Exhibit 10.15
Page 1
[CONFORMED AS EXECUTED]
[Draft: (New York)
Exhibt 10.15
PLEDGE AND SECURITY AGREEMENT
PLEDGE AGREEMENT (as amended, modified, restated and/or supplemented from
time to time, this "Agreement"), dated as of June 27, 2001, made by each of the
undersigned pledgors (each a "Pledgor" and, together with any other entity that
becomes a pledgor hereunder pursuant to Section 25 hereof, the "Pledgors") to
CHRISTIANIA BANK OG KREDITKASSE ASA, NEW YORK BRANCH, as collateral agent (in
such capacity, together with any successor collateral agent, the "Pledgee"), for
the benefit of the Secured Creditors (as defined below). Except as otherwise
defined herein, all capitalized terms used herein and defined in the Credit
Agreement (as defined below) shall be used herein as therein defined.
W I T N E S S E T H :
WHEREAS, General Maritime Corporation (the "Borrower"), the lenders
from time to time party thereto (the "Lenders"), and Christiania Bank og
Kreditkasse ASA, New York Branch, as Administrative Agent (in such capacity,
together with any successor Administrative Agent, the "Administrative Agent"),
have entered into a Credit Agreement, dated as of June 27, 2001 (as amended,
modified, restated and/or supplemented from time to time, the "Credit
Agreement"), providing for the making of Loans to the Borrower as contemplated
therein (the Lenders, the Administrative Agent and the Pledgee are herein called
the "Lender Creditors") ;
WHEREAS, the Borrower may at any time and from time to time after
the date hereof enter into, or guaranty the obligations of one or more other
Pledgors or any of their respective Subsidiaries under, one or more Interest
Rate Protection Agreements or Other Hedging Agreements with respect to the
Borrower's obligations under the Credit Agreement with one or more Lenders or
any affiliate thereof (each such Lender or affiliate, even if the respective
Lender subsequently ceases to be a Lender under the Credit Agreement for any
reason, together with such Lender's or affiliate's successors and assigns, if
any, collectively, the "Other Creditors" and, together with the Lenders, are
herein called the "Secured Creditors");
WHEREAS, it is a condition precedent to the making of Loans to the
Borrower under the Credit Agreement that each Pledgor shall have executed and
delivered to the Pledgee this Agreement; and
WHEREAS, each Pledgor desires to enter into this Agreement in order
to satisfy the condition described in the preceding paragraph;
NOW, THEREFORE, in consideration of the foregoing and other benefits
accruing to each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Pledgee for the benefit of the Secured Creditors and hereby
covenants and agrees with the Pledgee for the benefit of the Secured Creditors
as follows:
Page 2
1. SECURITY FOR OBLIGATIONS; ESTABLISHMENT OF CONCENTRATION ACCOUNT.
1.1. SECURITY. This Agreement is made by each Pledgor for the
benefit of the Secured Creditors to secure:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, principal, premium,
interest, fees and indemnities (including, without limitation, all
interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency, reorganization or
similar proceeding of any Pledgor at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding)) of such Pledgor to the Lender
Creditors, whether now existing or hereafter incurred under, arising out
of, or in connection with, the Credit Agreement and the other Credit
Documents to which such Pledgor is a party (including, in the case of each
Pledgor that is a Subsidiary Guarantor, all such obligations, liabilities
and indebtedness of such Pledgor under the Subsidiaries Guaranty) and the
due performance and compliance by such Pledgor with all of the terms,
conditions and agreements contained in the Credit Agreement and in such
other Credit Documents (all such obligations, liabilities and indebtedness
under this clause (i), except to the extent consisting of obligations,
liabilities or indebtedness with respect to Interest Rate Protection
Agreements or Other Hedging Agreements, being herein collectively called
the "Credit Document Obligations");
(ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations, liabilities
and indebtedness (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action relating to
the bankruptcy, insolvency, reorganization or similar proceeding of any
Pledgor at the rate provided for in the respective documentation, whether
or not a claim for post-petition interest is allowed in any such
proceeding) owing by such Pledgor to the Other Creditors under, or with
respect to (including, in the case of each Pledgor that is a Subsidiary
Guarantor, all such obligations, liabilities and indebtedness of such
Pledgor under the Subsidiaries Guaranty), any Interest Rate Protection
Agreement or Other Hedging Agreement, whether such Interest Rate
Protection Agreement or Other Hedging Agreement is now in existence or
hereafter arising, and the due performance and compliance by such Pledgor
with all of the terms, conditions and agreements contained therein (all
such obligations, liabilities and indebtedness described in this clause
(ii) being herein collectively called the "Other Obligations");
(iii) any and all sums advanced by the Pledgee in order to preserve
the Collateral (as hereinafter defined) or preserve its security interest
in the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any
Page 3
indebtedness, obligations or liabilities of such Pledgor referred to in
clauses (i) and (ii) above, after an Event of Default shall have occurred
and be continuing, the reasonable expenses of retaking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on the
Collateral, or of any exercise by the Pledgee of its rights hereunder,
together with reasonable attorneys' fees and court costs; and
(v) all amounts paid by any Secured Creditor as to which such
Secured Creditor has the right to reimbursement under Section 11 of this
Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (v) of this Section 1.1 being herein collectively called the
"Obligations," it being acknowledged and agreed that the "Obligations" shall
include extensions of credit of the types described above, whether outstanding
on the date of this Agreement or extended from time to time after the date of
this Agreement.
1.2. CONCENTRATION ACCOUNTS. The relevant Pledgor and the Pledgee
have established in the name and for the benefit of the Pledgee, as agent for
the Secured Creditors, the Concentration Accounts for purposes of this Agreement
and the other relevant Credit Documents, which Concentration Accounts are
maintained at the Pledgee's office located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Concentration Accounts shall be under the sole
dominion and control of the Pledgee, as agent for the Secured Creditors, and the
Pledgee shall have the sole right to direct withdrawals from the Concentration
Accounts and to exercise all rights with respect to all of the Earnings
Collateral from time to time therein pursuant to the terms of this Agreement.
All Earnings Collateral delivered to, or held by or on behalf of, the Pledgee
pursuant to each of the Assignment of Earnings shall be held in the
Concentration Accounts in accordance with the provisions thereof.
2. DEFINITIONS. (a) Unless otherwise defined herein, all capitalized
terms used herein and defined in the Credit Agreement shall be used herein as
therein defined. Reference to singular terms shall include the plural and vice
versa.
(b) The following capitalized terms used herein shall have the
definitions specified below:
"ADMINISTRATIVE AGENT" has the meaning set forth in the Recitals
hereto.
"ADVERSE CLAIM" has the meaning given such term in Section
8-102(a)(1) of the UCC.
"AGREEMENT" has the meaning set forth in the first paragraph hereof.
"BORROWER" has the meaning set forth in the Recitals hereto.
"CERTIFICATED SECURITY" has the meaning given such term in Section
8-102(a)(4) of the UCC.
Page 4
"CLEARING CORPORATION" has the meaning given such term in Section
8-102(a)(5) of the UCC.
"COLLATERAL" has the meaning set forth in Section 3.1 hereof.
"CONCENTRATION ACCOUNTS" shall mean, collectively, the following
accounts: (i) Account No.: , Account Name: GENMAR
CORPORATION; (ii) Account No.: , Account Name: GENMAR
CHAMPION LTD.; (iii) Account No.: , Account Name: GENMAR
SPIRIT LTD.; (iv) Account No.: , Account Name: GENMAR STAR
LTD.; (v) Account No.: , Account Name: GENMAR TRUST LTD.;
(vi) Account No.: , Account Name: GENMAR CHALLENGER LTD.;
(vii) Account No.: , Account Name: GENMAR ENDURANCE LTD.;
(viii) Account No.: , Account Name: GENMAR TRADER LTD.;
(ix) Account No.: , Account Name: GENMAR LEONIDAS LTD.; (x)
Account No.: , Account Name: GENMAR ▇▇▇▇▇▇ LTD. And (xi)
the Primary Concentration Account.
"CREDIT AGREEMENT" has the meaning set forth in the Recitals hereto.
"CREDIT DOCUMENT OBLIGATIONS" has the meaning set forth in Section
1.1(i) hereof.
"EARNINGS COLLATERAL" shall mean, collectively, all of the
collateral granted, sold, conveyed, assigned, transferred, mortgaged and pledged
pursuant to, and in accordance with, Section 1 of each Assignment of Earnings.
"EVENT OF DEFAULT" means any Event of Default under, and as defined
in, the Credit Agreement and any payment default under any Interest Rate
Protection Agreement or Other Hedging Agreement after any applicable grace
period.
"INDEMNITEES" has the meaning set forth in Section 11 hereof.
"LENDER CREDITORS" has the meaning set forth in the Recitals hereto.
"LENDERS" has the meaning set forth in the Recitals hereto.
