EXHIBIT 10.3
PLEDGE AGREEMENT
BY
MUSKETEER OIL B. V.
IN FAVOR OF
ABN AMRO BANK N.V.,
As Agent
February 20, 1997
TABLE OF CONTENTS
Page
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1. Pledge 1
2. Security for Obligations 2
3. Delivery of Pledged Collateral 3
4. Representations, Warranties and Covenants 3
5. Further Assurances 6
6. Voting Rights; Dividends; Etc 8
7. Agent Appointed Attorney-in-Fact 10
8. Agent May Perform 10
9. No Responsibility for Certain Actions; Indemnity 10
10. Remedies upon Default 11
11. Expenses 14
12. Amendments, Etc 14
13. Address for Notices 14
14. Continuing Security Interest 15
15. Security Interest Absolute 15
16. Use of Copies 16
17. Right of Set-off 16
18. Severability 16
19. Waiver of Jury Trial 17
20. Governing Law; Jurisdiction 17
21. Counterparts 18
22. Waiver of Subrogation 18
23. Subordination 19
23. Incorporation by Reference 19
24. Miscellaneous Terms 19
Schedule I Schedule of Pledged Shares
Schedule II Stock Assignment Separate From Certificate
Schedule III Pledge Agreement SupplementPLEDGE AGREEMENT
PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Agreement"), dated as of
February 20, 1997, is made and entered into by MUSKETEER OIL
B.V., a Netherlands limited liability company (the
"Company"), in favor of ABN AMRO BANK N.V., as agent (in
such capacity, the "Agent") for the financial institutions
(the "Banks") from time to time a party to the Credit
Agreement (defined below).
PRELIMINARY STATEMENTS.
1. Willbros Group, Inc., a Republic of Panama
corporation ("WGI"), and certain of its Subsidiaries (as
defined in the Credit Agreement) (collectively, the
"Borrowers"), the Agent, Credit Lyonnais New York Branch as
Co-Agent, and the Banks are party to a Credit Agreement of
even date herewith (such Credit Agreement, as amended,
restated, supplemented or otherwise modified from time to
time, being hereinafter referred to as the "Credit
Agreement"; unless otherwise defined herein, terms defined
in the Credit Agreement are used herein as therein defined).
2. Pursuant to the Credit Agreement, the Banks have
agreed to make available to the Borrowers a revolving credit
facility and a standby and commercial letter of credit
facility.
3. The Company is an indirect Subsidiary of WGI and an
affiliate of all of the Borrowers, and the Company will
derive substantial benefit from each extension of credit to
the Borrowers by the Banks under the Credit Agreement.
4. The obligation of the Banks to make the Loans and
to issue or participate in the Letters of Credit is
conditioned upon, among other things, the execution and
delivery by the Company of this Agreement.
AGREEMENTS.
In consideration of the premises and in order to induce
the Banks to enter into the Credit Agreement and make the
Loans and issue or participate in the Letters of Credit, and
for other good and valuable consideration, the receipt and
sufficiency of which are acknowledged and confessed by the
parties, the Company agrees with the Agent, for the benefit
of the Agent and the Banks (the Agent and the Banks
collectively, the "Secured Parties"), as follows:
1. PLEDGE In order to secure the prompt and
unconditional payment of the obligations referred to in
Section 2 and the performance of the obligations, covenants,
agreements and undertakings described in this Agreement, the
Company hereby transfers, grants, bargains, sells, conveys,
hypothecates, sets over, delivers and pledges to the Agent,
on behalf of the Secured Parties, and grants to the Agent,
on behalf of the Secured Parties, a security interest in,
all of the Company's remedies, powers, privileges, rights,
titles and interests of every kind and character now owned
or hereafter acquired, created or arising in and to the
following (the "Pledged Collateral"):
(a) the Pledged Shares (as defined below);
(b) all shares of capital stock, general and
limited partnership interests, trust interests, joint
venture interests, ownership rights arising under the law of
any jurisdiction, and any evidence of the foregoing,
together with any property and rights derivative thereof,
acquired, received or owned by the Company of any Person
which, on or after the date of this Agreement, is or
becomes, as a result of any occurrence, a direct Subsidiary
of the Company;
(c) all certificates and similar evidence of
ownership representing the Pledged Shares;
(d) all cash dividends, stock dividends, cash,
instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of
or in exchange for any or all of the Pledged Shares or the
shares or interests acquired, received or owned under
Section 1(b); and
(e) all additions to and substitutions for any of
the foregoing and all products and proceeds of any of the
Pledged Collateral, together with all renewals and
replacements of any of the Pledged Collateral, all accounts,
accounts receivable, instruments, notes, chattel paper,
documents (including all documents of title), books,
records, contract rights and general intangibles arising in
connection with any of the Pledged Collateral.
"Pledged Shares" means all shares described in Schedule I,
as amended from time to time, together with all rights,
contingent or otherwise, of the Company to acquire shares in
the entities or organizations represented by the shares
described in Schedule I, as amended from time to time, or in
any Borrower, all rights to receive cash dividends, stock
dividends, distributions upon redemption or liquidation,
distributions as a result of split-ups, recapitalizations or
rearrangements, stock rights, rights to subscribe, voting
rights, rights to receive securities, options, warrants,
calls, commitments, securities accounts, security
entitlements, and all new securities and other property
which the Company now owns or may hereafter become entitled
to receive on account of the foregoing or with respect to
any such company;
To have and to hold the Pledged Collateral, together
with all right, title,
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interest, powers, privileges and preferences pertaining or
incidental thereto, unto the Agent, its successors and
assigns, on behalf of the Secured Parties, forever; subject,
however, to the terms, covenants and conditions set forth in
this Agreement.
2. SECURITY FOR OBLIGATIONS. The security interests
and other rights granted pursuant to Section 1 secure, and
the Pledged Collateral is security for, the prompt
performance and payment in full in cash when due, whether at
stated maturity, by acceleration or otherwise of the
following (the "Secured Obligations"; provided, however,
that to the extent that in a legal proceeding brought within
the applicable limitations period it is determined by the
final, non-appealable order of a court having jurisdiction
over the issue and the applicable parties that the Company
received less than a reasonably equivalent value in exchange
for the Company's incurrence of its obligations under this
Agreement, then and only then is the Secured Obligations,
for the purposes of this Agreement only, limited in amount
to the Guaranteed Debt that would have applied to the
Company had it been a direct party to the Credit Agreement):
(a) any and all Obligations, whether now existing
or hereafter arising;
(b) any and all sums and the interest which
accrues on them which the Company may owe any Secured Party
pursuant to any Credit Document on account of any Borrower's
failure to keep, observe or perform any covenant under any
Credit Document;
(c) all present and future debts and obligations
under or pursuant to any Credit Document or other document
now or in the future governing, evidencing, guaranteeing or
securing or otherwise relating to the indebtedness incurred
pursuant to the Credit Agreement, and all supplements,
amendments, restatements, renewals, extensions,
rearrangements, increases, expansions or replacements of
them.
