Exhibit 10.133
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November 13, 1996 (as amended,
modified or supplemented from time to time, this "Agreement"), made by the
undersigned pledgor (the "Pledgor"), in favor of CHRISTIANIA BANK OG
KREDITKASSE, NEW YORK BRANCH, as Collateral Agent (the "Pledgee"), for the
benefit of the Creditors (as defined below). Except as otherwise defined
herein, 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, Reading & Xxxxx Drilling Corporation, Reading & Xxxxx
Drilling Co. (the "Borrower"), various financial institutions from time to
time party thereto (the "Banks"), Banque Indosuez and Credit Lyonnais New York
Branch, as Documentation Agents (the "Documentation Agents"), and Christiania
Bank og Kreditkasse as Administrative Agent (together with any successor
agent, the "Administrative Agent," and together with the Banks and the
Documentation Agents, the "Creditors"), have entered into a Credit Agreement,
dated as of November 13, 1996 (as amended, modified or supplemented from time
to time, the "Credit Agreement"), providing for the making of Loans and the
issuance of, and participation in, Letters of Credit as contemplated therein;
WHEREAS, the Pledgor is a Guarantor of the obligations of the
Borrower under the Credit Agreement;
WHEREAS, it is a condition precedent to the making of Loans and
issuances of Letters of Credit under the Credit Agreement that the Pledgor
shall have executed and delivered to the Pledgee this Agreement;
WHEREAS, the Pledgor desires to execute this Agreement to satisfy
the conditions described in the preceding paragraph; and
NOW, THEREFORE, in consideration of the benefits accruing to the
Pledgor, the receipt and sufficiency of which are hereby acknowledged, the
Pledgor hereby makes the following representations and warranties to the
Pledgee and hereby covenants and agrees with the Pledgee as follows:
1. SECURITY FOR OBLIGATIONS. This Agreement is made by the
Pledgor for the benefit of the Creditors to secure:
(i) the Pledgor's guaranty of the full and prompt payment when due
(whether at the stated maturity, by acceleration or otherwise) of all
obligations and liabilities of the Borrower, now existing or hereafter
incurred under, arising out of or in connection with any Credit Document
to which the Borrower is a party and the due performance and compliance
by the Pledgor and the Borrower with the terms of each Credit Document;
(ii) 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;
(iii) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations, or liabilities 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 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
(iv) all amounts paid by any Creditor as to which such Creditor has
the right to reimbursement under Section 10 of this Agreement;
all such obligations, liabilities, sums and expenses set forth in clauses (i)
through (iv) of this Section 1 being herein collectively called the
"Obligations." The maximum amount secured under this Agreement is US
$300,000,000, plus any accrued and unpaid interest, fees and expenses.
2. DEFINITION OF SHARES. As used herein the term "Shares" shall
mean all of the issued and outstanding shares of capital stock at any time
owned by the Pledgor of Arcade Drilling, AS, a company formed under the laws
of Norway (the "Pledged Company"). The Pledgor represents and warrants that
on the date hereof such shares constitute 74.4% of the issued and outstanding
capital stock of the Pledged Company.
3. PLEDGE OF THE VPS ACCOUNT.
3.1. Pledge. To secure the Obligations and for the purposes set
forth in Section 1 hereof, the Pledgor hereby pledges to and deposits with the
Pledgee all of the Shares of the Pledged Company which are registered in the
Pledgor's VPS account number 05201.0000000 (the "VPS Account"), and delivers
to the Pledgee a duly executed mortgage deed in the form of Annex A hereto.
The Pledgor represents and warrants that on the date hereof, the Shares
registered in the VPS Account constitute 65% of the issued and outstanding
capital stock of the Pledged Company.