"LIMITED LIABILITY COMPANY ASSETS" means all assets, whether
tangible or intangible and whether real, personal or mixed (including, without
limitation, all limited liability company capital and interest in other limited
liability companies), at any time owned or represented by any Limited Liability
Company Interest.
"LIMITED LIABILITY COMPANY INTERESTS" means the entire limited
liability company membership interest at any time owned by any Pledgor in any
limited liability company.
"OBLIGATIONS" has the meaning set forth in Section 1.1 hereof.
Page 5
"OTHER CREDITORS" has the meaning set forth in the Recitals hereto.
"OTHER OBLIGATIONS" has the meaning set forth in Section 1.1(ii)
hereof.
"PARTNERSHIP ASSETS" means all assets, whether tangible or
intangible and whether real, personal or mixed (including, without limitation,
all partnership capital and interest in other partnerships), at any time owned
or represented by any Partnership Interest.
"PARTNERSHIP INTEREST" shall mean the entire general partnership
interest or limited partnership interest at any time owned by any Pledgor in any
general partnership or limited partnership.
"PERSON" means any individual, partnership, joint venture, firm,
corporation, association, limited liability company, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"PLEDGEE" has the meaning set forth in the first paragraph hereof.
"PLEDGOR" has the meaning set forth in the first paragraph hereof.
"PRIMARY CONCENTRATION ACCOUNT" shall have the meaning provided in
Section 20(c).
"PROCEEDS" has the meaning given such term in Section 9-306(l) of
the UCC.
"REQUIRED SECURED CREDITORS" means (i) at any time when any Credit
Document Obligations are outstanding or any Commitments under the Credit
Agreement exist, the Required Lenders (or, to the extent provided in Section
13.12 of the Credit Agreement, each of the Lenders), and (ii) at any time after
all of the Credit Document Obligations have been paid in full in cash and all
Commitments under the Credit Agreement have been terminated and if any Other
Obligations are outstanding, the holders of a majority of the Other Obligations.
"SECURED CREDITORS" has the meaning set forth in the Recitals
hereto.
"SECURED DEBT AGREEMENTS" means and includes this Agreement, the
other Credit Documents and the Interest Rate Protection Agreements and Other
Hedging Agreements entered into with any Other Creditors.
"SECURITIES ACT" means the Securities Act of 1933, as amended, as in
effect from time to time.
"SECURITY" and "SECURITIES" has the meaning given such term in
Section 8-102(a)(15) of the UCC and shall in any event also include all Stock.
"SECURITY ENTITLEMENT" has the meaning given such term in Section
8-102(a)(17)
Page 6
of the UCC.
"STOCK" means all of the issued and outstanding shares of capital
stock of any corporation at any time owned by any Pledgor.
"SUBSIDIARY" means, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"TERMINATION DATE" has the meaning set forth in Section 20 hereof.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York from time to time; PROVIDED that all references herein to specific
sections or subsections of the UCC are references to such sections or
subsections, as the case may be, of the Uniform Commercial Code as in effect in
the State of New York on the date hereof.
"UNCERTIFICATED SECURITY" has the meaning given such term in Section
8-102(a)(18) of the UCC.
3. PLEDGE OF STOCK, ACCOUNTS, ETC.
3.1 PLEDGE. To secure the Obligations now or hereafter owed or to be
performed by such Pledgor, each Pledgor does hereby grant, pledge and assign to
the Pledgee for the benefit of the Secured Creditors, and does hereby create a
continuing first priority security interest in favor of the Pledgee for the
benefit of the Secured Creditors in, all of the right, title and interest in and
to the following, whether now existing or hereafter from time to time acquired
(collectively, the "Collateral"):
(a) the Concentration Accounts, together with all of the Pledgor's
right, title and interest in and to all sums of property (including cash
equivalents and other investments) now or at any time hereafter on deposit
therein, credited thereto or payable thereon, and all instruments,
documents and other writings evidencing the Concentration Accounts;
(b) all Stock of any Subsidiary Guarantor owned by such Pledgor from
time to time and all options and warrants owned by such Pledgor from time
to time to purchase Stock of any Subsidiary Guarantor;
(c) all Limited Liability Company Interests in any Subsidiary
Guarantor owned by such Pledgor from time to time and all of its right,
title and interest in each
Page 7
limited liability company to which each such interest relates, whether now
existing or hereafter acquired, including, without limitation, to the
fullest extent permitted under the terms and provisions of the documents
and agreements governing such Limited Liability Company Interests and
applicable law:
(A) all the capital thereof and its interest in all profits,
losses, Limited Liability Company Assets and other distributions to
which such Pledgor shall at any time be entitled in respect of such
Limited Liability Company Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Limited Liability Company Interests, whether under any
limited liability company agreement or otherwise, whether as
contractual obligations, damages, insurance proceeds or otherwise;
(C) all of such Pledgor's claims, rights, powers, privileges,
authority, options, security interests, liens and remedies, if any,
under any limited liability company agreement or operating
agreement, or at law or otherwise in respect of such Limited
Liability Company Interests;
(D) all present and future claims, if any, of such Pledgor
against any such limited liability company for moneys loaned or
advanced, for services rendered or otherwise;
(E) all of such Pledgor's rights under any limited liability
company agreement or operating agreement or at law to exercise and
enforce every right, power, remedy, authority, option and privilege
of such Pledgor relating to such Limited Liability Company
Interests, including any power to terminate, cancel or modify any
limited liability company agreement or operating agreement, to
execute any instruments and to take any and all other action on
behalf of and in the name of such Pledgor in respect of such Limited
Liability Company Interests and any such limited liability company,
to make determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or receive
any notice, consent, amendment, waiver or approval, together with
full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Limited Liability
Company Asset, to enforce or execute any checks, or other
instruments or orders, to file any claims and to take any action in
connection with any of the foregoing; and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof;
Page 8
(d) all Partnership Interests in any Subsidiary Guarantor owned by
such Pledgor from time to time and all of its right, title and interest in
each partnership to which each such interest relates, whether now existing
or hereafter acquired, including, without limitation, to the fullest
extent permitted under the terms and provisions of the documents and
agreements governing such Partnership Interests and applicable law:
(A) all the capital thereof and its interest in all profits,
losses, Partnership Assets and other distributions to which such
Pledgor shall at any time be entitled in respect of such Partnership
Interests;
(B) all other payments due or to become due to such Pledgor in
respect of Partnership Interests, whether under any partnership
agreement or otherwise, whether as contractual obligations, damages,
insurance proceeds or otherwise;
(C) all of its claims, rights, powers, privileges, authority,
options, security interests, liens and remedies, if any, under any
partnership agreement or operating agreement, or at law or otherwise
in respect of such Partnership Interests;
(D) all present and future claims, if any, of such Pledgor
against any such partnership for moneys loaned or advanced, for
services rendered or otherwise;
(E) all of such Pledgor's rights under any partnership
agreement or operating agreement or at law to exercise and enforce
every right, power, remedy, authority, option and privilege of such
Pledgor relating to such Partnership Interests, including any power
to terminate, cancel or modify any partnership agreement or
operating agreement, to execute any instruments and to take any and
all other action on behalf of and in the name of any of such Pledgor
in respect of such Partnership Interests and any such partnership,
to make determinations, to exercise any election (including, but not
limited to, election of remedies) or option or to give or receive
any notice, consent, amendment, waiver or approval, together with
full power and authority to demand, receive, enforce, collect or
receipt for any of the foregoing or for any Partnership Asset, to
enforce or execute any checks, or other instruments or orders, to
file any claims and to take any action in connection with any of the
foregoing; and
(F) all other property hereafter delivered in substitution for
or in addition to any of the foregoing, all certificates and
instruments representing or evidencing such other property and all
cash, securities, interest, dividends, rights and other property at
any time and from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all thereof; and
(e) all Proceeds of any and all of the foregoing.
