ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
1.3 Amended and Restated Pledge Agreement dated March 27, 1997
between the Company and RIMCO.
AMENDED AND RESTATED PLEDGE AGREEMENT
THIS AMENDED AND RESTATED PLEDGE AGREEMENT (this "Agreement") dated
March 27, 1997 is made by UNIVERSAL SEISMIC ASSOCIATES, INC., a Delaware
corporation ("USA"), with an office at 00000 Xxxx Xxx Xxxxx, Xxxxxxx, Xxxxx
00000 to RIMCO PARTNERS, L.P., a Delaware limited partnership, RIMCO PARTNERS,
X.X. XX, a Delaware limited partnership, RIMCO PARTNERS, L.P. III, a Delaware
limited partnership, and RIMCO PARTNERS, X.X. XX, a Delaware limited partnership
(collectively, the "Noteholders"), all with an office at 000 Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000.
Preliminary Statement. The Noteholders entered into a Note Purchase
Agreement dated as of December 20, 1996 with UNEXCO, INC. (the "Company"), a
Delaware corporation and wholly-owned subsidiary of USA (the "Original Note
Agreement"), whereby the Noteholders purchased from the Company its 12% Senior
Secured General Obligation Notes in the maximum aggregate principal amount of
$4,000,000. USA executed and delivered to the Noteholders that certain Guaranty
Agreement dated December 20, 1996, whereby USA unconditionally and irrevocably
guaranteed the Company's obligations under the Original Note Agreement (the
"Original Guaranty Agreement"). To secure USA's obligations under the Original
Guaranty Agreement, USA executed and delivered that certain Pledge Agreement
dated December 20, 1996 to the Noteholders (the "Original Pledge Agreement").
The Company and the Noteholders have entered into that certain Amended
and Restated Note Purchase Agreement (the "Amended Note Agreement"), dated of
even date herewith, whereby the Company and the Noteholders amended and restated
the Original Note Agreement and whereby the Noteholders purchased from the
Company its Amended and Restated 12% Senior Secured General Obligation Notes in
the maximum aggregate principal amount of $5,500,000 (such notes, together with
all substitutions, replacements, extensions, modifications and restatements
thereof, being referred to herein, collectively as the "Notes"), which Notes are
in substitution, modification, renewal and increase, but not in extinguishment,
novation or discharge, of the indebtedness evidenced by the Company's 12% Senior
Secured General Obligation Notes issued under the Original Note Agreement.
In connection with the Amended Note Agreement, USA and the Noteholders
have entered into that certain Amended and Restated Guaranty Agreement, dated of
even date herewith (as same may be amended from time to time being referred to
herein as the "Amended Guaranty Agreement"), whereby, among other things, USA
has unconditionally and irrevocably guaranteed the full and punctual payment
when due, whether at stated maturity or earlier by acceleration or otherwise, of
any and all debts, liabilities and obligations of the Company now or hereafter
existing under the Amended Note Agreement, the Notes or any of the other
Transaction Documents (as such term is defined in the Amended Note Agreement).
USA and the Noteholders desire to amend and restate the Original Pledge
Agreement to secure USA's obligations under the Amended Guaranty Agreement, all
as more particularly set forth herein. USA is the owner of all of the issued and
outstanding shares of common stock of the Company (the "Pledged Shares"). It is
a condition precedent to the obligation of the Noteholders to make Advances
under the Amended Note Agreement that USA shall have made the pledge
contemplated by this Agreement.
Now, Therefore, in consideration of the premises and other good and
valuable consideration, USA and the Noteholders hereby agree to amend and
restate the original Pledge Agreement as follows:
Section 1. Defined Terms and Related Matters.
(a) The capitalized terms used herein which are defined in the Amended
Note Agreement and not otherwise defined herein shall have the meanings
specified therein.
(b) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement.
(c) Unless otherwise defined herein or in the Amended Note Agreement,
the terms defined in Articles 8 and 9 of the Uniform Commercial Code as
currently in effect in the State of New York are used herein as therein
defined.
