AGREEMENT OF UNDISCLOSED PLEDGE between NEW SKIES SATELLITES B.V. as Pledgor and
Exhibit 10.7
AGREEMENT OF UNDISCLOSED PLEDGE
between
NEW SKIES SATELLITES B.V.
as Pledgor
and
DEUTSCHE BANK AG, New York Branch
as Pledgee
Third Party Accounts Receivable
▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
INDEX
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
||
|
|
|
ANNEX 1 |
LIST OF ACCOUNTS RECEIVABLE |
|
|
ANNEX 2 |
FORM OF DEFAULT NOTICE |
|
|
ANNEX 3 |
FORM OF SUPPLEMENTAL AGREEMENT |
|
|
ANNEX 4 |
FORM OF THIRD PARTY NOTICE |
|
2
THIS AGREEMENT OF UNDISCLOSED PLEDGE OF THIRD PARTY ACCOUNTS RECEIVABLE IS DATED 2 NOVEMBER 2004
BETWEEN:
1 New Skies Satellites B.V., a private company with limited liability (besloten vennootschap), incorporated and existing under the laws of The Netherlands, with corporate seat in Amsterdam, The Netherlands, having its registered address at ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, registered with the Commercial Register under number 30146277 (the “Pledgor”); and
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ Branch, with its principal place of business at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, acting as Collateral Agent pro se in its capacity as creditor under the Parallel Debt Obligations (as defined below) and also for the Secured Parties, as such term is defined in the Credit Agreement (as defined below), pursuant to the terms of the Credit Agreement (the “Pledgee”).
WHEREAS:
(a) on 2 November 2004, amongst others, New Skies Holding B.V., the Pledgor, the Lenders party thereto, the Pledgee (as Administrative Agent and as Collateral Agent for the Secured Parties), ABN AMRO Bank N.V. (as Syndication Agent) and Deutsche Bank Securities Inc. and ABN AMRO Incorporated (as Joint Lead Arrangers) entered into a USD 535,000,000 Credit Agreement (the “Credit Agreement”);
(b) on the terms and subject to the conditions set forth in the Credit Agreement the Lenders are willing to extend senior secured credit to the Borrowers (as defined in the Credit Agreement); and
(c) as a condition to the (continuing) availability of such credit and in order to secure and provide for the payment and discharge of, inter alia, the Parallel Debt Obligations (as defined below), the Pledgor and the Pledgee have agreed that the Pledgor shall enter into this Agreement and Deed of Pledge.
IT IS HEREBY AGREED AS FOLLOWS:
1 DEFINITIONS AND INTERPRETATION
1.1 All capitalised terms used in this Agreement and Deed of Undisclosed Pledge of Third Party Accounts Receivable (the “Agreement”), including the recitals, and not otherwise defined herein shall have the meaning assigned to them in the Credit Agreement.
1.2 a. Headings are for convenience of reference only.
3
b. Where the context so permits, the singular includes the plural and vice versa.
c. Save where the contrary is indicated, any reference in this Agreement to the parties or a party to this Agreement shall be construed so as to include its or their respective successors, transferees and assigns from time to time and any successor of such a successor, transferee or assign in accordance with their respective interests.
d. A “Clause” and a “subclause” shall, subject to any indication to the contrary, be construed as a reference to a clause and subclause hereof.
e. References to the Credit Agreement, the Facility, the (other) Loan Documents, this Agreement, the Swap Agreements or any other agreement or document shall, where applicable, be deemed to be references to such Credit Agreement, the Facility, the (other) Loan Documents, this Agreement, the Swap Agreements or such other agreement or document as the same may have been, or may from time to time be, extended, prolonged, amended, restated, supplemented, renewed or novated, as persons may accede thereto as a party or withdraw therefrom as a party in part or in whole or be released thereunder in part or in whole, and as facilities and financial services are or may from time to time be granted, extended, prolonged, increased, reduced, cancelled, withdrawn, amended, restated, supplemented, renewed or novated thereunder.
f. A statute or statutory provision shall be construed as a reference to such statute or statutory provision as the same may have been, or may from time to time be, amended or re-enacted and all instruments, orders, plans, regulations, by-laws, permissions and directions at any time made thereunder.
g. References to the Dutch Civil Code are references to het Nederlands Burgerlijk Wetboek, references to the Dutch Bankruptcy Act are references to de Nederlandse Faillissementswet.