The Credit Agreement guarantees, among other things,
the prompt performance and payment in full of the Secured
Obligations. The Secured Obligations include, among other
things, (i) a revolving credit facility under which funds
may be advanced by the Banks, repaid and subsequently
readvanced by the Banks, and (ii) a standby and commercial
letter of credit facility under which Letters of Credit may
from time to time be issued. Notwithstanding that the
balance of the revolving line of credit may at certain times
be zero and that no Letters of Credit may at certain times
be outstanding, the Liens granted hereunder to the Agent
shall remain in full force and effect at all times and with
the same priority until the payment in full in cash of the
Secured Obligations, the termination of the Commitments and
the expiration or termination of all
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outstanding Letters of Credit.
3. DELIVERY OF PLEDGED COLLATERAL. The Pledged
Collateral and all certificates, instruments and property
representing or evidencing the Pledged Collateral shall,
within two Business Days of the Company's actual or
constructive receipt thereof, be delivered to and held by or
on behalf of the Agent pursuant to this Agreement and shall
be in suitable form for transfer of ownership and possession
by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form
and substance satisfactory to the Agent. The Agent shall
have the right, at any time in its discretion and without
notice to the Company, to transfer to or to register in its
name or any of its nominees, any or all of the Pledged
Collateral, subject only to the revocable rights specified
in Section 6(a). In addition, the Agent shall have the
right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for
certificates or instruments of smaller or larger
denominations.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Company represents, warrants and covenants to the Agent and
the other Secured Parties as follows:
(a) The Company (i) is a private limited
liability company (besloten vennootschap) duly organized,
validly existing and in good standing under the laws of The
Netherlands; (ii) is not duly qualified as a foreign
corporation under the laws of any jurisdiction, and there is
no jurisdiction in which qualification or licensing is
required by the nature of its business and where the absence
of such qualification has a reasonable likelihood of having
a Material Adverse Effect; (iii) has all requisite corporate
power and authority and the legal right to own, pledge,
mortgage and operate its properties, and to conduct its
business as now or currently proposed to be conducted; (iv)
is in compliance with its articles of association and
similar organizational documents; (v) is not in default
under any material agreement such that there is a reasonable
likelihood of such default having a Material Adverse Effect;
(vi) is in compliance (except to the extent any
noncompliance has no reasonable likelihood of having a
Material Adverse Effect) with all Legal Requirements; and
(vii) together with the Borrowers, forms part of a group of
companies that are closely related legally and economically,
each deriving benefits from the other, and the execution,
delivery and performance of this Agreement is conducive to
the business interests of the Company and its pursuit of
profits and continuity.
(b) Each Person listed on Schedule I or described
in Section 1(b): (i) is an entity duly organized, validly
existing and in good standing under the laws of the
jurisdiction of its organization; (ii) is duly qualified to
do business and in good standing in every jurisdiction in
which the nature of the business it
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conducts makes such qualification necessary or desirable;
(iii) has all requisite corporate power and authority and
the legal right to own, pledge, mortgage and operate its
properties, and to conduct its business as now or currently
proposed to be conducted; (iv) is in compliance with its
articles of association and similar organizational
documents; and (v) to the Company's best knowledge, is in
compliance (except to the extent any noncompliance has no
reasonable likelihood of having a Material Adverse Effect)
with all Legal Requirements.
(c) The execution, delivery, and performance by
the Company of this Agreement (I) are within the Company's
corporate power; (ii) have been duly authorized by all
necessary corporate action; (iii) do not contravene the
Company's certificate or articles of incorporation or
by-laws or other organizational documents; (iv) do not
result in or require the creation of any Lien upon or with
respect to any of its properties; and (v) do not conflict
with or result in a breach of the terms, conditions or
provisions of, or cause a default under, any agreement,
instrument, franchise, license or concession to which the
Company is a party or by which the Company or any of its
property is bound.
(d) No authorization or approval or other action
by, and no notice to or filing with, any Governmental
Authority is required for the due execution, delivery and
performance by the Company of this Agreement or for the
validity or enforceability thereof.
(e) This Agreement is a legal, valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency or similar laws
relating to creditors' rights generally, as such laws would
apply in the event of bankruptcy, insolvency or other
similar occurrence with respect to the Company.
(f) There is no pending or, to the best knowledge
of the Company, threatened action or proceeding affecting
the Company before or by any Governmental Authority which
has any reasonable likelihood of having a Material Adverse
Effect.
(g) The Company is not (I) a party to any
contractual obligation the performance of which either
unconditionally or upon the happening of an event, will
result in the creation of a Lien on the Company's property
or assets (other than in favor of the Secured Parties); or
(ii) subject to any charter or corporate restriction which
has a reasonable likelihood of having a Material Adverse
Effect.
(h) The representations and warranties made by
the Borrowers in Article V of the Credit Agreement are true
and correct, and all information
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supplied to the Secured Parties, and all statements made to
the Secured Parties by or on behalf of any Borrower or the
Company before, concurrently with or after the Company's
execution of this Agreement with respect to the Pledged
Collateral are and will be true, correct, complete, valid
and genuine in all material respects. No statement
contained in any certificate, schedule, list, financial
statement or other papers furnished to any Secured Party by
or on behalf of any Borrower or the Company contains (or
will contain) any untrue statement of material fact or omits
(or will omit) to state a material fact necessary to make
the statements contained herein or therein not misleading.
(i) The shares described on Schedule I include
all of the authorized, issued and outstanding shares of
capital stock of each of the companies listed thereon and
the rights to acquire shares in such companies. The
companies and other entities listed on Schedule I constitute
all of the Borrowers and all of the Material Subsidiaries in
which the Company has a direct ownership interest. The
Company is the sole legal and equitable owner and holder of
the Pledged Shares, which are free and clear of all Liens,
or rights or interests of any other Person, of every kind
and nature except for the Lien created by this Agreement.
The shares of stock described in the first sentence of this
paragraph are duly authorized, validly issued, fully paid,
non-assessable, and free from any restriction on transfer,
and none of such shares has been issued or transferred in
violation of the securities registration, securities
disclosure or similar laws of any jurisdiction to which such
issuance or transfer may be subject. There are no options,
warrants, financing statements, calls or commitments of any
character relating to the Pledged Shares, nor are there any
rights of first refusal, voting trusts, voting agreements or
similar agreements relating to the Pledged Shares. The
pledge, assignment and delivery of the Pledged Collateral
pursuant to this Agreement will create a valid first
priority lien on and a first priority perfected security
interest in the Pledged Collateral and the proceeds thereof.
Appropriate financing statements will be filed in favor of
the Agent in the office of the County Clerk of Oklahoma
County, Oklahoma, U.S.A. The Company maintains no office or
place of business in the United States of America, in Canada
or in any other part of the world, other than its registered
office in The Netherlands.