Section 2. Grant of Security. USA hereby pledges to the Noteholders,
and grants to the Noteholders a security interest in, the following (the
"Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments and other property from time to
time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares;
(b) all additional shares of stock of the Company from time to time
acquired by USA in any manner, and the certificates representing such
additional shares, and all dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect
of or in exchange for any or all of such shares; and
(c) all proceeds of any of the foregoing.
This inclusion of proceeds in this Agreement does not authorize USA to
sell, dispose of or otherwise use the Pledged Collateral in any manner not
specifically authorized hereby.
Section 3. Security for Obligations. This Agreement secures the prompt
and complete (a) payment of all obligations of USA to the Noteholders now or
hereafter existing under the Amended Guaranty Agreement or the other Transaction
Documents (including, without limitation, any interest accruing after the filing
of any petition or pleading in a bankruptcy or similar proceeding), and (b)
performance and observance by USA of all obligations, covenants and
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conditions contained in the Amended Guaranty Agreement and the other Transaction
Documents (including, without limitation, the obligations, covenants and
conditions contained herein), whether for principal, interest, fees, expenses or
otherwise (all such obligations, covenants and conditions described in the
foregoing clauses (a) and (b) being hereinafter collectively referred to as the
"Obligations").
Section 4. Delivery of Pledged Collateral. All certificates representing
the Pledged Collateral shall be delivered to and held by or on behalf of the
Noteholders pursuant hereto and shall be in suitable form for transfer by
delivery, duly endorsed in blank without restriction, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Noteholders. The Noteholders shall have the right,
at any time in their sole discretion and without notice to USA, to transfer to
or to register in the names of the Noteholders any or all of the Pledged
Collateral, subject only to the revocable rights specified in Section 7(a)
hereof and, prior to a foreclosure sale or other disposition of the Pledged
Collateral, the beneficial ownership of USA. In addition, the Noteholders shall
have the right at any time to exchange certificates representing Pledged
Collateral for certificates of smaller or larger denominations.
Section 5. Representations and Warranties. USA represents and warrants
as follows:
(a) The Pledged Shares have been duly authorized and validly issued
and are fully paid and non-assessable.
(b) USA is the legal, record and beneficial owner of the Pledged
Collateral free and clear of any lien, security interest, options or other
charge or encumbrance except for the security interest created by this
Agreement.
(c) The delivery of the Pledged Shares to the Noteholders pursuant
to this Agreement creates a valid and perfected first priority security interest
in the Pledged Collateral, securing the payment of the Obligations.
(d) No authorization, approval, or other action by, and no notice to
or filing with, any governmental authority or regulatory body or other Person is
required either (i) for the pledge by USA of the Pledged Collateral pursuant to
this Agreement or for the execution, delivery or performance of this Agreement
by USA or (ii) for the exercise by the Noteholders of the voting or other rights
provided for in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required in connection
with such disposition by laws affecting the offering and sale of securities
generally).
(e) The Pledged Shares constitute one hundred percent (100%) of the
issued and outstanding shares of stock of the Company.
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Section 6. Further Assurances. USA agrees that from time to time, at the
expense of USA, USA will promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary or desirable,
or that the Noteholders may request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Noteholders to exercise and enforce their rights and remedies hereunder with
respect to any Pledged Collateral. USA will furnish to the Noteholders from time
to time statements and schedules further identifying and describing the Pledged
Collateral and such other reports in connection with the Pledged Collateral as
the Noteholders may reasonably request, all in reasonable detail.
Section 7. Voting Rights; Dividends; Etc. (a) So long as no Event of
Default shall have occurred and be continuing and the Noteholders have not
delivered the notice specified in Section 7(b):
(i) USA shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement, the Amended
Guaranty Agreement or the other Transaction Documents.