1.3 In this Agreement the following words and expressions shall have the following meaning:
“Accounts Receivable” means any and all accounts receivable (vorderingen op naam) of the Pledgor against any Third Party (as defined below), including but not limited to the accounts receivable as listed in Annex 1 hereto, whether now existing or hereafter created or arising , in each case if or to the extent that these rights are capable of being pledged under the laws of the Netherlands at the time of execution of this Agreement or any Supplemental Agreement (as defined below), as the case may be;
“Agreement of Disclosed Pledge of Insurance Receivables” means the Agreement of Disclosed Pledge of Insurance Receivables dated on or about the date hereof between the Pledgor and the Pledgee;
“Agreement of Disclosed Pledge of Intercompany Accounts Receivable” means the Agreement of Disclosed Pledge of Intercompany Accounts Receivable dated on or about the date hereof between the Pledgor and the Pledgee;
4
“Attorney-in-Fact” has the meaning ascribed thereto in Clause 2.6 below;
“Default Notice” means the default notice substantially in the form of Annex 2 hereto;
“Equivalent Sum” has the meaning ascribed thereto in Clause 6.3 below;
“Original Payment” has the meaning ascribed thereto in Clause 6.3 below;
“Parallel Debt Obligations” has the meaning ascribed thereto in section 9.19 of the Credit Agreement;
“Pledge List” has the meaning ascribed thereto in Clause 2.3 below;
“Pledged Collateral” means the Accounts Receivable;
“Power of Attorney” has the meaning ascribed thereto in Clause 2.6 below;
“Rights of Pledge” means the rights of pledge created under this Agreement, which includes, for the avoidance of doubt, any and all pledges created pursuant to any Supplemental Agreement (as defined below);
“Secured Obligations” means the Parallel Debt Obligations (of each of the Loan Parties);
“Security Period” means the period beginning on the date hereof and ending on the earlier date upon which (a) all Secured Obligations have been irrevocably paid and discharged, or have ceased to exist, no Swap Agreements are outstanding and all Commitments under the Credit Agreement have been terminated and (b) all Rights of Pledge have been released and discharged by the Pledgee in accordance with Clause 8.2 below;
“Supplemental Agreement” means an agreement of pledge of third party accounts receivable substantially in the form of the supplemental agreement as attached hereto as Annex 3; and
“Third Parties” means any debtor, customer, client and/or other person purchasing and/or receiving assets or services from the Pledgor, with the exception of (i) the Debtors as defined in the Agreement of Disclosed Pledge of Intercompany Accounts Receivable and (ii) the Insurance Companies as defined in the Agreement of Disclosed Pledge of Insurance Receivables.
2 PLEDGE
2.1 The Pledgor hereby agrees with the Pledgee and hereby undertakes that the Pledgor shall grant to the Pledgee the rights of pledge purported to be granted under and pursuant to this Agreement.
5
2.2 As security for the payment and discharge in full, when due (whether at stated maturity, by acceleration or otherwise), of the Secured Obligations, the Pledgor hereby grants, for the duration of the Security Period, to the Pledgee a first ranking undisclosed right of pledge (stil pandrecht eerste in rang), over all Accounts Receivable and, to the extent it concerns future Accounts Receivable, hereby grants in advance (verpandt bij voorbaat) to the Pledgee a first ranking right of pledge over such future Accounts Receivable and the Pledgee hereby accepts such rights of pledge.
