created by this Agreement in the Pledged Securities or to
protect or exercise the rights or remedies of the Security Agent hereunder, the
Security Agent, on behalf of the Beneficiaries, shall have the right (in its
sole and absolute discretion) to register the Pledged Securities in its own name
or the name of its nominee. Each Pledgor will promptly give to the Security
Agent copies of any notices or other communications received by it with respect
to Pledged Securities registered in the name of such Pledgor. The Security Agent
shall at all times have the right to exchange the certificates representing
Pledged Securities for certificates of smaller or larger denominations for any
purposes consistent with this Agreement.
Section 6. Irrevocable Proxy; Voting Rights; Dividends and Interest;
etc.
(1) For so long as this Agreement and the pledge and security
interest created hereby remain in effect, and whether or not
the Collateral or any of the Pledged Securities has been
transferred into the name of the Security Agent or its
nominee, each Pledgor hereby grants to the Security Agent a
present, irrevocable proxy, coupled with an interest, and
hereby constitutes and appoints the Security Agent as
Pledgor's proxy with full power, in the same manner, to the
same extent and with the same effect as if the Pledgor were to
do the same, to exercise all voting, consenting, corporate and
other rights accruing to Pledgor as owner of the Collateral or
any part thereof, or arising out of or otherwise pertaining to
the Collateral, and whether at any meeting of shareholders of
any Issuer or in the absence of any such meeting or otherwise,
and any and all rights of conversion, exchange and
subscription and any other rights, privileges or options
pertaining to such Collateral as if it were the absolute owner
thereof (including, without limitation, the right to exchange
at its discretion any and all of the Pledged Securities upon
the merger, consolidation, reorganization, recapitalization or
other fundamental change in the corporate structure of any
Issuer, or upon the exercise by any Pledgor or the Security
Agent of any right, privilege or option pertaining to such
Pledged Securities, and in connection therewith, the right to
deposit and deliver any and all of the Pledged Securities with
any committee, depositary, transfer agent, registrar or other
designated agency upon such terms and conditions as the
Security Agent may determine), all without liability except to
account for property actually received by it, but the Security
Agent shall have no duty to any Pledgor to exercise any such
right, privilege or option and shall not be responsible for
any failure to do so or delay in so doing. As further
assurance of the proxy granted hereby, the Pledgor shall from
time to time execute and deliver to the Security Agent, all
such additional written proxies, powers of attorney, and other
instruments as the Security Agent shall request for the
purpose of enabling the Security Agent to exercise the voting
and other rights which it is entitled to exercise
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hereunder at any time. Each Pledgor hereby revokes any proxy
or proxies heretofore given by Pledgor to any person or
persons whatsoever and agrees not to give any other proxies in
derogation hereof until this Agreement is not longer in full
force and effect as hereinafter provided. NOTWITHSTANDING THE
PRECEDING PRESENT GRANT OF AN IRREVOCABLE PROXY, THE SECURITY
AGENT AGREES NOT TO EXERCISE SUCH PROXY (AND TO PERMIT EACH
PLEDGOR TO CONTINUE TO EXERCISE VOTING AND OTHER RIGHTS
COVERED BY SUCH PROXY AND PERTAINING TO THE PLEDGED SECURITIES
PLEDGED BY SUCH PLEDGOR ON AND SUBJECT TO THE CONDITIONS SET
FORTH IN THIS PARAGRAPH 5(a)(i)) UNTIL THE OCCURRENCE AND
CONTINUANCE OF AN EVENT OF DEFAULT. Except as provided in
subparagraphs (b) and (c) of this Section 5:
(i) Each Pledgor shall be entitled to
exercise any and all voting rights and other consensual rights
accruing to it as the owner of Pledged Securities for any
purpose consistent with the terms of this Pledge Agreement and
the other Finance Documents so long as such exercise of rights
could not reasonably be expected in the reasonable judgment of
the Security Agent to materially adversely affect the rights
and remedies of the Security Agent or any of the Beneficiaries
under this Pledge Agreement or any other Finance Document or
the ability of the Security Agent or any of the Beneficiaries
to exercise the same; provided, however, that the Pledgor
shall give the Security Agent at least 5 days written notice
of the manner in which it intends to exercise such right.