3.2. Subsequently Acquired Shares. If the Pledgor shall acquire
(by purchase, stock dividend or otherwise) any additional shares of the
Pledged Company at any time or from time to time after the date hereof
("Additional Shares"), the Pledgor will forthwith pledge to the Pledgee and
deposit into the VPS Account as many of such Additional Shares as is necessary
to maintain the number of Shares in the VPS Account at not less than 65% of
the total capital shares of the Pledged Company, and will promptly thereafter
deliver to the Pledgee a certificate executed by any Authorized Officer of the
Pledgor describing such Additional Shares and certifying that the same have
been duly pledged and deposited with the Pledgee hereunder.
3.3. Definition of Pledged Shares and Collateral. All Shares at
any time pledged or required to be pledged hereunder are hereinafter called
the "Pledged Shares," which together with all proceeds thereof, including any
securities and moneys received and at the time held by the Pledgee hereunder
and all Dividends and Distributions on or with respect to any Pledged Shares
is hereinafter called the "Collateral". As used herein the term (i) Dividends
shall mean all stock dividends, liquidating dividends, shares of stock
resulting from stock splits, reclassifications, warrants, options, non-cash
dividends and other distributions (whether similar or dissimilar to the
foregoing) on or with respect to any Pledged Shares or other shares of capital
stock constituting Collateral, but shall not mean Distributions and (ii)
Distributions shall mean all cash dividends and cash distributions with
respect to any Pledged Shares.
4. VOTING, ETC., WHILE NO NOTICED EVENT OF DEFAULT. Unless and
until a Noticed Event of Default shall have occurred and be continuing, the
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Pledged Shares and to give all consents, waivers or
ratifications in respect thereof; provided, that no vote shall be cast or any
consent, waiver or ratification given or any action taken which would violate
or be inconsistent with any of the terms of this Agreement or any other Credit
Document, or which would have the effect of impairing the rights, priorities
or remedies of the Pledgee or any other Creditor under this Agreement or any
other Credit Document. All such rights of the Pledgor to vote and to give
consents, waivers and ratifications shall cease in case a Noticed Event of
Default shall occur and be continuing, and Section 6 hereof shall become
applicable. As used herein, a "Noticed Event of Default" shall mean (i) an
Event of Default with respect to any Borrower under Section 9.05 of the Credit
Agreement and (ii) any other Event of Default in respect of which the Pledgee
has given the Pledgor notice that such Event of Default constitutes a "Noticed
Event of Default". Immediately following the occurrence of a Noticed Event of
Default, the Pledgor shall give the Pledgee a signed and dated power of
attorney granting the Pledgee the right to vote all of the Pledged Shares in
respect of each and every future shareholders meeting.
5. DIVIDENDS AND OTHER DISTRIBUTIONS. Unless a Noticed Event of
Default shall have occurred and be continuing, all cash dividends payable in
respect of the Pledged Shares shall be paid to the Pledgor. The Pledgee shall
also be entitled to receive directly or by way of deposit into the VPS
Account, and to retain as part of the Collateral:
(i) all other or additional stock or other securities or property
(other than cash) paid or distributed by way of dividend or otherwise in
respect of the Pledged Shares; and
(ii) all other or additional stock or other securities or property
(including cash) paid or distributed in respect of the Pledged Shares by
way of stock-split, spin-off, split-up, reclassification, combination of
shares or similar rearrangement.