2.3 Upon the occurrence of an Event of Default and upon the Issuance of a Default Notice the Pledgor shall send to the Pledgee, at the Pledgee’s first request (acting reasonably), a computer print out of the books of the Pledgor (each such computer print out referred to as a “Pledge List”) stating, inter alia, the names of the Third Parties, their contact details and the outstanding amounts of the Accounts Receivable.
2.4 The Pledgor irrevocably and unconditionally undertakes to take such action (including the execution of documents to be made up in form and substance satisfactory to the Pledgee) as and when the Pledgee deems necessary in its reasonable opinion from time to time to create, perfect and maintain a valid and enforceable first priority right of pledge in favour of the Pledgee with respect to the Accounts Receivable, including the registration and filing of this Agreement and any Supplemental Agreement with the Belastingdienst Amsterdam Afdeling Registratie Unit no later than 10 business days after the date of this Agreement or the date of such Supplemental Agreement, and the payment of any stamp, registration, notary or other taxes and fees in connection therewith. As soon as reasonably practicable after such registration or filing, the Pledgee will be provided with a copy of this Agreement or a Supplemental Agreement, as the case may be, together with proof of registration or filing, as the case may be.
2.5 In addition to the undertakings contained in Clause 2.4 above, the Pledgor irrevocably and unconditionally undertakes to pledge to the Pledgee on a quarterly basis any and all Accounts Receivable it will acquire after the date hereof. To the extent necessary, in the reasonable opinion of the Pledgee, to pledge any and all Accounts Receivable acquired by the Pledgor after the date hereof, The Pledgor and the Pledgee shall enter into a Supplemental Agreement within 30 days after the last day of each quarter as of the date of this Agreement.
2.6 The Pledgee hereby grants to the Pledgor (the “Attorney-in-Fact”) a power of attorney (the “Power of Attorney”) which is revocable upon written notice, to represent the Pledgee and to sign and execute on behalf of and in the name of the Pledgee any Supplemental Agreement in the form furnished by or on behalf of the Pledgee, between the Pledgor and the Pledgee, and materially in the form as attached hereto as Annex 3. The parties agree that section 3:68 (Selbsteintritt) of the Dutch Civil Code will not apply and to the extent necessary, the Pledgee hereby waives any rights it may have under section 3:68 of the Dutch Civil Code, which waiver the Pledgor hereby accepts. This Power of Attorney is to be construed and interpreted
6
as a limited power of attorney. Nothing contained in this Power of Attorney shall be construed to grant the Attorney-in-Fact the power to initiate or defend any suit, litigation or proceeding in the name of the Pledgee.
2.7 Each of the Rights of Pledge is one and indivisible (één en ondeelbaar). Partial fulfilment of the Secured Obligations shall not extinguish the Rights of Pledge proportionally.
3 ACCESSORY RIGHTS AND ANCILLARY RIGHTS
3.1 The Rights of Pledge include all accessory rights (afhankelijke rechten) and all ancillary rights (nevenrechten) attached to the Accounts Receivable.
4 REPRESENTATIONS AND WARRANTIES
4.1 The Pledgor represents and warrants that the following is true and correct on the date of this Agreement:
(i) the Pledgor holds full and exclusive title to the Accounts Receivable existing at the time the representation is made and is authorised (beschikkingsbevoegd) to create a right of pledge thereover; and
(ii) except for the Rights of Pledge created pursuant to this Agreement and any encumbrances or liens permitted by the Credit Agreement, the Accounts Receivable have not been encumbered with any attachment (beslag) or any rights in rem (beperkte rechten), none of the Accounts Receivable have been assigned or pledged in advance and all Accounts Receivable can be pledged to the Pledgee.