(ii) The Security Agent shall execute and
deliver to each Pledgor, or cause to be executed and delivered
to such Pledgor, all such proxies, powers of attorney, and
other instruments as such Pledgor may reasonably request for
the purpose of enabling such Pledgor to exercise the voting
rights which it is entitled to exercise pursuant to
subparagraph (i) above.
(iii) Each Pledgor shall be entitled to
receive and retain any and all cash dividends paid on the
Pledged Securities to the extent and only to the extent that
such cash dividends are permitted by, and otherwise paid in
accordance with, the terms and conditions of this Agreement,
the Finance Documents and applicable laws. All other payments,
dividends and distributions made on or in respect of Pledged
Securities, whether paid or payable in cash, securities or
other property, and whether resulting from a subdivision,
combination or reclassification of the outstanding capital
stock of the Issuer of any Pledged Securities or received in
exchange for or in redemption of Pledged Securities or any
part thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such Issuer
may be a party or otherwise, shall be and become part of the
Collateral and, if received by the Pledgors, shall not be
commingled by the
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Pledgors with any of their other funds or property but shall
be held separate and apart therefrom in trust for the benefit
of the Security Agent and shall be delivered to the Security
Agent in the same form as so received (with any necessary
endorsement).
(2) After the occurrence and during the continuance of an Event of
Default, all rights of the Pledgors to dividends which the
Pledgors are authorized to receive pursuant to paragraph
(a)(iii) of this Section 5 shall cease, and all such rights
shall thereupon become vested in the Security Agent, who shall
have the sole and exclusive right and authority to receive and
retain such dividend payments. All dividends which are
received by the Pledgors contrary to the provisions of this
Section 5(b) shall be received in trust for the benefit of the
Security Agent, shall be segregated from other property or
funds of the Pledgors and shall be immediately delivered to
the Security Agent in the same form as so received (with any
necessary endorsement). Any and all money and other property
paid over to or received by the Security Agent pursuant to the
provisions of this paragraph (b) shall be deposited by the
Security Agent in an account to be established by the Security
Agent upon receipt of such money or other property and such
money or other property and interest thereon shall be applied
in accordance with the provisions of Section 7 hereof.
(3) UPON THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF
DEFAULT, AND WHETHER OR NOT THE COLLATERAL SHALL HAVE BEEN
REGISTERED IN THE NAME OF THE SECURITY AGENT OR A NOMINEE OR
SHALL REMAIN REGISTERED IN THE NAME OF PLEDGOR, ALL RIGHTS OF
ANY PLEDGOR TO EXERCISE THE VOTING RIGHTS WHICH IT IS ENTITLED
TO EXERCISE PURSUANT TO PARAGRAPH (a)(i) OF THIS SECTION 5
SHALL CEASE, AND THE SECURITY AGENT MAY THEREUPON FULLY
EXERCISE, TO THE EXCLUSION OF ANY PLEDGOR, THE PROXY GRANTED
TO IT IN PARAGRAPH 5(a).
(4) Each Pledgor hereby authorizes and instructs each Issuer of
any Pledged Securities pledged by such Pledgor hereunder to
(i) comply with any instruction received by it from the
Security Agent in writing that (x) states that an Event of
Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other
or further instructions from such Pledgor, and each Pledgor
agrees that each Issuer shall be fully protected in so
complying, and (ii) unless otherwise expressly permitted
hereby, pay any dividends or other payments with respect to
the Pledged Securities directly to the Security Agent.