Page 9
3.2. PROCEDURES. (a) To the extent that any Pledgor at any time or
from time to time owns, acquires or obtains any right, title or interest in any
Collateral, such Collateral shall automatically (and without the taking of any
action by the respective Pledgor) be pledged pursuant to Section 3.1 of this
Agreement and, in addition thereto, such Pledgor shall (to the extent provided
below) take, or, in the case of Section 3.2(a)(v), authorize the Pledgee to
take, the following actions as set forth below (as promptly as practicable and,
in any event, within 30 days after it obtains such Collateral) for the benefit
of the Pledgee and the Secured Creditors:
(i) with respect to a Certificated Security (other than a
Certificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall deliver such Certificated Security to the
Pledgee with powers executed in blank;
(ii) with respect to an Uncertificated Security (other than an
Uncertificated Security credited on the books of a Clearing Corporation),
the respective Pledgor shall cause the issuer of such Uncertificated
Security (or, in the case of an issuer that is not a Subsidiary of such
Pledgor, will use reasonable efforts to cause such issuer) to duly
authorize and execute, and deliver to the Pledgee, an agreement for the
benefit of the Pledgee and the other Secured Creditors substantially in
the form of Annex G hereto (appropriately completed to the reasonable
satisfaction of the Pledgee and with such modifications, if any, as shall
be reasonably satisfactory to the Pledgee) pursuant to which such issuer
agrees to comply with any and all instructions originated by the Pledgee
without further consent by the registered owner and not to comply with
instructions regarding such Uncertificated Security originated by any
other Person other than a court of competent jurisdiction;
(iii) with respect to a Certificated Security, Uncertificated
Security, Partnership Interest or Limited Liability Company Interest
credited on the books of a Clearing Corporation (including a Federal
Reserve Bank, Participants Trust Company or The Depository Trust Company),
the respective Pledgor shall promptly notify the Pledgee thereof and shall
promptly take all actions required (i) to comply in all material respectes
with the applicable rules of such Clearing Corporation and (ii) to perfect
the security interest of the Pledgee under applicable law (including, in
any event, under Sections 9-115 (4)(a) and (b), 9-115 (1)(e) and 8-106(d)
of the UCC). The Pledgor further agrees to take such actions as the
Pledgee deems reasonably necessary to effect the foregoing;
(iv) with respect to a Partnership Interest or a Limited Liability
Company Interest (other than a Partnership Interest or Limited Liability
Interest credited on the books of a Clearing Corporation), (1) if such
Partnership Interest or Limited Liability Company Interest is represented
by a certificate and is a Security for purposes of the UCC, the procedure
set forth in Section 3.2(a)(i) hereof, and (2) if such Partnership
Interest or Limited Liability Company Interest is not represented by a
certificate or is not a Security for purposes of the UCC, the procedure
set forth in Section 3.2(a)(ii) hereof; and
(v) with respect to cash proceeds from any of the Collateral
described in Section
Page 10
3.1 hereof which are not released to such Pledgor in accordance with
Section 6 hereof, (i) establishment by the Pledgee of a cash account in
the name of such Pledgor over which the Pledgee shall have exclusive and
absolute control and dominion (and no withdrawals or transfers may be made
therefrom by any Person except with the prior written consent of the
Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to
Section 3.2(a) hereof, each Pledgor shall take the following additional
actions with respect to the Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with
respect to which the Pledgee may obtain "control" thereof within the
meaning of Section 8-106 of the UCC (or under any provision of the UCC as
same may be amended or supplemented from time to time, or under the laws
of any relevant State other than the State of New York), the respective
Pledgor shall take all actions as may be reasonably requested from time to
time by the Pledgee so that "control" of such Collateral is obtained and
at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate
financing statements (on Form UCC-1 or other appropriate form) under the
Uniform Commercial Code as in effect in the various relevant states,
covering all Collateral hereunder (with the form of such financing
statements to be satisfactory to the Pledgee), to be filed in the relevant
filing offices so that at all times the Pledgee has a security interest in
all Collateral which is perfected by the filing of such financing
statements (in each case to the maximum extent perfection by filing may be
obtained under the laws of the relevant states, including, without
limitation, Section 9-115(4)(b) of the UCC).
3.3. SUBSEQUENTLY ACQUIRED COLLATERAL. If any Pledgor shall acquire
(by purchase, stock dividend or similar distribution or otherwise) any
additional Collateral at any time or from time to time after the date hereof,
such Collateral shall automatically (and without any further action being
required to be taken) be subject to the pledge and security interests created
pursuant to Section 3.1 hereof and, furthermore, the respective Pledgor will
promptly thereafter take (or cause to be taken) all action with respect to such
Collateral in accordance with the procedures set forth in Section 3.2 hereof,
and will promptly thereafter deliver to the Pledgee (i) a certificate executed
by a principal executive officer of such Pledgor describing such Collateral and
certifying that the same has been duly pledged in favor of the Pledgee (for the
benefit of the Secured Creditors) hereunder and (ii) supplements to Annexes A
through F hereto as are reasonably necessary to cause such annexes to be
complete and accurate at such time.
3.4. TRANSFER TAXES. Each pledge of Collateral under Section 3.1 or
Section 3.3 hereof shall be accompanied by any transfer tax stamps required in
connection with the pledge of such Collateral.
3.5. CERTAIN REPRESENTATIONS AND WARRANTIES REGARDING THE
COLLATERAL. Each
Page 11
Pledgor represents and warrants that on the date hereof: (i) the jurisdiction of
organization of such Pledgor, and such Pledgor's organizational identification
number, is listed on Annex A hereto; (ii) each Subsidiary of such Pledgor that
is a Subsidiary Guarantor is listed in Annex B hereto; (iii) the Stock (and any
warrants or options to purchase Stock) of any Subsidiary Guarantor held by such
Pledgor consists of the number and type of shares of the stock (or warrants or
options to purchase any stock) of the corporations as described in Annex C
hereto; (iv) such Stock constitutes that percentage of the issued and
outstanding capital stock of the respective Subsidiary Guarantors as is set
forth in Annex C hereto; (v) the Limited Liability Company Interests in any and
all Subsidiary Guarantors held by such Pledgor consist of the number and type of
interests of the respective Subsidiary Guarantors described in Annex D hereto;
(vi) each such Limited Liability Company Interest constitutes that percentage of
the issued and outstanding equity interest of the respective Subsidiary
Guarantors as set forth in Annex D hereto; (vii) the Partnership Interests held
by such Pledgor in any and all Subsidiary Guarantors consist of the number and
type of interests of the respective Subsidiary Guarantors described in Annex E
hereto; (viii) each such Partnership Interest constitutes that percentage or
portion of the entire partnership interest of the Partnership as set forth in
Annex E hereto; (ix) the Pledgor has complied with the respective procedure set
forth in Section 3.2(a) hereof with respect to each item of Collateral described
in Annexes B through E hereto; and (xi) on the date hereof, such Pledgor owns no
other Stock, Limited Liability Company Interests or Partnership Interests of, in
each case, any Subsidiary Guarantor.
4. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC. If and to the
extent necessary to enable the Pledgee to perfect its security interest in any
of the Collateral or to exercise any of its remedies hereunder, the Pledgee
shall have the right to appoint one or more sub-agents for the purpose of
retaining physical possession of the Collateral, which may be held (in the
discretion of the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or in favor of the Pledgee or any nominee or nominees of the
Pledgee or a sub-agent appointed by the Pledgee.
5. VOTING, ETC., WHILE NO EVENT OF DEFAULT. Unless and until there
shall have occurred and be continuing an Event of Default, each Pledgor shall be
entitled to exercise any and all voting and other consensual rights pertaining
to the Collateral owned by it, and to give consents, waivers or ratifications in
respect thereof; PROVIDED that, in each case, no vote shall be cast or any
consent, waiver or ratification given or any action taken or omitted to be taken
which would violate or be inconsistent with any of the terms of any Secured Debt
Agreement, or which could reasonably be expected to have the effect of impairing
the value of the Collateral or any part thereof or the position or interests of
the Pledgee or any other Secured Creditor in the Collateral unless expressly
permitted by the terms of the Secured Debt Agreements. All such rights of each
Pledgor to vote and to give consents, waivers and ratifications shall cease in
case an Event of Default has occurred and is continuing, and Section 7 hereof
shall become applicable.
6. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless and until there shall
have occurred and be continuing an Event of Default, all cash dividends, cash
distributions, cash
Page 12
Proceeds and other cash amounts payable in respect of the Collateral shall be
paid to the respective Pledgor. The Pledgee shall be entitled to receive
directly, and to retain as part of the Collateral:
(i) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash dividends other than as set
forth above in the first sentence of this Section 6) paid or distributed
by way of dividend or otherwise in respect of the Collateral;
(ii) all other or additional stock, notes, limited liability company
interests, partnership interests, instruments or other securities or
property (including, but not limited to, cash) paid or distributed in
respect of the Collateral by way of stock-split, spin-off, split-up,
reclassification, combination of shares or similar rearrangement; and
(iii) all other or additional stock, notes, limited liability
company interests, partnership interests, instruments or other securities
or property (including, but not limited to, cash) which may be paid in
respect of the Collateral by reason of any consolidation, merger, exchange
of stock, conveyance of assets, liquidation or similar corporate or other
reorganization.
All dividends, distributions or other payments which are received by any Pledgor
contrary to the provisions of this Section 6 and Section 7 hereof shall be
received in trust for the benefit of the Pledgee, shall be segregated from other
property or funds of such Pledgor and shall be forthwith paid over and/or
delivered to the Pledgee as Collateral in the same form as so received (with any
necessary endorsement).