5 UNDERTAKINGS
5.1 Except to the extent permitted pursuant to the Credit Agreement, the Pledgor undertakes not to waive without the prior written consent of the Pledgee (not to be unreasonably withheld or delayed), any accessory rights (afhankelijke rechten) or ancillary rights (nevenrechten) attached to the Accounts Receivable and in general not to perform any acts which result or could result in a material reduction of the value of the Accounts Receivable.
5.2 Except to the extent permitted pursuant to the Credit Agreement, the Pledgor shall not, without the prior written consent of the Pledgee (not to be unreasonably withheld or delayed), transfer or further pledge or otherwise encumber any of the Accounts Receivable, or agree to a court
7
settlement or an out-of-court settlement (gerechtelijk or buitengerechtelijk akkoord) in respect of the Accounts Receivable.
5.3 The Pledgor shall, at the Pledgee’s first request, provide in the English language the Pledgee all information and supporting documentation relating to the Accounts Receivable and allow the Pledgee to inspect its administrative records during office hours, all of the foregoing to the extent required by the Pledgee (acting reasonably) for the purpose of this Agreement.
5.4 The Pledgor shall forthwith inform the Pledgee of any attachment (beslag) over any of the Accounts Receivable with an individual or joint value of EUR 50,000 or more. The Pledgor shall:
(i) send the Pledgee a copy of the relevant attachment or seizure documentation as well as all other documents required under applicable law for challenging the attachment or seizure (if and to the extent possible);
(ii) notify the third party or the court process server acting on behalf of such third party in writing of the Pledgee’s interest over the Accounts Receivable; and
(iii) take such measures as may reasonably be required to protect the Pledgee’s interest over the Accounts Receivable.
5.5 The Pledgor covenants for the benefit of the Pledgee throughout the Security Period to co-operate with the Pledgee in the collection and recovery of the Accounts Receivable and to render all reasonable assistance as may be required pursuant to any exchange regulations and/or foreign statutory rules or other rules, including the taking of any legal action that the Pledgee may deem necessary in connection therewith after the issuance of a Default Notice to it.
5.6 In addition and without prejudice to the obligations of the Pledgor pursuant to Clauses 5.3 and 5.4 above, the Pledgor shall notify the Pledgee promptly of any event or circumstance which could reasonably be of importance to the Pledgee with a view to the preservation and exercise of the Pledgee’s rights under or pursuant to this Agreement.
6 CONSENT
6.1 In accordance with section 3:246 of the Dutch Civil Code, the Pledgor is entitled to demand the performance judicially and extra-judicially of and to receive payment with respect to, the Accounts Receivable until the Third Parties under the Accounts Receivable have been notified
8
of the Rights of Pledge. Upon the issuance of the Default Notice to the Pledgor, the Pledgee is irrevocably authorised to notify the Third Parties under the Accounts Receivable of the Rights of Pledge by sending a notification substantially in the form of Annex 4 hereto. The Pledgor shall give its prompt and full co-operation in connection herewith and it shall immediately send to the Pledgee a Pledge List as stipulated in Clause 2.3 above. Upon such notification of the Third Parties, the Pledgee shall be entitled to demand the performance judicially and extra-judicially of and to receive payment with respect to, the Accounts Receivable and to exercise the other rights granted to a pledgee under section 3:246 of the Dutch Civil Code.
6.2 If the Pledgee has the right to demand the performance judicially and extra-judicially of and to receive payment with respect to, an Account Receivable pursuant to Clause 6.1 above, it shall also have the right to enter into court settlement or out-of-court settlement (gerechtelijk of buitengerechtelijk akkoord) regarding such Accounts Receivable with the Third Party concerned.
6.3 If a Third Party makes any payment (the “Original Payment”) to the Pledgor in respect of an Accounts Receivable after it has been notified by the Pledgee that the authorisation granted pursuant to Clause 6.1 above has terminated, the Pledgor shall (to the extent permitted by law) immediately transfer to the Pledgee a sum equal to the amount paid by the Third Party (the “Equivalent Sum”) to the Pledgor, without prejudice to any remedy which the Pledgee may have against the Third Party concerned, provided, however, that to the extent the Pledgee has received payment of any part of the Equivalent Sum from the Pledgor, the Third Party will as a result be released for such part of its payment obligation towards the Pledgee in respect of the Original Payment.