Section 7. Remedies upon Default. After the occurrence and during the
continuance of an Event of Default, whether or not all of the Secured
Liabilities shall have become due and payable, in addition to its rights under
the Finance Documents:
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(1) The Security Agent shall have all of the rights and remedies
with respect to the Collateral of a secured party under the
Uniform Commercial Code as in effect in the State of New York
(the "NYUCC") (whether or not the NYUCC is in effect in
the jurisdiction where the rights and remedies are asserted
and whether or not the NYUCC applies to the affected
Collateral) and such additional rights and remedies to which a
secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be
asserted, including without limitation the right, to the
maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the
Collateral as if the Security Agent were the sole and absolute
owner thereof (and the Pledgors agree to take all such action
as may be appropriate to give effect to such right).
(2) The Security Agent in its discretion may, in its name or in
the name of the Pledgors or otherwise, demand, xxx for,
collect or receive any money or property at any time payable
or receivable on account of or in exchange for any of the
Collateral, but shall be under no obligation to do so.
(3) The Security Agent may sell, lease, assign, grant options with
respect to or otherwise dispose of all or part of the
Collateral, at such place or places as the Security Agent
deems best, and for cash or for credit or for future delivery
(without thereby assuming any credit risk), at public or
private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or
place thereof (except such notice as is required above or by
applicable statute and cannot be waived), and the Security
Agent or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at
any public sale (or, to the extent permitted by law, at any
private sale) and thereafter hold the same absolutely, free
from any claim or right of whatsoever kind, including any
right or equity of redemption (statutory or otherwise) of the
Pledgors, any such demand, notice and right or equity being
hereby expressly waived and released. Each Pledgor agrees
that, to the extent notice of sale shall be required by law,
at least ten days' notice to such Pledgor of the time and
place of any public sale or the time after which such private
sale is to be made shall constitute reasonable notification;
however the Security Agent shall not be obligated to make a
sale of the Collateral regardless of notice of sale having
been given. The Security Agent may, without notice or
publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may be made
at any time or place to which the sale may be so adjourned.
(4) The Pledgors recognize that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended from time
to time (the "Securities Act"), and applicable state
securities laws, the Security Agent may be
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compelled, with respect to any sale of all or any part of the
Collateral, to limit purchasers to those who will agree, among
other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or
resale thereof. The Pledgors acknowledge that any such private
sales may be at prices and on terms less favorable to the
Security Agent than those obtainable through a public sale
without such restrictions, and, notwithstanding such
circumstances, agree that any such private sale shall be
deemed to have been made in a commercially reasonable manner
and that the Security Agent shall have no obligation to engage
in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit
registration of such Collateral for public sale.
The Pledgors will bear all costs and expenses of carrying out
their obligations hereunder with respect to the foregoing. The Pledgors
acknowledge that there is no adequate remedy at law for failure by them to
comply with the foregoing provisions and that such failure would not be
adequately compensable in damages, and therefore agree that their agreements
with respect to the foregoing may be specifically enforced.
Section 8. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6 hereof, as well as any Collateral consisting of
cash, shall be applied by the Security Agent first to the payment of the costs
and expenses of any such sale, including reasonable fees and disbursements of
the Security Agent's agents and counsel, and of any judicial proceeding wherein
the same may be made, and of all expenses, liabilities and advances (to the
extent such advances are reasonably made for the protection of the Collateral or
the enforcement of the Security Agent's security interest in the Collateral)
made or incurred by the Security Agent, second, to meet amounts due and payable
under the Finance Documents as and when the same become payable, in each case,
together with interest thereon (as well after as before judgment and payable on
demand) at the rate determined in accordance with Clause 8.3 of the Credit
Agreement from the date the same become due and payable until the date the same
are unconditionally and irrevocably paid and discharged in full (provided that
like interest payable under any of the Finance Documents should not be double
counted) and third, to whomsoever may be lawfully entitled to receive any
surplus. Each Pledgor waives and agrees not to assert any rights or privileges
which it may acquire under Section 9-112 of the NYUCC. Each Pledgor shall remain
liable for any deficiency if the proceeds of sale or other disposition of the
Collateral are insufficient to pay its Secured Liabilities and the fees and
disbursements of any attorneys employed by the Security Agent or any Beneficiary
to collect such deficiency.