(ii) USA shall be entitled to receive and retain any and all dividends
paid in respect of the Pledged Collateral to the extent, and only to the
extent, such dividends are permitted under the Amended Note Agreement,
provided, however, that all (A) dividends paid or payable other than in cash
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in respect of, and instruments and other property received, receivable or
otherwise distributed in respect of, or in exchange for, any Pledged
Collateral, (B) dividends and other distributions paid or payable in cash in
respect of any Pledged Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus, and (C) cash paid, payable or otherwise
distributed in redemption of, or in exchange for, any Pledged Collateral,
shall be, and shall be forthwith delivered to the Noteholders to hold as,
Pledged Collateral and shall, if received by USA, be received in trust for the
benefit of the Noteholders, be segregated from the other property or funds of
USA, and be forthwith delivered to the Noteholders as Pledged Collateral in
the same form as so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, at the option of the Noteholders exercised in a writing sent to USA:
(i) All rights of USA to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to Section 7(a)(i)
shall cease, and the Noteholders shall thereupon have the sole right to
exercise such voting and other consensual rights.
(ii) All rights of USA to receive the dividends which it would otherwise
be entitled to receive and retain pursuant to Section 7(a)(ii) shall cease,
and the Noteholders shall thereupon have the right to receive and hold as
Pledged Collateral such dividends.
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(iii) All dividend payments which are received by USA contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in trust
for the benefit of the Noteholders, shall be segregated from other funds of USA
and shall be forthwith paid over the Noteholders as Pledged Collateral in the
same form as so received (with any necessary endorsement).
Section 8. Transfers and Other Liens. USA shall not: (a) sell, assign (by
agreement, operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral; or (b) create or suffer
to exist any Lien upon or with respect to any of the Pledged Collateral, except
for the security interest created by this Agreement. USA agrees that it will
cause the Company not to issue any stock or other equity securities in addition
to or in substitution for the Pledged Shares.
Section 9. Noteholders Appointed Attorney-in-fact. USA hereby irrevocably
appoints the Noteholders USA's attorney-in-fact, with full authority in the
place and stead of USA and in the name of USA, the Noteholders or otherwise,
from time to time while an Event of Default exists in the Noteholders' sole
discretion, to take any action and to execute any instrument which the
Noteholders may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, to receive, endorse and collect all
certificates or instruments made payable to USA representing any dividend or
other distribution in respect of the Pledged Collateral.
Section 10. Noteholders May Perform. If USA fails to perform any agreement
contained herein, the Noteholders may themselves perform, or cause performance
of, such agreement, and the reasonable expenses of the Noteholders incurred in
connection therewith shall be payable by USA under Section 14.
Section 11. The Noteholders' Duties. The powers conferred on the
Noteholders hereunder are solely to protect their interest in the Pledged
Collateral and shall not impose any duty upon them to exercise any such powers.
Except for reasonable care in the custody of any Pledged Collateral in their
possession and the accounting for moneys actually received by them hereunder,
the Noteholders shall have no duty as to any Pledged Collateral or as to the
taking of any neccessary steps to preserve rights against prior parties or any
other rights pertaining to any Pledged Collateral. The Noteholders shall be
deemed to have exercised reasonable care in the custody and preservation of any
Pledged Collateral in their possession if such Pledged Collateral is accorded
treatment substantially equal to that which the Noteholders accord their own
property, it being understood that the Noteholders shall not have any
responsibility for (a) ascertaining, or taking action with respect to calls,
conversions, exchanges or other matters relative to the Pledged Collateral,
whether the Noteholders have knowledge of such matters, or (b) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
Section 12, Remedies. If any Event of Default shall have occurred and be
continuing :
(a) The Noteholders may exercise in respect of the Pledged Collateral, in
addition to the rights and remedies provided for herein or otherwise available
to them, all rights
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and remedies of a secured party on default under the Uniform Commerical Code in
effect in the State of New York (as amended from time to time, the "the Code")
(whether or not the Code applies to the affected Pledged Collateral) and the
Noteholders may also, without notice except as specified below, sell the Pledged
Collateral or any part thereof in one or more parcels at public or private sale,
at any of the Noteholder's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Noteholders may deem
commercially reasonable. USA agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to USA of the time and place of
any public sale or the time after which any private sale is to be made shall
constitute reasonable notification thereof. The Noteholders shall not be
obligated to make any sale of Pledged Collateral regardless of notice of sale
having been given. The Noteholders may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor, and such sale
may, without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by the Noteholders as Pledged Collateral and all cash
proceeds received by the Noteholders in respect of any sale of, collection from,
or other realization upon all or any part of the Pledged Collateral may, in the
sole discretion of the Noteholders, be held by the Noteholders as collateral
for, and/or then or at any time thereafter applied (after payment of any amounts
payable to the Noteholders pursuant to Section 14) pro rata to and for the
Noteholders in the following order of priority:first, to the Noteholders in
proportion to the aggregate amount of Obligations then owing to each such
Noteholder under the Amended Guaranty Agreement, and second, to the Noteholders
in proportion to the aggregate amount of all other Obligations then owing to
each such Noteholder. Any surplus of such cash proceeds held by the Noteholders
and remaining after payment in full of all the Obligations shall be paid over to
USA or to whomsoever may be lawfully entitled to receive such surplus.