7 ENFORCEMENT AND POWER OF ATTORNEY
7.1 Without prejudice to any other right or remedy available to the Pledgee, the Pledgee, by issuing the Default Notice upon the occurrence of an Event of Default to the Pledgor, may declare the Rights of Pledge, immediately enforceable against the Pledgor without any (further) notice of default being required and the Pledgee may immediately exercise in respect of any and all of the Accounts Receivable any and all of its rights and powers set out in this Agreement (subject to restrictions following from mandatory provisions of law) irrespective of whether the Pledgee or any of the Secured Parties shall have proceeded against or claimed payment from any party liable for any of the Corresponding Obligations.
7.2 To the extent necessary, the Pledgor agrees for the benefit of the Pledgee that upon a default in the performance of any of the Corresponding Obligations, it shall be deemed to be in default (verzuim) in respect of the Secured Obligations within the meaning of section 3:248 (1) and 6:81 of the Dutch Civil Code without any further notice or action being necessary. For the avoidance of doubt, a default in the performance of the Corresponding Obligations shall have
9
occurred, inter alia, upon the taking by the Administrative Agent of any of the actions referred to in the final paragraph of section 7.01 of the Credit Agreement.
7.3 To the fullest extent permitted by law, the Pledgor waives (which waiver the Pledgee hereby accepts) any right it may have (i) pursuant to section 3:234 of the Dutch Civil Code to demand, in the event that the Pledgee enforces the Rights of Pledge, that the Pledgee shall also enforce any of the security interests (zekerheidsrechten) granted by any other Loan Parties and (ii) of requiring the Pledgee to firstly proceed against or claim payment from any person or entity or enforce any guarantee or security granted by any other person or entity before enforcing the Rights of Pledge and/or any other rights under this Agreement.
7.4 The Pledgor will not be entitled to request the summary proceedings judge (voorzieningenrechter) of the district court to order that (i) the Accounts Receivable shall be sold in a manner deviating from the provision of section 3:250 of the Dutch Civil Code or (ii) it is entitled to exercise its rights with respect to the Accounts Receivable pursuant to section 3:246 (4) of the Dutch Civil Code.
7.5 In the event that the Pledgee forecloses or intends to foreclose the Rights of Pledge, it will not be obliged to give notice (thereof) (as provided in section 3:249 and section 3:252 of the Dutch Civil Code) to the Pledgor or any person having the benefit of an encumbrance on Accounts Receivable comprised in such Rights of Pledge (save as may be otherwise provided in the Credit Agreement).
7.6 The Pledgee shall apply the proceeds of the Accounts Receivable and the foreclosure of the Rights of Pledge or any of them in satisfaction of the Secured Obligations and/or the Corresponding Obligations, in each case in accordance with Section 9.23 of the Credit Agreement and applicable provisions of Dutch law.
7.7 In addition to the undertakings contained in Clause 2.4 above, the Pledgor shall at any time, upon written request of the Pledgee after the issuance of a Default Notice to the Pledgor, execute and cause to be filed, at the Pledgor’s expense, such documents and instruments, and do such other acts and things, as the Pledgee may reasonably deem desirable in obtaining the full benefits of this Agreement (including the protection and preservation of its rights) and of the rights and powers granted hereunder or granted to a pledgee under the laws of the Netherlands.