Section 9. Security Agent Appointed Attorney-in-Fact; Certain Other
Provisions Regarding Security Agent.
(1) Except as otherwise provided herein, the Pledgors hereby
appoint the Security Agent the attorney-in-fact of the
Pledgors for the purposes of carrying out the provisions of
this Agreement or taking any action or executing any
instrument which the Security Agent may reasonably deem
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necessary or advisable to accomplish the purposes hereof,
which appointment is irrevocable and coupled with an interest.
Without limiting the generality of the foregoing, the Security
Agent shall have the right, after the occurrence and during
the continuance of an Event of Default, with full power of
substitution either in the Security Agent's name or in the
name of the Pledgors, to ask for, demand, xxx for, collect,
receive and give acquittance for any and all monies due or to
become due under or by virtue of any Collateral, to endorse
checks, drafts, orders and other instruments for the payment
of money payable to the Pledgors constituting Collateral or
any part thereof or on account thereof and to give full
discharge for the same, to settle, compromise, prosecute or
defend any action, claim or proceeding with respect thereto,
and to sell, assign, endorse, pledge, transfer and make any
agreement respecting, or otherwise deal with, the same;
provided, however, that nothing herein contained shall be
construed as requiring or obligating the Security Agent to
make any commitment or to make any inquiry as to the nature or
sufficiency of any payment received by the Security Agent, or
to present or file any claim or notice, or to take any action
with respect to the Collateral or any part thereof or the
monies due or to become due in respect thereof or any property
covered thereby, and no action taken by the Security Agent or
omitted to be taken with respect to the Collateral or any part
thereof shall give rise to any defense, counterclaim or offset
in favor of any Pledgor or to any claim or action against the
Security Agent.
(2) If any Pledgor fails to perform any agreement contained
herein, the Security Agent may (but shall not be required to)
itself perform, or cause performance of, such agreement and
the expenses of the Security Agent incurred in connection
therewith shall be payable by the Pledgor under Section 12.
(3) Each Pledgor hereby ratifies all that said attorneys shall
lawfully do or cause to be done by virtue hereof. All powers,
authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this
Agreement is terminated and the security interests created
hereby are released.
(4) The Security Agent's sole duty with respect to the custody,
safekeeping and physical preservation of the Collateral in its
possession, under Section 9-207 of the NYUCC or otherwise,
shall be to deal with it in the same manner as the Security
Agent deals with similar property for its own account. Neither
the Security Agent, any Beneficiary nor any of their
respective officers, directors, employees or agents shall be
liable for failure to demand, collect or realize upon any of
the Collateral or for any delay in doing so or shall be under
any obligation to sell or otherwise dispose of any Collateral
upon the request of any Pledgor or any other person or to take
any other action whatsoever with regard to the Collateral or
any part thereof. The powers conferred on the Security Agent
and the other Beneficiaries hereunder are solely to protect
the Security Agent's and the Beneficiaries' interests in the
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Collateral and shall not impose any duty upon the Security
Agent or any Beneficiary to exercise any such powers. The
Security Agent and the Beneficiaries shall be accountable only
for amounts that they actually receive as a result of the
exercise of such powers, and neither they nor any of their
officers, directors, employees or agents shall be responsible
to any Pledgor for any act or failure to act hereunder, except
for their own gross negligence or willful misconduct.
(5) Pursuant to Section 9-402 of the NYUCC and any other
applicable law, each Pledgor authorizes the Security Agent to
file or record financing statements and other filing or
recording documents or instruments with respect to the
Collateral without the signature of such Pledgor in such form
and in such offices as the Security Agent reasonably
determines appropriate to perfect the security interests
granted hereunder. A photographic or other reproduction of
this Agreement shall be sufficient as a financing statement or
other filing or recording document or instrument for filing or
recording in any jurisdiction.