7. REMEDIES IN CASE OF AN EVENT OF DEFAULT. If there shall have
occurred and be continuing an Event of Default, then and in every such case, the
Pledgee shall be entitled to exercise all of the rights, powers and remedies
(whether vested in it by this Agreement, any other Secured Debt Agreement or by
law) for the protection and enforcement of its rights in respect of the
Collateral, and the Pledgee shall be entitled to exercise all the rights and
remedies of a secured party under the Uniform Commercial Code as in effect in
any relevant jurisdiction and also shall be entitled, without limitation, to
exercise the following rights, which each Pledgor hereby agrees to be
commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
otherwise payable under Section 6 hereof to the respective Pledgor;
(ii) to transfer all or any part of the Collateral into the
Pledgee's name or the name of its nominee or nominees;
(iii) to vote all or any part of the Collateral (whether or not
transferred into the name of the Pledgee) and give all consents, waivers
and ratifications in respect of the Collateral and otherwise act with
respect thereto as though it were the outright owner
Page 13
thereof (each Pledgor hereby irrevocably constituting and appointing the
Pledgee the proxy and attorney-in-fact of such Pledgor, with full power of
substitution to do so);
(iv) at any time and from time to time to sell, assign and deliver,
or grant options to purchase, all or any part of the Collateral, or any
interest therein, at any public or private sale, without demand of
performance, advertisement or notice of intention to sell or of the time
or place of sale or adjournment thereof or to redeem or otherwise (all of
which are hereby waived by each Pledgor), for cash, on credit or for other
property, for immediate or future delivery without any assumption of
credit risk, and for such price or prices and on such terms as the Pledgee
in its absolute discretion may determine, PROVIDED that at least 10 days'
written notice of the time and place of any such sale shall be given to
the respective Pledgor. The Pledgee shall not be obligated to make any
such sale of Collateral regardless of whether any such notice of sale has
theretofore been given. Each Pledgor hereby waives and releases to the
fullest extent permitted by law any right or equity of redemption with
respect to the Collateral, whether before or after sale hereunder, and all
rights, if any, of marshalling the Collateral and any other security for
the Obligations or otherwise. At any such sale, unless prohibited by
applicable law, the Pledgee on behalf of the Secured Creditors may bid for
and purchase all or any part of the Collateral so sold free from any such
right or equity of redemption. Neither the Pledgee nor any other Secured
Creditor shall be liable for failure to collect or realize upon any or all
of the Collateral or for any delay in so doing nor shall any of them be
under any obligation to take any action whatsoever with regard thereto;
and;
(v) to set-off any and all Collateral against any and all
Obligations.
8. REMEDIES, ETC., CUMULATIVE. Each and every right, power and
remedy of the Pledgee provided for in this Agreement or in any other Secured
Debt Agreement, or now or hereafter existing at law or in equity or by statute
shall be cumulative and concurrent and shall be in addition to every other such
right, power or remedy. The exercise or beginning of the exercise by the Pledgee
or any other Secured Creditor of any one or more of the rights, powers or
remedies provided for in this Agreement or any other Secured Debt Agreement or
now or hereafter existing at law or in equity or by statute or otherwise shall
not preclude the simultaneous or later exercise by the Pledgee or any other
Secured Creditor of all such other rights, powers or remedies, and no failure or
delay on the part of the Pledgee or any other Secured Creditor to exercise any
such right, power or remedy shall operate as a waiver thereof. No notice to or
demand on any Pledgor in any case shall entitle it to any other or further
notice or demand in similar or other circumstances or constitute a waiver of any
of the rights of the Pledgee or any other Secured Creditor to any other or
further action in any circumstances without notice or demand. The Secured
Creditors agree that this Agreement may be enforced only by the action of the
Pledgee, in each case acting upon the instructions of the Required Lenders (or,
after the date on which all Credit Document Obligations have been paid in full,
the holders of at least a majority of the outstanding Other Obligations) and
that no other Secured Creditor shall have any right individually to seek to
enforce or to enforce this Agreement or to realize upon the security to be
granted hereby, it being understood and agreed that such rights and remedies may
Page 14
be exercised by the Pledgee for the benefit of the Secured Creditors upon the
terms of this Agreement.
9. APPLICATION OF PROCEEDS. (a) All monies collected by the Pledgee
upon any sale or other disposition of the Collateral of each Pledgor, together
with all other monies received by the Pledgee hereunder (except to the extent
released in accordance with the applicable provisions of this Agreement or any
other Credit Document), shall be applied to the payment of the Obligations as
follows:
(i) first, to the payment of all amounts owing the Pledgee of the
type described in clauses (iii) and (iv) of Section 1.1;
(ii) second, to the extent proceeds remain after the application
pursuant to the preceding clause (i), an amount equal to the outstanding
Primary Obligations constituting Credit Document Obligations shall be paid
to the Lenders as provided in Section 9(d) hereof, with each Lender
receiving an amount equal to such outstanding Primary Obligations
constituting Credit Document Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations constituting
Credit Document Obligations, its Pro Rata Share of the amount remaining to
be distributed;
(iii) third, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) and (ii), an amount equal to the
outstanding Primary Obligations constituting Other Obligations shall be
paid to the Other Creditors as provided in Section 9(d) hereof, with each
Other Creditor receiving an amount equal to such outstanding Primary
Obligations constituting Other Obligations or, if the proceeds are
insufficient to pay in full all such Primary Obligations constituting
Other Obligations, its Pro Rata Share of the amount remaining to be
distributed;
(iv) fourth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iii), inclusive, an amount
equal to the outstanding Secondary Obligations shall be paid to the
Secured Creditors as provided in Section 9(d) hereof, with each Secured
Creditor receiving an amount equal to its outstanding Secondary
Obligations or, if the proceeds are insufficient to pay in full all such
Secondary Obligations, its Pro Rata Share of the amount remaining to be
distributed; and
(v) fifth, to the extent proceeds remain after the application
pursuant to the preceding clauses (i) through (iv), inclusive, and
following the termination of this Agreement pursuant to Section 20 hereof,
to the relevant Pledgor or to whomever may be lawfully entitled to receive
such surplus.
(b) For purposes of this Agreement (x) "Pro Rata Share" shall mean,
when calculating a Secured Creditor's portion of any distribution or amount,
that amount (expressed as a percentage) equal to a fraction the numerator of
which is the then unpaid amount of such Secured Creditor's Primary Obligations
or Secondary Obligations, as the case may be, and the
Page 15
denominator of which is the then outstanding amount of all Primary Obligations
or Secondary Obligations, as the case may be, (y) "Primary Obligations" shall
mean (i) in the case of the Credit Document Obligations, all principal of, and
interest on, all Loans and all fees incurred under the Credit Agreement and (ii)
in the case of the Other Obligations, all amounts due under such Interest Rate
Protection Agreements (other than indemnities, fees (including, without
limitation, attorneys' fees) and similar obligations and liabilities) and (z)
"Secondary Obligations" shall mean all Obligations other than Primary
Obligations.
(c) When payments to Secured Creditors are based upon their
respective Pro Rata Shares, the amounts received by such Secured Creditors
hereunder shall be applied (for purposes of making determinations under this
Section 9 only) (i) first, to their Primary Obligations and (ii) second, to
their Secondary Obligations. If any payment to any Secured Creditor of its Pro
Rata Share of any distribution would result in overpayment to such Secured
Creditor, such excess amount shall instead be distributed in respect of the
unpaid Primary Obligations or Secondary Obligations, as the case may be, of the
other Secured Creditors, with each Secured Creditor whose Primary Obligations or
Secondary Obligations, as the case may be, have not been paid in full to receive
an amount equal to such excess amount multiplied by a fraction the numerator of
which is the unpaid Primary Obligations or Secondary Obligations, as the case
may be, of such Secured Creditor and the denominator of which is the unpaid
Primary Obligations or Secondary Obligations, as the case may be, of all Secured
Creditors entitled to such distribution.
(d) All payments required to be made hereunder shall be made (x) if
to the Lender Creditors, to the Administrative Agent under the Credit Agreement
for the account of the Lender Creditors, and (y) if to the Other Creditors, to
the trustee, paying agent or other similar representative (each a
"Representative") for the Other Creditors or, in the absence of such a
Representative, directly to the Other Creditors.
(e) For purposes of applying payments received in accordance with
this Section 9, the Pledgee shall be entitled to rely upon (i) the
Administrative Agent under the Credit Agreement and (ii) the Representative for
the Other Creditors or, in the absence of such a Representative, upon the Other
Creditors for a determination (which the Administrative Agent, each
Representative for any Other Creditors and the Secured Creditors agree (or shall
agree) to provide upon request of the Pledgee) of the outstanding Primary
Obligations and Secondary Obligations owed to the Lender Creditors or the Other
Creditors, as the case may be. Unless it has actual knowledge (including by way
of written notice from a Lender Creditor or an Other Creditor) to the contrary,
the Administrative Agent and each Representative, in furnishing information
pursuant to the preceding sentence, and the Pledgee, in acting hereunder, shall
be entitled to assume that no Secondary Obligations are outstanding. Unless it
has actual knowledge (including by way of written notice from an Other Creditor)
to the contrary, the Pledgee, in acting hereunder, shall be entitled to assume
that no Interest Rate Protection Agreements are in existence.