7.8 The Pledgor hereby grants to the Pledgee (and any of its delegates) an irrevocable power of attorney in accordance with section 3:74 (1) of the Dutch Civil Code to, following the issuance of a Default Notice to it and during the continuance of an Event of Default, perform all acts and execute all documents in order to perfect or implement this Agreement on its behalf, and to take all actions which are necessary for the Pledgee (and any of its delegates) to create,
10
maintain, protect, preserve and exercise its rights under this Agreement (acting reasonably). The parties agree that section 3:68 (Selbsteintritt) of the Dutch Civil Code will not apply and to the extent necessary, the Pledgor hereby waives any rights it may have under section 3:68 of the Dutch Civil Code, which waiver the Pledgee hereby accepts.
8 TERMINATION
8.1 The Pledgee is entitled to terminate (opzeggen) in whole or in part any Right of Pledge and the contractual arrangements set forth herein. Notice of termination must be given in writing by the Pledgee to the Pledgor.
8.2 The Rights of Pledge or any of them shall terminate by operation of law when all Secured Obligations have been unconditionally and irrevocably paid and discharged in full, no Letters of Credit or Swap Agreements are outstanding and all Commitments under the Credit Agreement have terminated. At the request of the Pledgor, the Pledgee shall confirm such termination in writing and will execute all documents reasonably requested by the Pledgor in relation thereto (at the expense of the Pledgor).
9 ASSIGNMENT AND INFORMATION
9.1 Subject to the relevant provisions of the Credit Agreement, the Pledgee (but not, for the avoidance of doubt, the Pledgor) shall be entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any assignee and/or transferee.
9.2 The Pledgor hereby in advance gives its irrevocable consent to (geeft toestemming bij voorbaat) within the meaning of section 6:156 of the Dutch Civil Code and hereby in advance irrevocably co-operates with (verleent bij voorbaat medewerking aan), within the meaning of sections 6:159 and 6:156 of the Dutch Civil Code, any such assignment and/or transfer executed in accordance with the relevant provisions of the Credit Agreement, including by means of an assumption of debt (schuldoverneming) or transfer of agreement (contractsoverneming), as the case may be, hereunder.
9.3 The Pledgee shall be entitled to impart any information concerning the Pledgor to any successor or proposed successor, subject to the confidentiality provisions of the Credit Agreement.
11
10 RECORDS OF PLEDGEE
10.1 Subject to proof to the contrary, the records of the Pledgee shall be conclusive evidence (dwingend bewijs) of the existence and amount of the Secured Obligations and the Corresponding Obligations, subject to and in accordance with the terms of the Credit Agreement.
11 COSTS
Subject to any provision to the contrary herein, all costs incurred in connection with the creation of the Rights of Pledge and the performance by the parties of their rights and obligations under this Agreement and the Supplemental Agreements shall be for the account of the persons or entities designated in section 9.05 of the Credit Agreement and shall be settled in accordance therewith.
12 NOTICES
Any notices and other communications under or in connection with this Agreement shall be given in accordance with section 9.01 of the Credit Agreement.
13 SUSPENSION OF RIGHTS AND INDEMNITY
Throughout the Security Period, the Pledgor shall not:
(i) receive, claim or have the benefit of any payment, distribution or security from or on account of any Loan Party under any indemnity or otherwise or exercise its rights of defence, suspension, retention, set off or counter claim as against any Loan Party;
(ii) take recourse (verhaal) or take any other step to enforce any right against any Loan Party or their respective assets; and
(iii) claim or vote in competition with the Pledgee or any of the other Secured Parties in the bankruptcy, suspension of payment or liquidation or analogous circumstance of any Loan Party,
except in each case, in such manner and upon such terms as the Pledgee, acting reasonably, may require. Any payment, distribution or security received by the Pledgor contrary to the provisions of this Agreement shall be received and held by the Pledgor as custodian (bewaarnemer) (or, if possible under applicable law, on trust) for the benefit of the Pledgee and the Secured Parties and shall, pending payment or transfer to the Pledgee, to the extent legally possible, be segregated from the other assets of the Pledgor and shall be forthwith paid
12
over or transferred to the Pledgee. If notwithstanding the above the Pledgor exercises any right of defence, suspension, retention, set off or counter claim in respect of any amount, it shall forthwith pay an amount equal to such amount to the Pledgee.