(j) When additional Pledged Collateral is
delivered to the Agent in accordance with Section 3, the
Company will be the legal and equitable owner of such
Pledged Collateral free and clear of all Liens, or rights or
interests of any other Person, of every kind and nature
including any state or federal tax liens, except for the
Lien created by this Agreement; each share of stock
comprising such Pledged Collateral will have been duly
authorized and validly issued and will be fully paid and
non-assessable and free from any restriction on transfer;
and the Company will have legal title to such Pledged
Collateral and power to pledge, assign and deliver such
Pledged Collateral in the manner contemplated
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by this Agreement.
(k) The Company agrees that it will (i) cause
each issuer of shares of stock comprising Pledged Collateral
not to issue any stock or other securities in addition to or
in substitution for the shares of stock comprising Pledged
Collateral issued by such issuer, except to the Company,
(ii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all additional
shares of stock or other securities of each issuer of
Pledged Collateral, and (iii) pledge hereunder, immediately
upon its acquisition (directly or indirectly) thereof, any
and all shares of stock covered by Section 1(b).
(l) Without the prior written consent of the
Agent having been first obtained, the Company (i) shall not
sell, assign, transfer, pledge, mortgage, hypothecate,
dispose of or encumber, or grant any option or warrant or
Lien or right with respect to, or permit any Liens to arise
with respect to, the Pledged Collateral, any of its rights
in or to the Pledged Collateral and any portion thereof,
except for the pledge thereof provided for in this
Agreement, and (ii) shall not permit any issuer of shares of
stock comprising Pledged Collateral to terminate its
corporate existence, to be a party to any merger or
consolidation, or to sell, lease or dispose of all or
substantially all of its assets and properties in a single
transaction or series of related transactions, except as
permitted by the Credit Agreement.
(m) The Company has and will defend the title to
the Pledged Collateral and the Liens created by this
Agreement against all claims and demands of any Person at
any time claiming the Pledged Collateral or any interest
therein and will maintain and preserve such Liens until the
termination of this Agreement.
5. FURTHER ASSURANCES.
(a) The Company agrees that, at any time and from
time to time, at the expense of the Company, the Company
will promptly execute and deliver all further instruments
and documents, and take all further action, that may be
necessary or desirable, or that the Agent may reasonably
request, in order to create, maintain, perfect and protect
any security interest, pledge, or hypothecation granted or
purported to be granted by this Agreement, to enable the
Agent to exercise and enforce its rights and remedies under
this Agreement with respect to any Pledged Collateral, and
to assure the transferability by the Agent and its
successors of the Pledged Collateral. The Company shall
notify the Agent in writing, at least two (2) weeks in
advance of the date that it establishes any office or place
of business in the United States, or establishes its chief
executive office in any other part of the world, of its
intent to establish such office.
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(b) Where all or any part of any jurisdiction's
enactment of the 1994 revisions to Article 8 of the Uniform
Commercial Code applies with respect to a portion of the
Pledged Collateral, (i) the Company shall cause the Agent to
have sole "control", as defined therein, of such Pledged
Collateral that comprises investment property, together with
all proceeds thereof, and (ii) at the Agent's request from
time to time, the Company shall instruct (and hereby
instructs) any third party holding such Pledged Collateral
to obey only the instructions and entitlement orders of the
Agent with respect to such Pledged Collateral and any
proceeds thereof. Except as the Agent may otherwise permit
in writing, the Company shall have no right to cause the
withdrawal, application or transfer of any financial assets
or security entitlements with respect to the Pledged
Collateral, and the Company shall not give any instructions
or entitlement orders with respect to them.
(c) Without limiting the foregoing, the Company
further agrees that it will, upon obtaining any additional
shares of any issuer of the Pledged Collateral or shares or
other equity interests in entities described in Section 1(b)
or any other securities constituting Pledged Collateral,
promptly (and in any event within five (5) Business Days)
deliver to the Agent (i) such shares, (ii) a duly executed
but blank stock power in the form of Schedule II for each
certificate representing such additional Pledged Collateral,
and (iii) a duly executed Pledge Agreement Supplement in
substantially the form of Schedule III (a "Pledge Agreement
Supplement") or as may otherwise be reasonably required by
the Agent identifying the additional shares which are
pledged pursuant to Section 1(b). The Company authorizes
the Agent to attach each Pledge Agreement Supplement to this
Agreement and agrees that all shares listed on any Pledge
Agreement Supplement delivered to the Agent shall for all
purposes constitute Pledged Collateral.
(d) The Company will cause to be paid before
delinquency all taxes, charges, liens and assessments at any
time levied or assessed against the Pledged Collateral, or
any part thereof, or against any Secured Party for or on
account of the Pledged Collateral or the interest created by
this Agreement, and will furnish the Agent with receipts
showing payment of such taxes and assessments at least five
days before the applicable default date therefor.
(e) If the validity or priority of this Agreement
or of any rights, titles, security interests or other
interests created or evidenced by this Agreement shall be
attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, the Company
will take all necessary and proper steps for the defense of
such legal proceedings. The Agent is authorized and
empowered to take such additional steps as in its judgment
and discretion may be necessary or proper for the defense of
any such legal proceedings or the protection of the validity
or priority of this Agreement and the rights, titles,
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security interests and other interests created or evidenced
by this Agreement, and the Secured Obligations include all
expenses so incurred of every kind and character.
(f) Regarding any proceedings relating to the
Pledged Collateral, or any portion thereof, the Agent may
participate therein, and the Company shall from time to time
deliver to the Agent all instruments reasonably requested by
it to permit such participation. The Company shall, at its
expense, diligently prosecute any such proceedings and shall
consult with the Agent, its attorneys and experts, and
cooperate with them in the carrying on or defense of any
such proceedings.
6. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have
occurred and be continuing (and, in the case of clause (i)
below, so long as written notice has not been given by the
Agent to the Company):
(i) The Company shall be entitled to
exercise any and all voting and/or other
consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose
consistent with the terms of this Agreement or the
Credit Agreement; provided, however, that the
Company shall not exercise or refrain from
exercising any such right with the primary intent
of causing a Material Adverse Effect.
(ii) The Company shall be entitled to
receive and retain any and all dividends paid in
respect of the Pledged Collateral (other than any
and all
(A) dividends paid or payable
other than in cash in respect of, and
instruments and other property received,
receivable or otherwise distributed in
respect of, or in exchange for, any
Pledged Collateral,
(B) dividends and other
distributions paid or payable in cash in
respect of any Pledged Collateral in
connection with a partial or total
liquidation or dissolution or in
connection with a return of capital,
capital surplus or paid-in-surplus, and
(C) cash paid, payable or
otherwise distributed in redemption of,
or in exchange for, any Pledged
Collateral,
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all of which shall be, and all of which shall be
forthwith delivered to the Agent to hold as,
Pledged Collateral and shall, if received by the
Company, be received in trust for the benefit of
the Agent, be segregated from the other property
or funds of the Company, and be forthwith
delivered to the Agent as Pledged Collateral in
the same form as so received (with any necessary
endorsement)).