6. REMEDIES IN CASE OF NOTICED EVENT OF DEFAULT. In case a
Noticed Event of Default shall have occurred and be continuing, the Pledgee
shall be entitled to exercise all of the rights, powers and remedies (whether
vested in it by this Agreement or by any other Credit Document or by law) for
the protection and enforcement of its rights in respect of the Collateral, and
the Pledgee shall be entitled, without limitation, to exercise the following
rights, which the Pledgor hereby agrees to be commercially reasonable:
(i) to receive all amounts payable in respect of the Collateral
payable to the Pledgor under Section 5 hereof;
(ii) to sell all or part of the Pledged Shares through a licensed
securities firm in accordance with the Norwegian Enforcement Act of
1992;
(iii) to transfer all or any part of the Pledged Shares into the
Pledgee's name or the name of its nominee or nominees (the Pledgee
agrees to promptly notify the Pledgor after such transfer; provided,
however, that the failure to give such notice shall not affect the
validity of such transfer);
(iv) to vote all or any part of the Pledged Shares
7. REMEDIES, ETC., CUMULATIVE. Each right, power and remedy of
the Pledgee provided for in this Agreement or any other Credit Document 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
Creditor of any one or more of the rights, powers or remedies provided for in
this Agreement or any other Credit Document 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 Creditor of all
such other rights, powers or remedies, and no failure or delay on the part of
the Pledgee or any other Creditor to exercise any such right, power or remedy
shall operate as a waiver thereof. The Creditors agree that this Agreement
may be enforced only by the action of the Collateral Agent or the Pledgee, in
each case acting upon the instructions of the Required Banks and that no other
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 be exercised by the
Collateral Agent for the benefit of the Creditors upon the terms of this
Agreement.
8. APPLICATION OF PROCEEDS. (a) All moneys collected by the
Pledgee upon any sale or other disposition of the Collateral pursuant to the
terms of this Agreement, together with all other moneys received by the
Pledgeehereunder, shallbe appliedinthe mannerprovided inthe SecurityAgreement.
(b) It is understood and agreed that the Pledgor shall remain
liable to the extent of any deficiency between the amount of the proceeds of
the Collateral hereunder and the aggregate amount of the Obligations of the
Pledgor.
9. 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.
10. INDEMNITY. (a) The Pledgor agrees to indemnify, reimburse
and hold the Collateral Agent, each Creditor and its respective successors,
assigns, employees, agents and servants (hereinafter in this Section 10
referred to individually as "Indemnitee," and collectively as "Indemnitees")
harmless as set forth in Section 12.01 of the Credit Agreement.
(b) Without limiting the application of Section 10, the Pledgor
agrees to pay, or reimburse the Collateral Agent for (if the Collateral Agent
shall have incurred fees, costs or expenses because the Pledgor shall have
failed to comply with its obligations under this Agreement or any Credit
Document) any and all reasonable fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Collateral Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all reasonable fees and taxes in connection
with the recording or filing of instruments and documents in public offices,
payment or discharge of any taxes or Liens upon or in respect of the
Collateral, premiums for insurance with respect to the Collateral and all
other reasonable fees, costs and expenses in connection with protecting,
maintaining or preserving the Collateral and the Collateral Agent's interest
therein, whether through judicial proceedings or otherwise, or in defending or
prosecuting any actions, suits or proceedings arising out of or relating to
the Collateral.
(c) Without limiting the application of Section 10(a) or (b),
the Pledgor agrees to pay, indemnify and hold each Indemnitee harmless from
and against any loss, costs, damages and expenses which such Indemnitee may
suffer, expend or incur in consequence of or growing out of any misrepresen-
tation by the Pledgor in this Agreement or in any writing contemplated by or
made or delivered pursuant to or in connection with this Agreement.
(d) If and to the extent that the obligations of the Pledgor
under this Section 11 are unenforceable for any reason, the Pledgor hereby
agrees to make the maximum contribution to the payment and satisfaction of
such obligations which is permissible under applicable law.
(e) Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Obligations secured
by the Collateral. The indemnity obligations of the Pledgor contained in this
Section 10 shall continue in full force and effect notwithstanding the full
payment of all the Notes issued under the Credit Agreement and the payment of
all other Obligations and notwithstanding the discharge thereof.