(c) All rights and remedies of the Noteholders expressed herein are in
addition to all other rights and remedies possessed by the Noteholders in the
Amended Note Agreement, the Amended Guaranty Agreement and any other agreement
or instrument relating to the Obligations.
Section 13. Private Sale of Pledged Collateral. USA recognizes that the
Noteholders may be unable to effect a public sale of any or all the Pledged
Collateral by reason of certain prohibitions contained in the laws of any
jurisdiction outside the United States or in the Securities Act and applicable
state securities laws, but may instead be compelled to resort to one or more
private sales thereof to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such Pledged Collateral for their own
account for investment and not with a view to the distribution or resale
thereof. USA acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale were a
public sale and, notwithstanding such circumstances, agrees that no such private
sale shall be deemed not to have been made in a commercially reasonable manner
solely because the sales price received is lower than the price that could have
been obtained at a public sale. The Noteholders shall not be under any
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obligation to delay a sale of any of the Pledged Collateral for the period of
time necessary to permit the Company to register such securities under the laws
of any jurisdiction outside the United States, under the Securities Act or under
any applicable state securities laws, even if the Company would agree to do so.
Section 14. Indemnity and Expenses.
(a) USA HEREBY INDEMNIFIES THE NOTEHOLDERS AND THE OTHER INDEMNIFIED
PERSONS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES AND LIABILITIES GROWING
OUT OF OR RESULTING FROM THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
ENFORCEMENT OF THIS AGREEMENT), EXCEPT CLAIMS, LOSSES OR LIABILITIES RESULTING
FROM THE NOTEHOLDERS' OR OTHER INDEMNIFIED PERSONS' GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. IT IS THE EXPRESS INTENTION OF USA THAT THE NOTEHOLDERS
AND THE OTHER INDEMNIFIED PERSONS SHALL BE INDEMNIFIED AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DEFICIENCIES, JUDGMENTS OR
EXPENSES ARISING OUT OF OR RESULTING FROM THE ORDINARY NEGLIGENCE (WHETHER
SOLE, CONCURRENT OR CONTRIBUTORY) OR STRICT LIABILITY OF THE NOTEHOLDERS OR
THE OTHER INDEMNIFIED PERSONS.
(b) USA will upon receipt of an invoice pay to the Noteholders the amount
of any and all expenses, including the reasonable fees and disbursements of
their counsel and of any experts and agents, that the Noteholders may incur in
connection with (i) the administration of this Agreement, (ii) the evaluation,
appraisal, custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Pledged Collateral,
(iii) the exercise or enforcement of any of the rights of the Noteholders
hereunder or (iv) the failure by USA to perform or observe any of the
provisions hereof. USA agrees to pay interest on any expenses or other sums
payable to the Noteholders hereunder that are not paid when due at a rate per
annum equal to the lesser of (i) the Highest Lawful Rate and (ii) the Default
Rate.