(iii) The Agent shall execute and
deliver (or cause to be executed and delivered) to
the Company all such proxies and other instruments
as the Company may reasonably request for the
purpose of enabling the Company to exercise the
voting and other rights which it is entitled to
exercise pursuant to clause (i) above and to
receive the dividends which it is authorized to
receive and retain pursuant to clause (ii) above.
Regardless of the Company's right described above to receive
and retain certain rights and property, such rights and
property nonetheless secure the repayment of the Secured
Obligations and are a part of the Pledged Collateral.
(b) Upon the occurrence and during the
continuation of an Event of Default:
(i) All rights of the Company to
exercise the voting and other consensual rights
which it would otherwise be entitled to exercise
pursuant to Section 6(a)(i) and the obligations of
the Agent under Section 6(a)(iii) shall cease upon
receipt by the Company of written notice of an
Event of Default, and all such rights shall
thereupon become vested in the Agent who shall
thereupon have the sole right to exercise such
voting and other consensual rights;
(ii) All rights of the Company to
receive the dividends which it would otherwise be
authorized to receive and retain pursuant to
Section 6(a)(ii) shall cease upon receipt by the
Company of written notice of an Event of Default,
and all such rights shall thereupon become vested
in the Agent who shall thereupon have the sole
right to receive and hold as Pledged Collateral
such dividends; and
(iii) All dividends which are
received by the Company contrary to the provisions
of clause (ii) of this Section 6(b) shall be
received in trust for the benefit of the Agent,
shall be segregated from other funds of the
Company and shall be forthwith paid over to the
Agent as Pledged Collateral in the same form as so
received (with any necessary endorsement).
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(c) In order to permit the Agent to exercise the
voting and other rights which it may be entitled to exercise
pursuant to Section 6(b)(i), and to receive all dividends
and distributions which it may be entitled to receive under
Section 6(b)(ii), the Company shall, if necessary, upon
written notice from the Agent, from time to time execute and
deliver to the Agent appropriate dividend payment orders and
other instruments as the Agent may reasonably request. To
this end, the Company hereby irrevocably constitutes and
appoints the Agent the proxy and attorney-in-fact of the
Company, with full power of substitution, to vote, and to
act with respect to, any and all Pledged Collateral that is
securities standing in the name of the Company or with
respect to which the Company is entitled to vote and act,
subject to the understanding that such proxy may not be
exercised unless an Event of Default has occurred and is
continuing. The proxy herein granted is coupled with an
interest, is irrevocable, and shall continue until payment
in full in cash of the Secured Obligations, the termination
of the Commitments and the expiration or termination of all
outstanding Letters of Credit.
7. AGENT APPOINTED ATTORNEY-IN-FACT. Company hereby
appoints the Agent the Company's true and lawful attorney-
in-fact, with full authority in the place and stead of the
Company and in the name of the Company or otherwise, from
time to time in the Agent's discretion, subject to Section
6, to take any action and to execute any document or
instrument which the Agent may reasonably deem necessary or
desirable to accomplish the purposes of this Agreement,
including, without limitation, to receive, endorse and
collect all instruments made payable to the Company
representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any
part thereof and to give full discharge for the same. The
Agent's liability, if any, otherwise arising under
applicable law shall be limited to amounts actually received
as a result of the exercise of the powers granted to it
herein. No Agent or Bank, and no officer, director,
employee or agent of the Agent or any Bank, shall be
responsible to the Company for any act or failure to act
hereunder, except that any such Person shall be responsible
for its own gross negligence or willful misconduct.
8. AGENT MAY PERFORM. Agent is authorized to perform,
or cause performance of, any agreement contained herein in
the event that the Company fails to timely perform the same,
and the reasonable expenses of the Agent incurred in
connection therewith shall be payable by the Company. The
Agent is further authorized in its discretion to take any
other action, either on its own behalf or on behalf of the
Company (and as regards actions taken on behalf of the
Company, this authorization is irrevocable and is an agency
coupled with an interest), as the Agent may elect, which the
Agent may deem necessary or appropriate to protect and
preserve the rights, titles and interests of the Agent
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hereunder. The powers conferred on the Agent pursuant to
this Agreement are conferred solely to protect the Secured
Parties' interest in the Pledged Collateral and shall not
impose any duty or obligation on any Secured Party to perform
any of the powers herein conferred. No exercise of any of
the rights provided for in this Agreement constitute a
retention of collateral in satisfaction of indebtedness.
9. NO RESPONSIBILITY FOR CERTAIN ACTIONS; INDEMNITY.
Neither the Agent nor any other Secured Party shall have
responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities,
tenders or other matters relative to any Pledged Collateral,
whether or not the Agent or any other Secured Party has or
is deemed to have knowledge of such matters, (b) taking any
necessary steps to preserve any rights against any Person
with respect to any Pledged Collateral, or (c) supervising,
monitoring or controlling any aspect of the character or
condition of any of the Pledged Collateral or any operations
conducted in connection with it for the benefit of the
Company or any other Person. The Company agrees to
indemnify, defend and hold Secured Parties, their respective
shareholders, directors, officers, agents, advisors and
employees (collectively "Indemnified Parties") harmless from
and against any and all loss, liability, obligation, damage,
penalty, judgment, claim, deficiency, expense, action, suit,
cost and disbursement of any kind or nature whatsoever
(including interest, penalties, attorneys' fees and amounts
paid in settlement), imposed on, incurred by or asserted
against the Indemnified Parties growing out of or resulting
from this Agreement or any transaction or event contemplated
in it (except that such indemnity shall not be paid to any
Indemnified Party to the extent such loss, etc. directly
results from the gross negligence or willful misconduct of
any of the Indemnified Parties).