(f) It is understood and agreed that each Pledgor shall remain
jointly and
Page 16
severally liable to the extent of any deficiency between the amount of the
proceeds of the Collateral pledged by it hereunder and the aggregate amount of
the Obligations of such Pledgor.
10. PURCHASERS OF COLLATERAL. Upon any sale of the Collateral by the
Pledgee hereunder (whether by virtue of the power of sale herein granted,
pursuant to judicial process or otherwise), the receipt of the Pledgee or the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold, and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Pledgee or such officer or be answerable in any way for the
misapplication or nonapplication thereof.
11. INDEMNITY. Each Pledgor jointly and severally agrees (i) to
indemnify and hold harmless the Pledgee and each other Secured Creditor and
their respective successors, assigns, employees, agents and affiliates
(individually an "Indemnitee," and collectively the "Indemnitees") from and
against any and all claims, demands, losses, judgments and liabilities
(including liabilities for penalties) of whatsoever kind or nature, and (ii) to
reimburse each Indemnitee for all reasonable costs and expenses, including
reasonable attorneys' fees, in each case growing out of or resulting from this
Agreement or the exercise by any Indemnitee of any right or remedy granted to it
hereunder or under any other Secured Debt Agreement (but excluding any claims,
demands, losses, judgments and liabilities or expenses to the extent incurred by
reason of gross negligence or willful misconduct of such Indemnitee (as
determined by a court of competent jurisdiction in a final and non-appealable
decision)). In no event shall the Pledgee be liable, in the absence of gross
negligence or willful misconduct on its part, for any matter or thing in
connection with this Agreement other than to account for monies actually
received by it in accordance with the terms hereof. If and to the extent that
the obligations of any Pledgor under this Section 11 are unenforceable for any
reason, such Pledgor hereby agrees to make the maximum contribution to the
payment and satisfaction of such obligations which is permissible under
applicable law.
12. PLEDGEE NOT A PARTNER OR LIMITED LIABILITY COMPANY MEMBER. (a)
Nothing herein shall be construed to make the Pledgee or any other Secured
Creditor liable as a member of any limited liability company or as a partner of
any partnership and neither the Pledgee nor any other Secured Creditor by virtue
of this Agreement or otherwise (except as referred to in the following sentence)
shall have any of the duties, obligations or liabilities of a member of any
limited liability company or partnership. The parties hereto expressly agree
that, unless the Pledgee shall become the absolute owner of Collateral
consisting of a Limited Liability Company Interest or Partnership Interest
pursuant hereto, this Agreement shall not be construed as creating a partnership
or joint venture among the Pledgee, any other Secured Creditor, any Pledgor
and/or any other Person.
(b) Except as provided in the last sentence of paragraph (a) of this
Section 12, the Pledgee, by accepting this Agreement, did not intend to become a
member of any limited liability company or a partner of any partnership or
otherwise be deemed to be a co-venturer with respect to any Pledgor, any limited
liability company, partnership and/or any other Person either
Page 17
before or after an Event of Default shall have occurred. The Pledgee shall have
only those powers set forth herein and the Secured Creditors shall assume none
of the duties, obligations or liabilities of a member of any limited liability
company or as a partner of any partnership or any Pledgor except as provided in
the last sentence of paragraph (a) of this Section 12.
(c) The Pledgee and the other Secured Creditors shall not be
obligated to perform or discharge any obligation of any Pledgor as a result of
the pledge hereby effected.
(d) The acceptance by the Pledgee of this Agreement, with all the
rights, powers, privileges and authority so created, shall not at any time or in
any event obligate the Pledgee or any other Secured Creditor to appear in or
defend any action or proceeding relating to the Collateral to which it is not a
party, or to take any action hereunder or thereunder, or to expend any money or
incur any expenses or perform or discharge any obligation, duty or liability
under the Collateral.
13. FURTHER ASSURANCES; POWER-OF-ATTORNEY. (a) Each Pledgor agrees
that it will join with the Pledgee in executing and, at such Pledgor's own
expense, file and refile under the Uniform Commercial Code or other applicable
law such financing statements, continuation statements and other documents in
such offices as the Pledgee may deem reasonably necessary and wherever required
by law in order to perfect and preserve the Pledgee's security interest in the
Collateral and hereby authorizes the Pledgee to file financing statements and
amendments thereto relative to all or any part of the Collateral without the
signature of such Pledgor where permitted by law, and agrees to do such further
acts and things and to execute and deliver to the Pledgee such additional
conveyances, assignments, agreements and instruments as the Pledgee may
reasonably require or deem necessary to carry into effect the purposes of this
Agreement or to further assure and confirm unto the Pledgee its rights, powers
and remedies hereunder.
(b) Each Pledgor hereby appoints the Pledgee such Pledgor's
attorney-in-fact, with full authority in the place and stead of such Pledgor and
in the name of such Pledgor or otherwise, to act from time to time solely after
the occurrence and during the continuance of an Event of Default in the
Pledgee's reasonable discretion to take any action and to execute any instrument
which the Pledgee may deem reasonably necessary or advisable to accomplish the
purposes of this Agreement.
14. THE PLEDGEE AS AGENT. The Pledgee will hold in accordance with
this Agreement all items of the Collateral at any time received under this
Agreement. It is expressly understood and agreed by each Secured Creditor that
by accepting the benefits of this Agreement each such Secured Creditor
acknowledges and agrees that the obligations of the Pledgee as holder of the
Collateral and interests therein and with respect to the disposition thereof,
and otherwise under this Agreement, are only those expressly set forth in this
Agreement and in Section 12 of the Credit Agreement. The Pledgee shall act
hereunder on the terms and conditions set forth herein and in Section 12 of the
Credit Agreement.
Page 18
15. TRANSFER BY THE PLEDGORS. No Pledgor will sell or otherwise
dispose of, grant any option with respect to, or mortgage, pledge or otherwise
encumber any of the Collateral or any interest therein (except as may be
permitted in accordance with the terms of the Secured Debt Agreements).
16. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PLEDGORS. (a)
Each Pledgor represents, warrants and covenants that:
(i) it is the legal, beneficial and record owner of, and has good
and marketable title to, all Collateral pledged by such Pledgor hereunder
and that it has sufficient interest in all Collateral pledged by such
Pledgor hereunder in which a security interest is purported to be created
hereunder for such security interest to attach (subject, in each case, to
no pledge, lien, mortgage, hypothecation, security interest, charge,
option, Adverse Claim or other encumbrance whatsoever, except the liens
and security interests created by this Agreement and Permitted Liens);
(ii) it has the corporate, limited partnership or limited liability
company power and authority, as the case may be, to pledge all the
Collateral pledged by it pursuant to this Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by such Pledgor and constitutes a legal, valid and binding
obligation of such Pledgor enforceable against such Pledgor in accordance
with its terms, except to the extent that the enforceability hereof may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in
equity or at law);
(iv) except to the extent already obtained or made, or, in the case
of any filings or recordings of the Security Documents (other than the
Vessel Mortgages) executed on or before the Initial Borrowing Date, to be
made within 10 days of the Initial Borrowing Date, no consent of any other
party (including, without limitation, any stockholder, partner, member or
creditor of such Pledgor or any of its Subsidiaries) and no consent,
license, permit, approval or authorization of, exemption by, notice or
report to, or registration, filing or declaration with, any governmental
authority is required to be obtained by such Pledgor in connection with
(a) the execution, delivery or performance by such Pledgor of this
Agreement, (b) the legality, validity, binding effect or enforceability of
this Agreement, (c) the perfection or enforceability of the Pledgee's
security interest in the Collateral pledged by such Pledgor hereunder or
(d) except for compliance with or as may be required by applicable
securities laws, the exercise by the Pledgee of any of its rights or
remedies provided herein;
(v) the execution, delivery and performance of this Agreement will
not violate any provision of any applicable law or regulation or of any
order, judgment, writ, award or decree of any court, arbitrator or
governmental authority, U.S. or non-U.S., applicable
Page 19
to such Pledgor, or of the certificate or articles of incorporation,
certificate of formation, operating agreement, limited liability company
agreement, partnership agreement or by-laws of such Pledgor, as
applicable, or of any securities issued by such Pledgor or any of its
Subsidiaries, or of any mortgage, deed of trust, indenture, lease, loan
agreement, credit agreement or other material contract, agreement or
instrument or undertaking to which such Pledgor or any of its Subsidiaries
is a party or which purports to be binding upon such Pledgor or any of its
Subsidiaries or upon any of their respective assets and will not result in
the creation or imposition of (or the obligation to create or impose) any
lien or encumbrance on any of the assets of such Pledgor or any of its
Subsidiaries which are Credit Parties, except as contemplated by this
Agreement;
(vi) all of the Collateral has been duly and validly issued and
acquired, is fully paid and non-assessable and is subject to no options to
purchase or similar rights;
(vii) the pledge and collateral assignment to, and possession by,
the Pledgee of the Collateral pledged by such Pledgor hereunder consisting
of Certificated Securities pursuant to this Agreement creates a valid and
perfected first priority security interest in such Certificated
Securities, and the proceeds thereof, subject to no prior Lien or to any
agreement purporting to grant to any third party a Lien on the property or
assets of such Pledgor which would include the Certificated Securities,
except for Permitted Liens, and the Pledgee is entitled to all the rights,
priorities and benefits afforded by the UCC or other relevant law as
enacted in any relevant jurisdiction to perfect security interests in
respect of such Collateral; and;
(viii) "control" (as defined in Section 8-106 of the UCC) has been
obtained by the Pledgee over all Collateral pledged by such Pledgor
hereunder consisting of Stock with respect to which such "control" may be
obtained pursuant to Section 8-106 of the UCC, and "control" (as defined
in Section 9-104 of Revised Article 9 (to the extent such Revised Article
9 remains in effect on or after July 1, 2001 in any applicable
jurisdiction)) has been obtained by the Pledgee over all Concentration
Accounts with respect to which such "control" may be obtained pursuant ot
Section 9-104 of Revised Article 9 of the UCC.