11. THE PLEDGEE AS COLLATERAL 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 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. The Pledgee
shall act hereunder on the terms and conditions set forth herein and in
Section 11 of the Credit Agreement.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS OF PLEDGOR. The
Pledgor represents, warrants and covenants that (i) it is the legal, record
and beneficial owner of, and has good and marketable title to, all Shares
pledged by it hereunder; (ii) no consent of any other party (including, with-
out limitation, any stockholder or creditor of the Pledgor or any of its
Subsidiaries (including the Pledged Company)) 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 the Pledgor in connection with the execution,
delivery or performance of this Agreement, or in connection with the exercise
of its rights and remedies pursuant to this Agreement, except those which have
been obtained or made or as may be required by laws affecting the offer and
sale of securities generally in connection with the exercise by the Pledgee of
certain of its remedies hereunder and (iii) all the Shares have been duly and
validly issued, are fully paid and nonassessable. The Pledgor covenants and
agrees that it will defend the Pledgee's right, title and security interest in
and to the Shares and the proceeds thereof against the claims and demands of
all persons whomsoever; and the 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
Creditors.
13. TERMINATION, RELEASE. (a) After the Termination Date (as
defined below), this Agreement shall terminate (provided that all indemnities
set forth herein including, without limitation, in Section 10 hereof shall
survive any such termination) and the Pledgee, at the request and expense of
the Pledgor, will promptly execute and deliver to the Pledgor a proper
instrument or instruments acknowledging the satisfaction and termination of
this Agreement, and will duly assign, transfer and deliver to the Pledgor
(without recourse and without any representation or warranty) such of the
Collateral as may be in the possession of the Pledgee and as has not
theretofore been sold or otherwise applied or released pursuant to this
Agreement. As used in this Agreement, "Termination Date" shall mean the date
upon which the Total Commitment has been terminated, no Note or Letter of
Credit is outstanding and all other 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 Section 8.02 of the Credit Agreement or is
otherwise released at the direction of the Required Banks (or all the Banks if
required by Section 12.12 of the Credit Agreement), the Pledgee, at the
request and expense of the Pledgor will duly assign, transfer and deliver to
the Pledgor (without recourse and without any representation or warranty) such
of the Collateral as is then being (or has been) so sold or released and as
may be in possession of the Pledgee and has not theretofore been released
pursuant to this Agreement.
(c) At any time that the Pledgor desires that Collateral be
released as provided in the foregoing Section 13(a) or (b), it shall deliver
to the Pledgee a certificate signed by an Authorized Officer of the Pledgor
stating that the release of the Collateral is permitted pursuant to Section
13(a) or (b).
14. NOTICES, ETC. All notices and other communications hereunder
shall be in writing and shall be delivered or mailed by first class mail,
postage prepaid, addressed:
(a) if to the Pledgor, at its address set forth opposite its
signature below;
(b) if to the Pledgee, at:
Christiania Bank og Kreditkasse
New York Branch
00 Xxxx 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Hans Chr. Kjelsrud
(c) if to any Bank (other than the Pledgee), at such address as
such Bank shall have specified in the Credit Agreement;
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.
15. WAIVER; AMENDMENT. None of the terms and conditions of this
Agreement may be changed, waived, modified or varied in any manner whatsoever
unless in writing duly signed by the Pledgor and the Pledgee (with the written
consent of the Required Banks (or all the Banks if required by Section 12.12
of the Credit Agreement)).
16. MISCELLANEOUS. This Agreement shall be binding upon the
successors and assigns of the Pledgor and shall inure to the benefit of and be
enforceable by the Pledgee and its successors and assigns. THIS AGREEMENT
SHALL TO THE EXTENT POSSIBLE BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK, though the enforcement hereof and certain
remedies available hereunder may be governed by Norwegian law. 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 WITNESS WHEREOF, the 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.
Address:
000 Xxxxxxxxxxxx
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.:(000) 000-0000
READING & XXXXX CORPORATION
By_________________________
Title:
CHRISTIANIA BANK OG KREDITKASSE,
NEW YORK BRANCH
as Pledgee
By____________________________
Title:
By____________________________
Title:
ANNEX A
to
PLEDGE AGREEMENT
FORM OF MORTGAGE DEED