10. REMEDIES UPON DEFAULT. If any Event of Default
shall have occurred and be continuing:
(a) The Agent may exercise in respect of the
Pledged Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party in default under the
Uniform Commercial Code (the "Code") in effect in the State
of New York at that time, and, subject to applicable
regulatory and legal requirements, the Agent may also,
without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at
public or private sale, at any exchange, broker's board or
at any of the Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as
the Agent may deem commercially reasonable. Upon
consummation of any such sale, the Agent shall have the
right to assign, transfer and deliver to the purchaser or
purchasers thereof the Pledged Collateral so sold. Each
such purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of the
Company, and the Company, for itself and for its successors,
12
receivers, trustees and assigns, and for any and all persons
ever claiming any interest in the Pledged Collateral, to the
extent permitted by law, hereby waives all rights of
extension, redemption, stay, valuation and appraisal, and
any similar right arising under the law of any country,
which the Company now has or may at any time in the future
have under any rule of law or statute now existing or
hereafter enacted. The Company agrees that, to the extent
notice of sale shall be required by law, at least 10 days'
notice to the Company of the time and place of any public
sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Agent shall
not be obligated to make any sale of Pledged Collateral
regardless of notice of sale having been given. The Agent
may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned. The Company hereby
waives any claims against the Agent arising by reason of the
fact that the price at which any Pledged Collateral may have
been sold at such a private sale was less than the price
which might have been obtained at a public sale, even if the
Agent accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. At any
public sale made pursuant to this Section 10, any Secured
Party may bid for or purchase, free from any right of
redemption, stay or appraisal, and any similar right arising
under the law of any country, on the part of the Company
(all said rights being also hereby waived and released), the
Pledged Collateral or any part thereof offered for sale and
may make payment on account thereof by using any claim then
due and payable to it from any Borrower, any Guarantor
and/or the Company as a credit against the purchase price,
and it may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further
accountability to the Company therefor. For purposes
hereof, (i) a written agreement to purchase the Pledged
Collateral or any portion thereof shall be treated as a sale
thereof, (ii) the Agent shall be free to carry out such sale
pursuant to such agreement and (iii) the Company shall not
be entitled to the return of the Pledged Collateral or any
portion thereof subject thereto, notwithstanding the fact
that after the Agent shall have entered into such an
agreement all Events of Default shall have been remedied and
the Secured Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the
Agent may proceed by a suit or suits at law or in equity to
foreclose upon the Pledged Collateral and to sell the
Pledged Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent
jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the
provisions of this Section 10 shall be deemed to conform to
the commercially reasonable standards as provided in the
Code. The Company covenants and agrees that it will execute
and deliver such documents and take such other action as the
Agent deems necessary or advisable in order that any such
sale may be made in compliance with applicable law.
13
(b) The Agent shall have all the rights of a
secured party after default under the Uniform Commercial
Code of New York and in conjunction with, in addition to or
in substitution for those rights and remedies:
(i) it shall not be necessary that the
Pledged Collateral or any part thereof be present at the
location of any sale pursuant to the provisions of this
Section 10;
(ii) the sale by the Agent of less than the
whole of the Pledged Collateral shall not exhaust the rights
of the Agent hereunder, and the Agent is specifically
empowered to make successive sale or sales hereunder until
the whole of the Pledged Collateral shall be sold; and, if
the proceeds of such sale of less than the whole of the
Pledged Collateral shall be less than the aggregate of the
Secured Obligations, this Agreement and the security
interest created hereby shall remain in full force and
effect as to the unsold portion of the Pledged Collateral
just as though no sale had been made;
(iii) in the event any sale hereunder is
not completed or is defective in the opinion of the Agent,
such sale shall not exhaust the rights of the Agent
hereunder and the Agent shall have the right to cause a
subsequent sale or sales to be made hereunder; and
(iv) demand of performance, advertisement and
presence of property at sale are hereby waived and the Agent
is hereby authorized to sell hereunder any financial asset
it may hold as security for the Secured Obligations. All
demands and presentments of any kind or nature are expressly
waived by the Company. The Company hereby waives the right
to require the Agent to pursue any other remedy for the
benefit of the Company and agrees that Secured Party may
proceed against any Person for the amount of the Obligations
owed to the Agent without taking any action against any
other Person and without selling or otherwise proceeding
against or applying any of the Pledged Collateral in the
Agent's possession.
(c) The Company recognizes that, by reason of
certain prohibitions contained in the Securities Act of 1933
and applicable state securities laws, the Agent may be
compelled, with respect to any sale of all or any part of
the Pledged Collateral, to limit purchasers to those who
will agree, among other things, to acquire such securities
for their own account, for investment, and not with a view
to the distribution or resale thereof. The Company
acknowledges and agrees that any such sale may result in
prices and other terms less favorable to the seller than if
such sale were a public sale without such restrictions and
agrees that such circumstances shall not be a factor in
determining whether such sale has been made in a
commercially reasonable manner. The Agent shall be under no
obligation to delay the sale of
14
any of the Pledged Collateral for the period of time
necessary to permit the Company to register such securities
for public sale under the Securities Act of 1933, or under
applicable state securities laws, even if the Company would
agree to do so.
(d) If the Agent determines to exercise its right
to sell any or all of the Pledged Collateral, upon written
request, the Company shall, and shall cause each of its
direct Subsidiaries to, from time to time, furnish to the
Agent all such information as the Agent may reasonably
request in order to determine the number of shares and other
instruments included in the Pledged Collateral which may be
sold by the Agent as exempt transactions under the
Securities Act of 1933 and rules of the Securities and
Exchange Commission thereunder, as the same are from time to
time in effect.
(e) Any cash held by the Agent as Pledged
Collateral and all cash proceeds received by the Agent in
respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral
shall be applied by the Agent (unless otherwise required by
law):
First, to the payment of the costs and
expenses of retaking, holding, preparing for sale,
or selling the Pledged Collateral or any portion
thereof, including all expenses (including,
without limitation, any legal fees and
disbursements and the allocated cost of in-house
counsel), liabilities and advances made or
incurred by the Agent in connection therewith;
Next, to the Agent and the other Secured
Parties in partial payment of the Secured
Obligations; and
Finally, after payment in full in cash of all
Secured Obligations, termination of the
Commitments and expiration or termination of all
outstanding Letters of Credit, to the payment to
the Company, or its successors or assigns, or to
whomsoever may be lawfully entitled to receive the
same or as a court of competent jurisdiction may
direct, of any surplus then remaining from such
cash and cash proceeds.
(f) All remedies herein expressly provided for
are cumulative of any and all other remedies existing at law
or in equity and are cumulative of any and all other
remedies provided for in any other instrument securing the
payment of the Obligations, or any part thereof, or
otherwise benefiting the Secured Parties, and the resort to
any remedy provided for hereunder or under any such other
instrument or provided for by law shall not prevent the
concurrent or subsequent employment of any other appropriate
remedy or remedies.
15
(g) The Secured Parties may resort to any
security given by this Agreement or to any other security
now existing or hereafter given to secure the payment of the
Obligations, in whole or in part, and in such portions and
in such order as may seem best to such Secured Party in its
sole and uncontrolled discretion, and any such action shall
not in anywise be considered as a waiver of any of the
rights, benefits or security interests evidenced by this
Agreement.
11. EXPENSES. The Company will upon demand pay to the
Agent the amount of any and all reasonable costs,
disbursements and expenses of every character, including
without limitation the reasonable fees and expenses of its
counsel (including the reasonable allocated cost of in-house
counsel), subject to the limitations expressed in Section
12.5 of the Credit Agreement, and of any experts, incurred
or expended by the Agent from time to time in connection
with: (a) the preparation, negotiation, documentation,
closing, renewal, revision, modification, renegotiation or
review of this Agreement; (b) the custody or preservation
of, or the sale of, collection from, or other realization
upon, any of the Pledged Collateral, (c) the exercise or
enforcement of any of the rights of the Agent or any other
Secured Party hereunder, or (d) the failure by the Company
to perform or observe any of the provisions hereof.
12. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement nor consent to any departure by
the Company herefrom shall in any event be effective unless
the same shall be in writing and signed by the Agent, and,
in the case of amendment, by the Company, and then such
waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given and to
the extent therein specified. The Agent may waive any
default without waiving any other prior or subsequent
default, and the Agent may remedy any default without
waiving the default remedied. The failure by the Agent to
exercise any right, power or remedy upon any default shall
not be construed as a waiver of such default or as a waiver
of the right to exercise any such right, power or remedy at
a later date. No single or partial exercise by the Agent of
any right, power or remedy hereunder shall exhaust the same
or shall preclude any other or further exercise thereof, and
every such right, power or remedy hereunder may be exercised
at any time and from time to time. No notice to nor demand
on the Company in any case shall of itself entitle the
Company to any other or further notice or demand in similar
or other circumstances. Acceptance by the Agent of any
payment in an amount less than the amount then due on the
Secured Obligations shall be deemed an acceptance on account
only and shall not in any way affect the existence of a
default hereunder. No waiver, release, consent by Agent
pursuant to this Agreement shall affect or impair the rights
of a Secured Party against any third party, except to the
extent specifically agreed to by the Secured Party in such
writing.
16
13. ADDRESS FOR NOTICES. Except as otherwise provided
herein, all notices, requests and other communications
provided for pursuant to this Agreement or any other Credit
Document shall be in writing (including telegraphic, telex,
facsimile transmission or cable communication and confirmed
in original writing) and mailed, telegraphed, telexed,
telefaxed, cabled or delivered, if to the Company to its
address specified on the signature page of this Agreement;
if to any Bank, to its Domestic Lending Office; and if to
the Agent, to its address specified on the signature pages
of the Credit Agreement; or, if to the Company or the Agent,
to such other address as shall be designated by such party
in a written notice to the other party. All such notices
and communications shall be effective (i) if mailed, on the
fifth day after being deposited in the United States Postal
Service, (ii) on the next day after being delivered to a
service for overnight delivery, (iii) if telegraphed,
telecopied, cabled or telexed, on the day delivered to the
telegraph company, transmitted by telecopier, confirmed by
telex answerback or delivered to the cable company,
respectively, or (iv) if delivered, upon delivery, except
that notices pursuant to Article IX of the Credit Agreement
shall not be effective until received by the Agent. Actual
notice shall always be effective.
14. CONTINUING SECURITY INTEREST. This Agreement shall
create a continuing security interest in the Pledged
Collateral and shall (a) remain in full force and effect
until payment in full in cash (after the termination of the
Commitments and the expiration or termination of all
outstanding Letters of Credit) of the Secured Obligations;
(b) continue to be effective if at any time payment and
performance of the Secured Obligations is, pursuant to
applicable law, rescinded or reduced in amount, or must
otherwise be restored by the Agent or any other Secured
Party; (c) be binding upon the Company, its successors and
assigns, and any trustee, receiver, or conservator of the
Company, and any successors in interest of the Company in
and to all or any part of the Pledged Collateral; and (d)
inure, together with the rights and remedies of the Agent
hereunder, to the benefit of the Agent, the other Secured
Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing
clause (d), the Agent and/or any Bank may assign or
otherwise transfer its rights and obligations under the
Credit Agreement to any other Person or entity, and such
other Person or entity shall thereupon become vested with
all the benefits in respect thereof granted to such Bank
herein or otherwise, all as provided in, and to the extent
set forth in, the Credit Agreement. Upon the payment in
full in cash (after the termination of the Commitments and
the expiration or termination of all outstanding Letters of
Credit) of the Secured Obligations, the Company shall be
entitled to the return, upon its request and at its expense,
of such of the Pledged Collateral as shall not have been
sold or otherwise applied pursuant to the terms hereof.
17
15. SECURITY INTEREST ABSOLUTE. All rights and
security interests of the Secured Parties hereunder, and all
obligations of the Company hereunder, shall be absolute and
unconditional irrespective of:
(a) any lack of validity or
enforceability of the Credit Agreement, any other
Credit Document, or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or
place of payment of, or in any other term of, all
or any of the Secured Obligations (including,
without limitation, the possible extension of the
Commitment Termination Date and increase of the
amount of the Commitments all on the terms and
conditions set forth in the Credit Agreement), or
any other amendment, renewal or waiver of or any
consent to any departure from the Credit Agreement
or any other Credit Document;
(c) any exchange, release or
non-perfection of any other collateral, or any
release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the
Obligations;
(d) any indulgence, moratorium or
release granted by any Secured Party, including
but not limited to (i) any renewal, extension or
modification which a Secured Party may grant with
respect to the Obligations, (ii) any surrender,
compromise, release, renewal, extension, exchange
or substitution which a Secured Party may grant in
respect of any item securing the Obligations, or
any part thereof or any interest therein, or (iii)
any release or indulgence granted to any endorser,
guarantor or surety of the Obligations; or
(e) any other circumstance which might
otherwise constitute a defense available to, or a
discharge of, the Company or a third party
pledgor.
16. USE OF COPIES. Any carbon, photographic or other
reproduction of this Agreement or any financing statement
signed by the Company is sufficient as a financing statement
for all purposes, including without limitation, filing in
any state as may be permitted by the provisions of the
Uniform Commercial Code of such state.
17. RIGHT OF SET-OFF.
18
(a) Upon the occurrence and during the
continuation of any Event of Default under the Credit
Agreement, each Bank is hereby authorized at any time and
from time to time, to the fullest extent permitted by law,
to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank
to or for the credit or the account of the Company against
any and all of the Secured Obligations, irrespective of
whether or not such Bank shall have made any demand under
this Agreement and although such Secured Obligations may be
contingent and unmatured. Each Bank which sets-off pursuant
to this Section 17(a) shall give prompt notice to the
Company following the occurrence thereof; provided that the
failure to give such notice shall not affect the validity of
the set-off.
(b) Any payment obtained by any Bank pursuant to
Section 17(a) (or in any other manner directly from the
Company) shall be remitted to the Agent and distributed
among the Secured Parties in accordance with the provisions
of Section 10(e).
18. SEVERABILITY. If for any reason any provision or
provisions hereof are determined to be invalid and contrary
to any existing or future law, such invalidity shall not
impair the operation of or affect those portions of this
Agreement which are valid. Each waiver in this Agreement is
subject to the overriding and controlling rule that it shall
be effective only if and to the extent that (a) it is not
prohibited by applicable law and (b) applicable law neither
provides for nor allows any material sanctions to be imposed
against the Secured Parties for having bargained for and
obtained it.
19. WAIVER OF JURY TRIAL. The Company hereby waives
and agrees to waive any right it may have to a jury trial in
connection with any action, suit or proceeding arising out
of or related in any way to this agreement or any other
credit document.