(6) Each Pledgor acknowledges that the rights and responsibilities
of the Security Agent under this Agreement with respect to any
action taken by the Security Agent or the exercise or
non-exercise by the Security Agent of any option, voting
right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as
between the Security Agent and the Beneficiaries, be governed
by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them,
but, as between the Security Agent and the Pledgors, the
Security Agent shall be conclusively presumed to be acting as
agent for the Beneficiaries with full and valid authority so
to act or refrain from acting, and no Pledgor shall be under
any obligation, or entitlement, to make any inquiry respecting
such authority.
Section 10. No Waiver. No failure on the part of the Security Agent to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy by the Security Agent preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law. The Security Agent shall not be deemed to have waived any
rights hereunder or under any other agreement or instrument unless such waiver
shall be in writing and signed by such parties.
Section 11. Security Interest Absolute. The obligations of each Pledgor
under this Pledge Agreement are independent of the obligations under any of the
other Finance Documents, and a separate action or actions may be brought and
prosecuted against such Pledgor to enforce this Pledge Agreement. All rights of
the Security Agent hereunder, the grant of a security interest in the Collateral
and all obligations of the Pledgors hereunder shall be absolute and
unconditional irrespective of (a) any lack of
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validity or enforceability of any Finance Document, any agreement with respect
to any of the Secured Liabilities or any other agreement or instrument relating
to any of the foregoing, (b) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured Liabilities, or any other
amendment or waiver of or any consent to any departure from any Finance Document
or any other agreement or instrument, (c) any exchange, release, amendment or
waiver of, or consent to or departure from, any guaranty for all or any of the
Secured Liabilities, (d) any change, restructuring or termination of the
corporate structure or existence of any Pledgor or Issuer or (e) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Pledgors or any of them in respect of the Secured Liabilities
or in respect of this Agreement.
Section 12. Further Assurances. The Pledgors agree to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Security Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement, with respect to the Collateral or any part thereof or in order better
to assure and confirm unto the Security Agent its rights and remedies hereunder.
Section 13. Security Agent's Fees and Expenses; Indemnification.
(1) The Pledgors agree to pay upon demand to the Security Agent
the amount of any and all out-of-pocket expenses, including
the reasonable fees and expenses of its counsel (including
without limitation the allocated fees and expenses of in-house
counsel) and of any experts or agents, which the Security
Agent may reasonably incur in connection with (i) the
administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other
realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Security Agent
hereunder, or (iv) the failure by the Pledgors to perform or
observe any of the provisions hereof.
(2) Without limiting the foregoing, each Pledgor agrees to pay,
and to save the Security Agent and the Beneficiaries harmless
from, and to indemnify them against, any and all liabilities
with respect to, or resulting from any delay in paying, any
and all stamp, excise, sales or other taxes which may be
payable or determined to be payable with respect to any of the
Collateral or in connection with any of the transactions
contemplated by this Agreement. Any such amounts payable as
provided hereunder shall be additional Secured Liabilities
secured by this Agreement and the other Finance Documents to
which the Pledgors are party. Each Pledgor further agrees to
pay, and to save the Security Agent and the Beneficiaries
harmless from, and to indemnify them against, any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind
or nature whatsoever ("Indemnifies Liabilities") with respect
to the execution, delivery, enforcement, performance and
administration of this Agreement, or arising out of or
relating to the Security
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Agent's or any Beneficiary's relationship with any Pledgor
hereunder or under any other Finance Document (including
without limitation for all Environmental Claims); provided
that the Pledgors shall not have any obligation to any
Beneficiary hereunder with respect to any Indemnified
Liabilities to the extent such Indemnified Liabilities arise
from the gross negligence or willful misconduct of such
Beneficiary.