(b) Each Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the Collateral and the
proceeds thereof against the claims and demands of all persons whomsoever; and
each Pledgor covenants and agrees that it will have like title to and right to
pledge any other property at any time hereafter pledged to the Pledgee as
Collateral hereunder and will likewise defend the right thereto and security
interest therein of the Pledgee and the other Secured Creditors.
17. JURISDICTION OF ORGANIZATION; CHIEF EXECUTIVE OFFICE; RECORDS.
The jurisdiction of organization of each Pledgor is specified in Annex A hereto.
The chief executive office of each Pledgor is located at the address specified
in Annex F hereto. Each Pledgor will not change the jurisdiction of its
organization or move its chief executive
Page 20
office except to such new jurisdiction or location as such Pledgor may establish
in accordance with the last sentence of this Section 17. The originals of all
documents in the possession of such Pledgor evidencing all Collateral, including
but not limited to all Limited Liability Company Interests and Partnership
Interests, and the only original books of account and records of such Pledgor
relating thereto are, and will continue to be, kept at such chief executive
office as specified in Annex F hereto, or at such new locations as such Pledgor
may establish in accordance with the last sentence of this Section 17. All
Limited Liability Company Interests and Partnership Interests are, and will
continue to be, maintained at, and controlled and directed (including, without
limitation, for general accounting purposes) from, such chief executive office
as specified in Annex F hereto, or such new locations as such Pledgor may
establish in accordance with the last sentence of this Section 17. No Pledgor
shall establish a new jurisdiction of organization or a new location for such
chief executive offices until (i) it shall have given to the Pledgee not less
than 15 days' prior written notice of its intention so to do, providing clear
details of such new jurisdiction of organization or new location, as the case
may be, and providing such other information in connection therewith as the
Pledgee may reasonably request, and (ii) with respect to such new jurisdiction
of organization or new location, as the case may be, it shall have taken all
action, satisfactory to the Pledgee (and, to the extent applicable, in
accordance with Section 3.2 hereof), to maintain the security interest of the
Pledgee in the Collateral intended to be granted hereby at all times fully
perfected and in full force and effect. Promptly after establishing a new
jurisdiction of organization or new location for such chief executive offices in
accordance with the immediately preceding sentence, the respective Pledgor shall
deliver to the Pledgee a supplement to Annex A hereto or Annex F hereto, as the
case may be, so as to cause such Annex A or F, as the case may be, to be
complete and accurate.
18. PLEDGORS' OBLIGATIONS ABSOLUTE, ETC. The obligations of each
Pledgor under this Agreement shall be absolute and unconditional and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance or
occurrence whatsoever, including, without limitation: (i) any renewal,
extension, amendment or modification of or addition or supplement to or deletion
from any Secured Debt Agreement or any other instrument or agreement referred to
therein, or any assignment or transfer of any thereof; (ii) any waiver, consent,
extension, indulgence or other action or inaction under or in respect of any
such agreement or instrument including, without limitation, this Agreement;
(iii) any furnishing of any additional security to the Pledgee or its assignee
or any acceptance thereof or any release of any security by the Pledgee or its
assignee; (iv) any limitation on any party's liability or obligations under any
such instrument or agreement or any invalidity or unenforceability, in whole or
in part, of any such instrument or agreement or any term thereof; or (v) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to any Pledgor or any Subsidiary
of any Pledgor, or any action taken with respect to this Agreement by any
trustee or receiver, or by any court, in any such proceeding, whether or not
such Pledgor shall have notice or knowledge of any of the foregoing (it being
understood and agreed that the enforcement hereof may be limited by applicable
bankruptcy, insolvency, restructuring, moratorium or other similar laws
generally affecting creditors' rights and by equitable
Page 21
principles).
19. REGISTRATION, ETC. If at any time when the Pledgee shall
determine to exercise its right to sell all or any part of the Collateral
consisting of Stock, Limited Liability Company Interests or Partnership
Interests pursuant to Section 7 hereof, and the Collateral or the part thereof
to be sold shall not, for any reason whatsoever, be effectively registered under
the Securities Act, as then in effect, the Pledgee may, in its sole and absolute
discretion, sell such Collateral, as the case may be, or part thereof by private
sale in such manner and under such circumstances as the Pledgee may deem
necessary or advisable in order that such sale may legally be effected without
such registration. Without limiting the generality of the foregoing, in any such
event the Pledgee, in its sole and absolute discretion (i) may proceed to make
such private sale notwithstanding that a registration statement for the purpose
of registering such Collateral or part thereof shall have been filed under such
Securities Act, (ii) may approach and negotiate with a single possible purchaser
to effect such sale, and (iii) may restrict such sale to a purchaser who will
represent and agree that such purchaser is purchasing for its own account, for
investment, and not with a view to the distribution or sale of such Collateral
or part thereof. In the event of any such sale, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Collateral at a
price which the Pledgee, in its sole and absolute discretion, in good ▇▇▇▇▇
▇▇▇▇▇ reasonable under the circumstances, notwithstanding the possibility that a
substantially higher price might be realized if the sale were deferred until
after registration as aforesaid.
20. TERMINATION; RELEASE. (a) After the Termination Date, this
Agreement and the security interest created hereby shall terminate (provided
that all indemnities set forth herein including, without limitation, in Section
11 hereof shall survive any such termination), and the Pledgee, at the request
and expense of any Pledgor, will as promptly as practicable execute and deliver
to such Pledgor a proper instrument or instruments acknowledging the
satisfaction and termination of this Agreement, and will duly assign, transfer
and deliver to such Pledgor (without recourse and without any representation or
warranty) such of the Collateral as has not theretofore been sold or otherwise
applied or released pursuant to this Agreement or any other Credit Document,
together with any monies at the time held by the Pledgee or any of its
sub-agents hereunder. As used in this Agreement, "Termination Date" shall mean
the date upon which the Total Commitments under the Credit Agreement have been
terminated and all Interest Rate Protection Agreements and Other Hedging
Agreements entered into with any Other Creditors have been terminated, no Note
under the Credit Agreement is outstanding and all Loans thereunder have been
repaid in full and all Obligations then due and payable have been paid in full.
(b) In the event that any part of the Collateral is sold in
connection with a sale permitted by the Secured Debt Agreements (other than a
sale to any Pledgor or any Subsidiary thereof) or is otherwise released with the
consent of the Required Secured Creditors and the proceeds of such sale or sales
or from such release are applied in accordance with the provisions of the Credit
Agreement, to the extent required to be so applied, the Pledgee, at the request
and expense of the respective Pledgor, will duly assign, transfer and deliver to
such Pledgor (without
Page 22
recourse and without any representation or warranty) such of the Collateral (and
releases therefor) as is then being (or has been) so sold or released and has
not theretofore been released pursuant to this Agreement.
(c) At any time that a Pledgor desires to close a Concentration
Account, it shall, with the consent of the Pledgee, redirect the contents of
such Concentration Account, and all future deposits required to be made in such
Concentration Account, to Account No.: 4060944601, Account Name: GENERAL
MARITIME CORPORATION (the "Primary Concentration Account").
(d) At any time that a Pledgor desires that the Pledgee assign,
transfer and deliver Collateral (and releases therefor) as provided in Section
20(a) or (b) hereof, it shall deliver to the Pledgee a certificate signed by a
principal executive officer of such Pledgor stating that the release of the
respective Collateral is permitted pursuant to such Section 20(a) or (b).
(e) The Pledgee shall have no liability whatsoever to any other
Secured Creditor as a result of any release of Collateral by it in accordance
with this Section 20.