20. GOVERNING LAW; JURISDICTION.
(a) This agreement and each issue arising
hereunder shall be governed by, and construed in accordance
with, the laws of the State of New York (excluding its
conflicts of laws principles), except to the extent provided
in Section 12.14(b) of the credit agreement and to the
extent that the federal laws of the United States of America
may otherwise apply. The parties agree that this choice of
New York law has been made pursuant to Section 5-1401 of the
general obligations law of the State of New York. Unless
otherwise defined herein or in the Credit Agreement, terms
defined in Articles 8 and 9 of the Uniform Commercial Code
in the State of New York are used herein as therein defined.
19
(b) Except as otherwise provided in Section
20(d), any legal action or proceeding with respect to this
Agreement may be brought in the courts of the State of New
York or of the United States of America for the Southern
District of New York, and by execution and delivery of this
Agreement, the Company hereby consents, for itself and in
respect of its property, to the jurisdiction of the
aforesaid courts. The Company hereby irrevocably waives any
objection, including without limitation, any objection to
the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in
respect of this Agreement, any other Credit Document, or any
document related to this Agreement or any other Credit
Document. The Company agrees that a final judgment in any
such action or proceeding shall be conclusive and may be
enforced in any other jurisdictions by suit on the judgment
or in any other manner provided by law. The parties agree
that, for the purpose of any proceeding brought in The
Netherlands to enforce a final judgment of the aforesaid
courts, (a) the pledge and grant of a security interest
described in Section 1 of this Agreement shall be construed
to grant to the Agent, in addition, a first ranking right of
pledge (pandrecht) under the law of The Netherlands and (b)
any findings of fact rendered by such courts shall be (and
shall be deemed to be) admitted by each party.
(c) The Company has irrevocably appointed CT
Corporation System, with an office at 1633 Broadway, New
York, New York, (the "Process Agent"), as its agent to
receive on behalf of the Company and its property service of
copies of the summons and complaint and any other process
which may be served in any action or proceeding arising out
of or relating to this Agreement. Such service may be made
by mailing or delivering a copy of such process to the
Company in care of the Process Agent at the Process Agent's
above address, and the Company hereby irrevocably authorizes
and directs the Process Agent to accept such service on its
behalf. As an alternative method of service, the Company
also irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing of
copies of such process to the Company at its address
specified on the signature page hereof. Process may be
served in English, and the Company irrevocably waives any
right accruing to it under the Hague Convention on the
Service Abroad of Judicial and Extrajudicial Documents, the
Hague Convention on the Taking of Evidence Abroad in Civil
or Commercial Matters, the law of The Netherlands, and any
similar treaty regarding the service of process or the
collection of evidence. Any process and documents to be
sent to the other party containing languages other than
English shall be sent with English translations certified by
the sender, and the sending party shall bear the translation
costs.
(d) Nothing in this Section 20 shall affect the
right of the Agent
20
or any other Secured Party to serve legal process in any
other manner permitted by law or affect the right of the
Agent or any other Secured Party to bring any action or
proceeding against the Company in the courts of any other
jurisdictions.
(e) To the extent the Company has or hereafter
may acquire any immunity from jurisdiction of any court or
from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or
its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
(f) This agreement together with the other credit
documents embodies the entire agreement and understanding
among the parties with respect to its subject matter and
supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating
to such subject matter.
21. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original for all purposes; but such counterparts shall
be deemed to constitute but one and the same instrument.
22. WAIVER OF SUBROGATION. The Company expressly
waives any and all rights of subrogation, reimbursement and
contribution (contractual, statutory or otherwise) against
the Secured Parties, individually and collectively,
including without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11 of the U.S.
Code) or any successor statute, arising from the existence
or performance of this Agreement and the Company irrevocably
waives any right to enforce any remedy which the Secured
Parties, or any one or more of them, now have or may
hereafter have against Borrowers and waives any benefit of,
and any right to participate in, any security now or
hereafter held by the Secured Parties, or any one or more of
them, until the Secured Obligations have been paid and
performed in full (after the termination of the Commitments
and the expiration or termination of all outstanding Letters
of Credit).
23. SUBORDINATION. The Company hereby expressly
covenants and agrees for the benefit of the Secured Parties
that all obligations and liabilities of the Borrowers to the
Company of whatsoever description (including, without
limitation, all intercompany receivables of the Company from
each of the Borrowers) shall be subordinated and junior in
right of payment to the Secured Obligations. Following the
occurrence of an Event of Default, all indebtedness of the
Borrowers to the Company shall, if the Agent shall so
request, be collected and received by the Company as trustee
for the Secured Parties and paid over
21
to the Secured Parties, or any one or more of them, as the
case may be, on account of the Secured Obligations, but
without reducing or affecting in any manner the obligations
of the Company under this Agreement.
23. INCORPORATION BY REFERENCE.
(a) Article I of the Credit Agreement is
incorporated by reference in this Agreement. Article XII of
the Credit Agreement is incorporated by reference in this
Agreement with the same effect as if the Company were named
as a Borrower therein.
(b) The limitation on the Secured Obligations
described in Section 2 of this Agreement shall not affect or
excuse the liability or obligations of any Guarantor, nor
may any similar limitation in Section 10.2 of the Credit
Agreement be raised as a defense to any action or claim
against the Company (collectively, such limitations are
herein referred to as the "Limitations"). The Agent shall
have the right to determine and designate from time to time,
without notice or assent of the Company, which portions of
the Obligations to which such limitations apply, and the
Company acknowledges that such determination and designation
shall be conclusive. This Agreement shall not fail or be
ineffective or invalid or be considered too indefinite or
contingent with respect to the Company because the deemed
Guaranteed Debt applicable to the Company may fluctuate from
time to time or for any other reason. The Company agrees
that, as it relates to its deemed Guaranteed Debt, any
payment or prepayment by any Guarantor or any other Person
against any part of the Secured Obligations shall be deemed
paid first against that portion that is limited by the
Limitations, and the balance, if any, shall be applied to
remaining Secured Obligations, in such order and manner as
the Agent shall determine in its sole discretion. The
Company's covenants, agreements and obligations under this
Agreement shall in no way be released, diminished, reduced,
impaired or otherwise affected by reason of the happening
from time to time of any of the matters, events or
conditions described in Section 10.4 of the Credit
Agreement, regardless of whether the Company is given any
notice or is asked for or gives any consent (all
requirements for which, however arising, the Company hereby
waives). In addition to the other terms and conditions of
this Agreement, the Company agrees that every waiver,
release, subordination, representation, warranty and
agreement described in Article X of the Credit Agreement
(except those imposing vicarious, personal liability on
Guarantors for the Obligations (e.g., Sections 10.2, 10.7
and 10.19)) are hereby made by the Company and made a part
of this Agreement, and the same shall apply, with necessary
changes in points of detail, to this Agreement to the same
extent as if the Company were named as a Guarantor and
Borrower in the Credit Agreement.