14 LIABILITY
The Pledgee shall not be liable to the Pledgor under or pursuant to this Agreement except for its wilful misconduct (opzet) or gross negligence (grove ▇▇▇▇▇▇).
15 LIMITATION; WAIVER
15.1 The Pledgor waives, to the fullest extent permitted by law, its right (i) to dissolve this Agreement, pursuant to section 6:265 of the Dutch Civil Code or on any other ground or (ii) to avoid this Agreement, including but not limited to error (dwaling), which waiver the Pledgee hereby accepts.
16 SECURITY INTEREST ABSOLUTE
16.1 All rights of the Pledgee, the Rights of Pledge and all obligations of the Pledgor hereunder shall be absolute and unconditional irrespective of:
(i) any change in the time, manner or place of payment of the Parallel Debt Obligations and/or the Corresponding Obligations or any change of or amendment to any other Loan Document and any other document related thereto, or any other agreement or instrument relating to any of them; or
(ii) any exchange, release or non perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any other collateral for the Parallel Debt Obligations and/or the Corresponding Obligations.
17 AMENDMENT OF THIS AGREEMENT
17.1 This Agreement may only be amended by a written agreement between the Pledgor and the Pledgee (with the consent of the Required Secured Parties).
13
18 GOVERNING LAW AND JURISDICTION
18.1 This Agreement shall be governed by and construed in accordance with the laws of The Netherlands.
18.2 The Pledgor consents to the exclusive jurisdiction of the courts of Amsterdam, The Netherlands. The Pledgor hereby waives any objection that it may now or hereafter have to the jurisdiction of such courts, which waiver the Pledgee hereby accepts. This Clause is for the benefit of the Pledgee only and shall not limit its right to bring proceedings against the Pledgor in connection with this Agreement or any other Loan Document in any other court of competent jurisdiction or (to the extent allowed by law) concurrently in more than one jurisdiction.
19 SEVERABILITY OF PROVISIONS
19.1 Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
19.2 The parties hereto agree that they will negotiate in good faith to replace any provision hereof held invalid, illegal or unenforceable as set out in Clause 19.1 above with a valid provision which is as similar as possible in substance to the invalid, illegal or unenforceable provision.
20 REMEDIES AND PREVALENCE
20.1 The rights and remedies of the Pledgee herein, and the obligations, representations and warranties of the Pledgor herein, are cumulative and are not exclusive of any rights or remedies of the Pledgee, or obligations, representations or warranties of the Pledgor, conferred or imposed by law, the Credit Agreement or any other Loan Document.
20.2 To the extent there is a conflict between the provisions of the Credit Agreement and the provisions of this Agreement, the provisions of the Credit Agreement shall prevail (but only to the extent that the validity and enforceability of the pledges created pursuant this Agreement and the powers of attorney given pursuant this Agreement are not affected as a consequence).
21 REGULATORY MATTERS
21.1 Notwithstanding anything to the contrary contained in this Agreement or any of the other Security Documents, the rights of the Pledgee and the other Secured Parties hereunder and under the other Security Documents are subject to all applicable rules and regulations of the
14
FCC and other Governmental Authorities with jurisdiction over the Pledgor and its subsidiaries. Without limiting the foregoing, the Pledgee will not take any action (or authorize any other party to take any action on its behalf) which would constitute or result in an assignment or change of control of any governmental permits, licenses, or other authorizations, including without limitation those issued by the FCC, now held by or to be issued to the Pledgor or any of its subsidiaries which would require prior notice to or approval from any Governmental Authority, or otherwise take action hereunder which would require prior notice to or approval from any Governmental Authority, in each case without first providing such notice or obtaining such prior approval of the relevant Governmental Authorities.