(3) The agreements in this Section 12 shall survive repayment of
the Secured Liabilities and all other amounts payable under
the Credit Agreement and the other Finance Documents.
Section 14. Binding Agreement; Assignments. This Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, except that the Pledgors shall not be permitted to assign this
Agreement or any interest herein or in the Collateral or any part thereof, or
otherwise pledge, encumber or grant any option with respect to the Collateral or
any part thereof, or any cash or property held by the Security Agent as
Collateral under this Agreement, except as contemplated by this Agreement.
Section 15. Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New York.
Section 16. Consent to Jurisdiction and Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN NEW
YORK CITY, NEW YORK, U.S.A. AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE
PLEDGORS ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR RESPECTIVE
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT. TO THE EXTENT PERMITTED BY LAW, EACH
PLEDGOR HEREBY AGREES THAT SERVICE UPON IT BY CERTIFIED MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE AND SERVICE OF PROCESS. NOTHING HEREIN SHALL AFFECT THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT
OF THE SECURITY AGENT TO BRING PROCEEDINGS AGAINST ANY PLEDGOR IN THE COURTS OF
ANY OTHER JURISDICTION.
Section 17. Waiver of Jury Trial. THE PLEDGORS AND THE SECURITY AGENT
HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY
JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR
ARISING OUT OF THIS AGREEMENT, OR THE VALIDITY, PROTECTION, INTERPRETATION,
COLLECTION OR ENFORCEMENT
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HEREOF; AND THE PLEDGORS HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, THE RIGHT TO INTERPOSE ANY SET OFF OR COUNTERCLAIM OR CROSS-CLAIM IN
CONNECTION WITH ANY SUCH LITIGATION, IRRESPECTIVE OF THE NATURE OF SUCH SETOFF,
COUNTERCLAIM OR CROSS-CLAIM EXCEPT TO THE EXTENT THAT THE FAILURE SO TO ASSERT
ANY SUCH SETOFF, COUNTERCLAIM OR CROSS-CLAIM WOULD PERMANENTLY PRECLUDE THE
PROSECUTION OF OR RECOVERY UPON SAME. Notwithstanding anything contained in this
Agreement to the contrary, no claim may be made by the Pledgors against the
Security Agent or any Beneficiary for any lost profits or any special, indirect
or consequential damages in respect of any breach or wrongful conduct (other
than willful misconduct or actual fraud) in connection with, arising out of or
in any way related to the transactions contemplated hereunder, or any act,
omission or event occurring in connection therewith; and the Pledgors hereby
waive, release and agree not to xxx upon any such claim for any such damages.
THE PLEDGORS AGREE THAT THIS SECTION 16 IS A SPECIFIC AND MATERIAL ASPECT OF
THIS AGREEMENT AND ACKNOWLEDGE THAT THE SECURITY AGENT WOULD NOT EXTEND TO THE
PLEDGORS ANY AMOUNTS UNDER THE FINANCE DOCUMENTS IF THIS SECTION 16 WERE NOT
PART OF THIS AGREEMENT.
Section 18. Notices. All notices or other communications under or in
connection with this Agreement shall be given in writing or by facsimile in
accordance with the provisions of Clause 34 of the Credit Agreement, and any
such notice will be deemed to be given as provided in Clause 34 of the Credit
Agreement. The address, telex number and facsimile number of each party for all
notices under or in connection with this Agreement are: (i) as specified as such
party's address for notices in Schedule 1 or 2, as the case may be, of the
Credit Agreement or in such other document by which such party becomes a party
to this Agreement; or (ii) as otherwise notified by the Pledgors for this
purpose to the Facility Agent (or in the case of the Security Agent as otherwise
notified by the Facility Agent to the Pledgors) by not less than five Business
Days' notice.