21. NOTICES, ETC. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including telexed, telegraphic or telecopier communication) and mailed,
telexed, telecopied or delivered: if to any Pledgor, at c/o General Maritime
Corporation, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as agent, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, with
copies to ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇,
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇; if to any Lender Creditor, at its address
specified opposite its name on Schedule II to the Credit Agreement; and if to
the Pledgee, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Hans Chr. Kjelsrud, Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇, Telecopier No.:
(▇▇▇) ▇▇▇-▇▇▇▇; or, as to any other Credit Party, at such other address as shall
be designated by such party in a written notice to the other parties hereto and,
as to each Other Creditor, at such other address as shall be designated by such
Secured Creditor in a written notice to the Borrower and the Administrative
Agent. All such notices and communications shall, (i) when mailed, be effective
three Business Days after being deposited in the mails, prepaid and properly
addressed for delivery, (ii) when sent by overnight courier, be effective one
Business Day after delivery to the overnight courier prepaid and properly
addressed for delivery on such next Business Day, or (iii) when sent by telex or
telecopier, be effective when sent by telex or telecopier, except that notices
and communications to the Pledgee or any Pledgor shall not be effective until
received by the Pledgee or such Pledgor, as the case may be.
22. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
except in writing duly signed by each Pledgor directly affected thereby and the
Pledgee (with the written consent of the Required Secured Creditors); PROVIDED,
that any change, waiver, modification or variance affecting the rights and
benefits of a single Class (as defined below) of Secured Creditors (and not all
Secured Creditors in a like or similar manner) shall also require the written
Page 23
consent of the Requisite Creditors (as defined below) of such affected Class.
For the purpose of this Agreement, the term "Class" shall mean each class of
Secured Creditors, I.E., whether (i) the Lender Creditors as holders of the
Credit Document Obligations or (ii) the Other Creditors as the holders of the
Other Obligations. For the purpose of this Agreement, the term "Requisite
Creditors" of any Class shall mean each of (i) with respect to the Credit
Document Obligations, the Required Lenders and (ii) with respect to the Other
Obligations, the holders of at least a majority of all obligations outstanding
from time to time under the Interest Rate Protection Agreements.
23. MISCELLANEOUS. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties hereto and its successors
and assigns, provided that no Pledgor may assign any of its rights or
obligations under this Agreement except in accordance with the terms of the
Secured Debt Agreements. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES (OTHER
THAN TITLE 14 OF ARTICLE 5 OF THE GENERAL OBLIGATIONS LAW). EACH PARTY TO THIS
AGREEMENT IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. The headings in this Agreement are for
purposes of reference only and shall not limit or define the meaning hereof.
This Agreement may be executed in any number of counterparts, each of which
shall be an original, but all of which shall constitute one instrument. In the
event that any provision of this Agreement shall prove to be invalid or
unenforceable, such provision shall be deemed to be severable from the other
provisions of this Agreement which shall remain binding on all parties hereto.
24. RECOURSE. This Agreement is made with full recourse to the
Pledgors and pursuant to and upon all the representations, warranties, covenants
and agreements on the part of the Pledgors contained herein and in the other
Secured Debt Agreements and otherwise in writing in connection herewith or
therewith.
25. ADDITIONAL PLEDGORS. It is understood and agreed that any
Subsidiary of the Borrower that is required to become a party to this Agreement
after the date hereof pursuant to the requirements of the Credit Agreement shall
automatically become a Pledgor hereunder by (x) executing a counterpart hereof
and/or a Subsidiary assumption agreement, in each case in form and substance
satisfactory to the Pledgee, (y) delivering supplements to Annexes A through F
hereto as are necessary to cause such Annexes to be complete and accurate with
respect to such additional Pledgor on such date and (z) taking all actions as
specified in Section 3 of this Agreement as would have been taken by such
Pledgor had it been an original party to this Agreement, in each case with all
documents required above to be delivered to the Pledgee and with all actions
required to be taken above to be taken to the reasonable satisfaction of the
Pledgee.
Page 24
26. RELEASE OF GUARANTORS. In the event any Pledgor which is a
Subsidiary of the Borrower is released from its obligations pursuant to the
Subsidiaries Guaranty, such Pledgor (so long as not the Borrower) shall be
released from this Agreement and this Agreement shall, as to such Pledgor only,
have no further force or effect.
* * * *
IN WITNESS WHEREOF, each Pledgor and the Pledgee have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
GENERAL MARITIME CORPORATION,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President, Chief Financial Officer
& Secretary
GENMAR CORPORATION
GENMAR SPIRIT LTD.
GENMAR STAR LTD.
GENMAR TRUST LTD.,
as Pledgors
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Title: President
GENMAR ENDURANCE LTD.
GENMAR TRADER LTD.
GENMAR LEONIDAS LTD.
GENMAR ▇▇▇▇▇▇ LTD.,
as Pledgors
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------------
Title: President
GENMAR CHALLENGER LTD.,
as a Pledgor
By
------------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
GENMAR CHAMPION LTD.,
as a Pledgor
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇▇
------------------------------------------------
Title: Vice President
Page 25
Accepted and Agreed to:
CHRISTIANIA BANK OG
KREDITKASSE ASA, NEW YORK BRANCH,
as Pledgee
By: /s/ Hans Chr. Kjelsrud
----------------------------
Title: Senior Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: Senior Vice President
ANNEX A
to
PLEDGE AND SECURITY AGREEMENT
EXACT LEGAL NAME OF EACH PLEDGOR AND JURISDICTION OF ORGANIZATION
NAME OF PLEDGOR JURISDICTION OF ORGANIZATION ORGANIZATIONAL ID NUMBER
General Maritime Corporation Republic of ▇▇▇▇▇▇▇▇ Islands N/A
Genmar Corporation Republic of ▇▇▇▇▇▇▇▇ Islands N/A
Genmar Champion Ltd. Republic of Liberia N/A
Genmar Spirit Ltd. Republic of Liberia N/A
Genmar Star Ltd. Republic of Liberia N/A
Genmar Trust Ltd. Republic of Liberia N/A
Genmar Challenger Ltd. Republic of Liberia N/A
Genmar Endurance Ltd. Republic of Liberia N/A
Genmar Trader Ltd. Republic of Liberia N/A
Genmar Leonidas Ltd. Republic of ▇▇▇▇▇▇▇▇ Islands N/A
Genmar ▇▇▇▇▇▇ Ltd. Republic of ▇▇▇▇▇▇▇▇ Islands N/A
ANNEX B
to
PLEDGE AND SECURITY AGREEMENT
LIST OF SUBSIDIARIES
1. GENERAL MARITIME CORPORATION
GMC Administration Ltd.
Genmar Ajax Corporation
Genmar Ajax II Corporation
Genmar Boss Corporation
Genmar Maritime I Corporation
Genmar Maritime II Corporation
Genmar ▇▇▇▇▇▇▇ Corporation
Genmar Pacific Corporation
Ajax Limited Partnership
Ajax II, L.P.
Boss, L.P.
General Maritime I, L.P.
General Maritime II, L.P.
▇▇▇▇▇▇▇, L.P.
Pacific Tankship, L.P.
Genmar Agamemnon Limited
Genmar Ajax Limited
Genmar ▇▇▇▇▇▇▇▇▇▇▇ Limited
Genmar Minotaur Limited
Genmar ▇▇▇▇▇▇▇ Ltd.
Genmar Macedon Ltd.
Genmar Spartiate Ltd.
Genmar Zoe Ltd.
Boss Ltd.
Stavanger Sun Ltd.
Alta Ltd.
Nord Ltd.
▇▇▇▇▇▇▇ Ltd.
Pacific Tankship Ltd.
Genmar Alexandra Ltd.
Genmar ▇▇▇▇▇▇ Ltd.
Genmar Pericles Ltd.
Genmar Kentucky Ltd
Genmar West Virginia Ltd
Genmar Malta Ltd.
Prince Ltd.
page 2
Genmar Champion Ltd.
Genmar Spirit Ltd.
Genmar Star Ltd.
Genmar Trust Ltd.
Genmar Challenger Ltd.
Genmar Endurance Ltd.
Genmar Trader Ltd.
Genmar Leonidas Ltd.
Genmar ▇▇▇▇▇▇ Ltd.
2. GENMAR CORPORATION
Genmar Champion Ltd.
Genmar Spirit Ltd.
Genmar Star Ltd.
Genmar Trust Ltd.
Genmar Challenger Ltd.
Genmar Endurance Ltd.
Genmar Trader Ltd.
Genmar Leonidas Ltd.
Genmar ▇▇▇▇▇▇ Ltd.