21.2 Upon and after the issuance of a Default Notice the Pledgor shall take any action which the Pledgee may reasonably request in the exercise of its rights and remedies under this Agreement in order to transfer or assign the Collateral to the Pledgee or to such one or more third parties as the Pledgee may designate, or to a combination of the foregoing. To enforce the provisions of this Clause 21, upon and after the issuance of a Default Notice, the Pledgee is empowered to seek from the FCC and any other Governmental Authority, to the extent required, consent to or approval of any involuntary assignment or transfer of control of any entity whose Collateral is subject to this Agreement for the purpose of seeking a bona fide purchaser to whom the Collateral will be assigned and control will ultimately be transferred. Pledgor agrees to cooperate with any such purchaser and with the Pledgee in the preparation, execution and filing of any applications and other documents and providing any information that may be necessary or helpful in obtaining the FCC’s or such other Governmental Authority’s consent to the assignment to such purchaser of the Collateral. Pledgor hereby agrees to consent to any such an involuntary transfer of control upon the request of the Pledgee upon and after the issuance of a Default Notice and, without limiting any rights of the Pledgee under this Agreement, to authorize the Pledgee to nominate a trustee or receiver to assume control of the Collateral, subject only to required judicial, FCC or other consent required by Governmental Authorities, in order to effectuate the transactions contemplated in this Clause 21. Such trustee or receiver shall have all the rights and powers as provided to it by law or court order, or to the Pledgee under this Agreement. Pledgor shall cooperate fully in obtaining the consent of the FCC and the approval or consent of each other Governmental Authority required to effectuate the foregoing.
21.3 Upon and after the issuance of a Default Notice, Pledgor shall use its best efforts to assist in obtaining consent or approval of the FCC and any other Governmental Authority, if required, for any action or transactions contemplated by this Agreement, including, without limitation, the preparation, execution and filing with the FCC of the transferor’s or assignor’s portion of any application or applications for consent to the transfer of control or assignment necessary or appropriate under the FCC’s rules and regulations for approval of the transfer or assignment of any portion of the Collateral.
15
21.4 Pledgor hereby acknowledges and agrees that the Collateral is a unique asset and that a violation of Pledgor’s covenant to cooperate with respect to any regulatory consents would result in irreparable harm to the Pledgee for which monetary damages are not readily ascertainable. Pledgor further agrees that, because of the unique nature of its undertaking in this subclause 21.4, the same may be specifically enforced, and it hereby waives, and agrees to waive, any claim or defense that the Pledgee would have an adequate remedy at law for the breach of this undertaking.
21.5 Without limiting the obligations of Pledgor hereunder in any respect, Pledgor further agrees that if Pledgor, upon and after the issuance of a Default Notice, should fail or refuse to execute any application or other document necessary or appropriate to obtain any governmental consent necessary or appropriate for the exercise of any right of the Pledgee hereunder, Pledgor agrees, to the extent consistent with applicable law, that such application or other document may be executed on Pledgor’s behalf by the clerk of any court or other forum in any competent jurisdiction without notice to the Pledgor.
22 REGISTRATION
22.1 The Pledgee is irrevocably authorised to present this Agreement and any agreement pursuant hereto for registration to the Belastingdienst Amsterdam Afdeling Registratie Unit in The Netherlands.
23 COUNTERPARTS
23.1 This Agreement may be executed in any number of counterparts and by way of facsimile exchange or email of executed signature pages, all of which taken together shall constitute one and the same agreement.
[remainder of this page intentionally left blank]
16
This Agreement has been entered into on 2 November 2004.
|
THE PLEDGOR |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ |
|
|
By: ▇▇▇▇▇ ▇▇▇▇▇▇ |
|
|
Title: attorney in fact |
|
|
|
|
|
|
|
|
THE PLEDGEE |
|
|
|
|
|
|
|
|
DEUTSCHE BANK AG, New York Branch |
|
|
|
|
|
|
|
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
|
|
Title: attorney in fact |
|
17