Section 15. Amendments, Etc. No amendment or waiver of any provision of
this Agreement, nor consent to any departure by USA herefrom, shall in any event
be effective unless the same shall be in writing and signed by the Noteholders
and USA, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Section 16. Addresses for Notices. All notices and other communications
provided for hereunder shall be given in the manner and at the addresses, and
shall become effective as, specified in the Amended Note Agreement. The address
and telecopy number for USA shall be the same as those for USA set forth in the
Amended Guaranty Agreement.
Section 17. Waiver of Marshaling. All rights of marshaling of assets of
USA, including any such right with respect to the Pledged Collateral, are hereby
waived by USA.
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Section 18. Limitation by Law. All the provisions of this Agreement are
intended to be subject to all applicable mandatory provisions of law which may
be controlling and to be limited to the extent necessary so that they will not
render this Agreement invalid, unenforceable, in whole or in part, or not
entitled to be recorded, registered of filed under the provisions of any
applicable law.
Section 19. Separability. Should any clause, sentence, paragraph,
subsection or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating or
voiding the remainder of this Agreement, and the parties hereto agree that the
part or parts of this Agreement so held to be invalid, unenforceable or void
will be deemed to have been stricken herefrom by the parties hereto, and the
remainder will have the same force and effectiveness as if such stricken part or
parts had never been included herein.
Section 20. Captions. The captions in this Agreement have been inserted for
convenience only and shall be given no substantive meaning or significance
whatever in construing the terms and provisions of this Agreement.
Section 21. No Waiver; Remedies. No failure on the part of the Noteholders
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 22. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Section 23. Continuing Security Interest; Transfer of Notes. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) remain in full force and effect until payment in full of the Obligations and
termination of the Commitments, (ii) be binding upon USA, its successors and
assigns and (iii) inure to the benefit of the Noteholders and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing clause (iii), each Noteholder may assign or otherwise transfer all or
a portion of any of the Notes held by it to any other Person, and such other
Person (other than USA, the Company or their Affiliates) shall thereupon become
vested with all the benefits in respect thereof granted to such Noteholder
herein or otherwise. Upon the payment in full of the Obligations and termination
of the Commitments, the security interest granted hereby shall terminate and all
rights to the Collateral shall revert to USA. Upon any such termination, USA
shall be entitled to the return, upon its request and at its expense, of such of
the Pledged Collateral as shall not have been sold or otherwise applied against
the Obligations pursuant to the terms hereof.
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Section 24. Security Interest Absolute. All rights of the Noteholders
and security interests hereunder, and all obligations of USA hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Amended Guaranty
Agreement or the other Transaction Documents unless such lack of validity
and enforceability results from a failure of consideration;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Amended Guaranty
Agreement or the other Transaction Documents;
(c) any exchange, release or non-perfection of any other collateral, or
any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Company or USA.
Section 25. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or made in writing by
or on behalf of USA in connection herewith shall survive the execution and
delivery of this Agreement and repayment of the Obligations. Any investigation
by the Noteholders shall not diminish in any respect whatsoever their rights to
rely on such representations and warranties.
Section 26. Jury Waiver. USA AND THE NOTEHOLDERS HEREBY IRREVOCABLY
WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 27. Choice or Forum. USA AND THE NOTEHOLDERS AGREE THAT ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE FEDERAL OR STATE COURTS
OF XXXXXX COUNTY, TEXAS.
Section 28. Governing Law; Terms. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York, except as
required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of New York.
Section 29. Effect on Original Pledge Agreement. This Agreement amends
and restates in its entirety the Original Pledge Agreement; provided that
nothing herein is intended to
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release, extinguish, or effect the priority of the security interest in the
Pledged Collateral granted by the Original Pledge Agreement.
IN WITNESS WHEREOF, USA and the Noteholders have caused this Agreement to
be duly executed and delivered by their duly authorized representatives as of
the date first above written.
UNIVERSAL SEISMIC ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
RIMCO PARTNERS, L.P.,
RIMCO PARTNERS, X.X. XX,
RIMCO PARTNERS,L.P. III, and
RIMCO PARTNERS, X.X. XX
By: Resource Investors Management Company
Limited Partnership, their general partner
By: RIMCO Associates, Inc.,
its general partner
By: /s/ Xxxx Xxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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