Section 19. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, no party hereto shall be required to comply with such provision for so
long as such provision is held to be invalid, illegal or unenforceable and the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal and unenforceable
provisions with valid provisions, the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
Section 20. Section Headings. The section and other headings used
herein are for convenience only and are not to affect the construction of, or to
be taken into consideration in interpreting, this Agreement.
Section 21. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument.
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Section 22. Termination.
(1) At such time as all of the Secured Liabilities (other than any
indemnity and similar obligations which expressly survive
termination of this Agreement or the Credit Agreement and are
not then due and payable) have been paid irrevocably and in
full and all Commitments have terminated and no letters of
credit or engagements (if any) issued pursuant to any Finance
Document shall remain outstanding, this Agreement and all
obligations (other than those expressly stated to survive such
termination) of the Security Agent and each Pledgor shall
terminate, and the Collateral shall be released from the
pledge and security interests created hereby, all without
delivery of any instrument or performance of any act by any
party, and all rights to the Collateral shall revert to the
Pledgors. At the request and sole expense of any Pledgor
following any such termination, the Security Agent shall
deliver to such Pledgor any Collateral then held by the
Security Agent hereunder and shall execute and deliver to such
Pledgor, but without recourse to or warranty by the Security
Agent, such Uniform Commercial Code termination statements and
similar documents prepared by such Pledgor which such Pledgor
shall reasonably request to evidence the release of the
Collateral from the security constituted hereby.
(2) Notwithstanding anything to the contrary contained in this
Agreement, this Agreement shall remain in full force and
effect and continue to be effective should any petition be
filed by or against the Pledgors or any of them for
liquidation or reorganization, should any Pledgor become
insolvent or make an assignment for any benefit of creditors
or should a receiver or trustee be appointed for all or any
significant part of any Pledgor's assets, and shall continue
to be effective or be reinstated, as the case may be, if at
any time payment and performance of the Secured Liabilities,
or any part thereof, is, pursuant to applicable law, rescinded
or reduced in amount, or must otherwise be restored or
returned by any obligee of the Secured Liabilities, whether as
a "voidable preference," "fraudulent conveyance" or otherwise,
all as though such payment, or any part thereof, had not been
made.
Section 23. Joint and Several Obligations; Waiver of Joinder. All
representations, warranties, covenants and undertakings by the Pledgors or any
of them hereunder shall be their joint and several obligations. Each Pledgor
hereby waives any requirement that any other Pledgor, Obligor or person be
joined in or made party to any action to enforce this Agreement or any right or
remedy hereunder.
Section 24. Acknowledgments. Each Pledgor acknowledges that: (a) it has
been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Finance Documents to which it is a party; (b) neither
the Security Agent, any other Agent nor any Beneficiary has any fiduciary
relationship with or duty to any Pledgor arising out of or in connection with
this Agreement of any of the other Finance Documents,
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and the relationship between the Pledgors, on the one hand, and the Security
Agent, each other Agent and the other Beneficiaries, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and (c)
no joint venture is created hereby or by the Finance Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Beneficiaries
or among the Grantors and the Beneficiaries.
Section 25. Additional Pledgors. Each person or entity that is
required to become a party to this Agreement pursuant to Clause 17 of the Credit
Agreement shall become a Pledgor for all purposes of this Agreement upon
execution and delivery by such person or entity of an Assumption Agreement in
the form of Annex 1 hereto.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a deed, or caused this Agreement to be duly executed as a deed, as
of the day and year first above written.
GETTY IMAGES, INC.
By: ________________________________
Name:
Title:
GETTY COMMUNICATIONS LIMITED
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
GETTY IMAGES LIMITED
By: ________________________________
Name:
Title:
By: ________________________________
Name:
Title:
XXXX XXXXX IMAGES/AMERICA, INC.
By: ________________________________
Name:
Title:
EYEWIRE PARTNERS COMPANY
By: ________________________________
Name:
Title:
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HSBC INVESTMENT BANK PLC
By: ________________________________
Name:
Title:
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Annex 1
Form of Assumption Agreement
[Attached]
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