24. MISCELLANEOUS TERMS.
22
(a) The Company represents and warrants to the
Agent and the other Secured Parties that (i) no resolution
of the general meeting of shareholders is in effect which
would require approval from the general meeting of
shareholders or any other party in connection with the
execution of this Agreement or the performance of this
Agreement in accordance with its terms, (ii) Vintondale
Corporation N.V. ("Vintondale") is aware of the terms and
conditions of this Agreement and consents to the Company's
execution of it, (iii) with the exception of debts owing to
Vintondale or WGI and tax obligations arising in the
ordinary course of business that are not yet due and
payable, the Company is not directly or indirectly indebted
to any Person, nor has it guaranteed the indebtedness of any
Person, (iv) no shareholder or shareholders of the Company
have passed a resolution approving a voluntary winding-up of
the Company or approved a statutory merger (juridische
fusie) (as disappearing entity), (v) no receiver, trustee,
administrator or similar officer has been appointed in
respect of the Company, (vi) no petition has been presented
to a court for the bankruptcy (faillissment), dissolution
(ontbinding en vereffening), voluntary dissolution
(ontbinding), or suspension of payments (surseance van
betaling) of the Company, and (vii) the execution and
performance of this Agreement is in the Company's direct
interests, serves to attain the objects expressed in the
Company's articles of association, and does not jeopardize
the subsistence of the Company.
(b) The Company covenants that it shall not incur
any indebtedness (other than indebtedness to Vintondale and
tax obligations arising in the ordinary course of business)
or guarantee the obligations of any Person, in excess of
US$100,000 in each case, without (i) notifying the Agent in
writing at least five days in advance of the incurrence of
the debt (unless the creditor is a Subsidiary of WGI) or the
issuance of the guarantee and, (ii) unless such obligee is
a Subsidiary of WGI having actual knowledge of the the
pledge and security interest granted in this Agreement,
informing the obligee in writing of the existence, nature
and extent of the pledge and security interest granted in
this Agreement.
(c) The Company shall cause to be prominently
noted each year in its publicly filed annual statement of
accounts that all of its interests in the Pledged Collateral
have been pledged to the Agent to secure a $150,000,000
credit facility extended to the Company's affiliates.
(d) The Company shall register the pledge of
receivables under this Agreement with the relevant Inspectie
voor de Registratie en Successie in The Netherlands.
23
IN WITNESS WHEREOF, the Company has caused this
Agreement to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above
written.
MUSKETEER OIL B.V.
By: /s/ illegible
-----------------------------------
Name: Holland Intertrust Corporation, B.V.
-----------------------------------
Title: Managing Director
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With a copy to: Address:
▇▇▇▇ ▇. ▇▇▇▇, Esq. Museumplein 11, 1071 DJ
▇▇▇▇ ▇. ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇▇, The Netherlands
Suite 700 Attention: Floris van der
▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Telex: ▇▇▇▇▇
▇.▇.▇. Answerback: HOLD NL
Telecopier: 918/748-7026 Telecopier: 011-31-20-6647747
AGREED TO:
ABN AMRO BANK N.V., as Agent
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ Board
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Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Board
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Title: Group Vice President Vice President
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By signing below, WILLBROS USA, INC. confirms that an
executed copy of this Pledge Agreement dated as of February
20, 1997 between Musketeer Oil B.V. and ABN AMRO Bank N.V.,
as Agent, has been submitted to it and acknowledges the
above pledge of the Pledged Collateral.
WILLBROS USA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Executive Vice President
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24
SCHEDULE I
TO
PLEDGE AGREEMENT
Attached to and forming a part of that certain Pledge
Agreement dated as of February 20, 1997 by Musketeer
Oil B.V. to ABN AMRO Bank N.V., as Agent.
1. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 2
(e) Number of Shares: 167 shares
2. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 5
(e) Number of Shares: 1,137 shares
3. Description:
(a) Name of Subsidiary: Willbros USA, Inc.
(b) State or Country of Organization: Delaware
(c) Class of Stock: Common
(d) Stock Certificate No.: 7
(e) Number of Shares: 3,863 shares
SCHEDULE II
TO
PLEDGE AGREEMENT
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
For Value Received, the undersigned does hereby sell,
assign and transfer unto:
------------------------------------------------------------
------------------------------------------------------------
(-----------------------) Shares of the --------------------
Stock of ---------------------------------------------------
standing in ----------------------- ----------------------
name on the books of said Corporation represented by
certificate No. ---------------herewith and does hereby
irrevocably constitute and appoint -------------------------
--------------------------------------------attorney to
transfer the said stock on the books of the within named
Corporation with full power of substitution. This
instrument and each issue arising hereunder shall be
governed by, and construed in accordance with, the laws of
the State of New York (excluding its conflict of laws
principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law of
the State of New York.
MUSKETEER OIL B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Date:
-----------------------------------
Signature Attested to by:
-------------------------------------------------------
(Name)
-------------------------------------------------------
(Title)
-------------------------------------------------------
(Date)
SCHEDULE III
TO
PLEDGE AGREEMENT
PLEDGE AGREEMENT SUPPLEMENT
This Pledge Agreement Supplement, dated as of----------
-----------------------, ---------------, is delivered
pursuant to Section 5 of the Pledge Agreement referred to
below. The undersigned hereby agrees that this Pledge
Agreement Supplement may be attached to the Pledge Agreement
dated as of February 20, 1997 (the "Pledge Agreement"; the
terms defined therein and not otherwise defined herein being
used herein as therein defined), by and between the
undersigned and ABN AMRO Bank N.V., as Agent for the Banks
party to the Credit Agreement dated as of February 20, 1997,
among Willbros Group, Inc., certain of its Subsidiaries, the
several financial institutions from time to time a party
thereto, the Agent, and Credit Lyonnais New York Branch as
Co-Agent. This instrument and each issue arising hereunder
shall be governed by, and construed in accordance with, the
laws of the State of New York (excluding its conflict of
laws principles). This choice of New York law has been made
pursuant to Section 5-1401 of the General Obligations Law of
the State of New York.
The undersigned agrees that the securities listed below
shall for all purposes constitute Pledged Collateral and
shall be subject to the security interest created by the
Pledge Agreement.
The undersigned hereby certifies that the
representations and warranties set forth in Section 4 of the
Pledge Agreement are true and correct as to the Pledged
Collateral listed herein on and as of the date hereof.
MUSKETEER OIL B.V.
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
1. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
2. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
3. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
4. Description:
(a) Name of Subsidiary:
(b) State or Country of Organization:
(c) Class of Stock:
(d) Stock Certificate No.:
(e) Number of Shares:
By signing below, ------------------------------------------
confirms that an executed copy of the Pledge Agreement dated
as of February 20, 1997 between Musketeer Oil B.V. and ABN
AMRO Bank N.V., as Agent, together with this Pledge Agreement
Supplement, has been submitted to it and acknowledges the above
pledge of the Pledged Collateral.
[NAME OF COMPANY IN WHICH SHARES ARE
PLEDGED]
a [jurisdiction and form of organization]
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------