3. GENMAR CHAMPION LTD.
None
4. GENMAR SPIRIT LTD.
None
5. GENMAR STAR LTD.
None
6. GENMAR TRUST LTD.
None
7. GENMAR CHALLENGER LTD.
None
8. GENMAR ENDURANCE LTD.
None
9. GENMAR TRADER LTD.
None
10. GENMAR LEONIDAS LTD.
page 3
None
11. GENMAR ▇▇▇▇▇▇ LTD.
None
ANNEX C
to
PLEDGE AND SECURITY AGREEMENT
LIST OF STOCK
1. GENERAL MARITIME CORPORATION
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
Genmar Corporation Common Stock 50 2 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
2. GENMAR CORPORATION
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
Genmar Champion Ltd. Ordinary 500 1 100% (i)
Shares
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Spirit Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Star Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Trust Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Challenger Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Endurance Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Ordinary
Genmar Trader Ltd. Shares 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Genmar Leonidas Ltd. Common Stock 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
Genmar ▇▇▇▇▇▇ Ltd. Common Stock 500 1 100% (i)
-------------------------------------------------------------------------------------------------------------------------------
3. GENMAR CHAMPION LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
4. GENMAR SPIRIT LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
page 2
5. GENMAR STAR LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
6. GENMAR TRUST LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
7. GENMAR CHALLENGER LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
8. GENMAR ENDURANCE LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
9. GENMAR TRADER LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
10. GENMAR LEONIDAS LTD.
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
11. GENMAR ▇▇▇▇▇▇ LTD.
page 3
-------------------------------------------------------------------------------------------------------------------------------
NAME OF ISSUING CORPORATION TYPE OF NO. OF SHARES CERTIFICATE PERCENTAGE SUB-CLAUSE OF SECTION
SHARES NO. OWNED 3.2(A) OF PLEDGE AND
SECURITY AGREEMENT
-------------------------------------------------------------------------------------------------------------------------------
None
-------------------------------------------------------------------------------------------------------------------------------
ANNEX D
to
PLEDGE AND SECURITY AGREEMENT
LIST OF LIMITED LIABILITY COMPANY INTERESTS
NAME OF TYPE OF SUB-CLAUSE OF
LIMITED LIABILITY INTEREST PERCENTAGE OWNED SECTION 3.2(A) OF PLEDGE
COMPANY AND SECURITY AGREEMENT
None
ANNEX E
to
PLEDGE AND SECURITY AGREEMENT
LIST OF PARTNERSHIP INTERESTS
PLEDGOR NAME OF TYPE OF PERCENTAGE SUB-CLAUSE OF
PARTNERSHIP INTEREST OWNED SECTION 3.2(A) OF PLEDGE
AND SECURITY AGREEMENT
None
ANNEX F
to
PLEDGE AGREEMENT
LIST OF CHIEF EXECUTIVE OFFICES
NAME OF PLEDGOR ADDRESS
--------------- -------
General Maritime Corporation ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Genmar Corporation Trust Company Complex,
Ajeltake Road, Ajeltake Island
Majoro, ▇▇▇▇▇▇▇▇ Islands MH96960
Genmar Champion Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Spirit Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Star Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Trust Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Challenger Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 Monrovia ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Trader Ltd. The LISCR Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
1000 ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Leonidas Ltd. Trust Company Complex,
Ajeltake Road, Ajeltake Island
Majoro, ▇▇▇▇▇▇▇▇ Islands MH96960
Genmar ▇▇▇▇▇▇ Ltd. Trust Company Complex,
Ajeltake Road, Ajeltake Island
Majoro, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ANNEX G
to
PLEDGE AGREEMENT
FORM OF AGREEMENT REGARDING UNCERTIFICATED SECURITIES, LIMITED LIABILITY
COMPANY INTERESTS AND PARTNERSHIP INTERESTS
AGREEMENT (as amended, modified or supplemented from time to time,
this "Agreement"), dated as of _______ __, ____, among the undersigned pledgor
(the "Pledgor"), Christiania Bank og Kreditkasse ASA,
New York Branch, not in
its individual capacity but solely as collateral agent (the "Pledgee"), and
__________, as the issuer of the Uncertificated Securities, Limited Liability
Company Interests and/or Partnership Interests (each as defined below) (the
"Issuer").
W I T N E S S E T H :
WHEREAS, the Pledgor, certain of its affiliates and the Pledgee have
entered into a Pledge Agreement, dated as of June 27, 2001 (as amended, amended
and restated, modified or supplemented from time to time, the "Pledge
Agreement"), under which, among other things, in order to secure the payment of
the Obligations (as defined in the Pledge Agreement), the Pledgor will pledge to
the Pledgee for the benefit of the Secured Creditors (as defined in the Pledge
Agreement), and grant a security interest in favor of the Pledgee for the
benefit of the Secured Creditors in, all of the right, title and interest of the
Pledgor in and to any and all (1) "uncertificated securities" (as defined in
Section 8-102(a)(18) of the Uniform Commercial Code, as adopted in the State of
New York) ("Uncertificated Securities"), (2) Partnership Interests (as defined
in the Pledge Agreement) and (3) Limited Liability Company Interests (as defined
in the Pledge Agreement), in each case issued from time to time by the Issuer,
whether now existing or hereafter from time to time acquired by the Pledgor
(with all of such Uncertificated Securities, Partnership Interests and Limited
Liability Company Interests being herein collectively called the "Issuer Pledged
Interests"); and
WHEREAS, the Pledgor desires the Issuer to enter into this Agreement
in order to protect the security interest of the Pledgee under the Pledge
Agreement in the Issuer Pledged Interests, to vest in the Pledgee control of the
Issuer Pledge Interests and to provide for the rights of the parties under this
Agreement;
NOW THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. The Pledgor hereby irrevocably authorizes and directs the Issuer,
and the Issuer hereby agrees, to comply with any and all instructions and orders
originated by the Pledgee (and its successors and assigns) regarding any and all
of the Issuer Pledged Interests without the
page 2
further consent by the registered owner (including the Pledgor), and, after
receiving a notice from the Pledgee stating that an "Event of Default" has
occurred and is continuing, not to comply with any instructions or orders
regarding any or all of the Issuer Pledged Interests originated by any person or
entity other than the Pledgee (and its successors and assigns) or a court of
competent jurisdiction.
2. The Issuer hereby certifies that (i) no notice of any security
interest, lien or other encumbrance or claim affecting the Issuer Pledged
Interests (other than the security interest of the Pledgee) has been received by
it, and (ii) the security interest of the Pledgee in the Issuer Pledged
Interests has been registered in the books and records of the Issuer.
3. The Issuer hereby represents and warrants that (i) the pledge by
the Pledgor of, and the granting by the Pledgor of a security interest in, the
Issuer Pledged Interests to the Pledgee, for the benefit of the Secured
Creditors, does not violate the charter, by-laws, partnership agreement,
membership agreement or any other agreement governing the Issuer or the Issuer
Pledged Interests, and (ii) the Issuer Pledged Interests are fully paid and
nonassessable.
4. All notices, statements of accounts, reports, prospectuses,
financial statements and other communications to be sent to the Pledgor by the
Issuer in respect of the Issuer will also be sent to the Pledgee at the
following address:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Hans Chr. Kjelsrud
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
5. Until the Pledgee shall have delivered written notice to the Issuer
that all of the Obligations have been paid in full and this Agreement is
terminated, the Issuer will, upon receiving notice from the Pledgee stating that
an "Event of Default" has occurred and is continuing, send any and all
redemptions, distributions, interest or other payments in respect of the Issuer
Pledged Interests from the Issuer for the account of the Pledgor only by wire
transfers to such account as the Pledgee shall instruct.
6. Except as expressly provided otherwise in Sections 4 and 5, all
notices, shall be sent or delivered by mail, telegraph, telex, telecopy, cable
or overnight courier service and all such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or courier, as the case may be, or sent by telex or
telecopier, except that notices and communications to the Pledgee, the Pledgor
or the Issuer shall not be effective until received by the Pledgee, the Pledgor
or the Issuer, as the case may be. All notices and other communications shall be
in writing and addressed as follows:
(a) if to any Pledgor, at:
page 3
c/o General Maritime Corporation, as agent
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: The Chief Executive Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Pledgee, at:
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Hans Chr. Kjelsrud
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
------------------------------
(c) if to the Issuer, at:
------------------------------
------------------------------
------------------------------
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
7. This Agreement shall be binding upon the successors and assigns
of the Pledgor and the Issuer and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall constitute one instrument. In the event that any provision of
this Agreement shall prove to be invalid or unenforceable, such provision shall
be deemed to be severable from the other provisions of this Agreement which
shall remain binding on all parties hereto. None of the terms and conditions of
this Agreement may be changed, waived, modified or varied in the manner
whatsoever except in writing signed by the Pledgee, the Issuer and the Pledgor.
page 4
8. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its principles of
conflict of laws.
* * *
page 5
IN WITNESS WHEREOF, the Pledgor, the Pledgee and the Issuer have caused this
Agreement to be executed by their duly elected officers duly authorized as of
the date first above written.
[_________________________],
as Pledgor
By_______________________________________
Name:
Title:
CHRISTIANIA BANK OG,
KREDITKASSE ASA, NEW YORK BRANCH,
not in its individual capacity but
solely as Pledgee
By_______________________________________
Name:
Title:
By_______________________________________
Name:
Title:
[_________________________],
the Issuer
By_______________________________________
Name:
Title: