Looking for an agreement? Search from over 1 million agreements now.

Agreement of Deed - Pledge of Shares

This is an actual contract by Affiliated Computer Services.

Save time and money with our Premium Packages.
Buy all (8) recommended agreements for
$140.00 (50% savings)
Agreement Preview
Related Agreement Types:
Search This Document
Exhibit 10.5 AGREEMENT AND DEED OF THE CREATION OF A FIRST RANKING RIGHT
OF PLEDGE OF SHARES IN AFFILIATED COMPUTER SERVICES
INTERNATIONAL B.V. On the twentieth day of March, two thousand and six, appeared before me, Johannes Schouten, hereinafter referred to as " civil law notary" , substitute of Pieter Heyme Bolland, civil law notary ( notaris ) (" Notary" ) officiating at ( met plaats van vestiging te ) Amsterdam, The Netherlands: 1. Saskia Dorothe9e Schenke, employed at AKD Prinsen Van Wijmen N.V. at its office at Orlyplein 10, 1043 DP Amsterdam, the Netherlands, born at Wijchen, the Netherlands on the twenty-fourth day of March nineteen hundred and eighty-two, acting upon a written power of attorney granted by and as such representing: a. ACS Global, Inc. , a company organized and existing under the laws of Delaware, having its registered office at 1209 Orange Street, Wilmington, Delaware 19801, United States of America, with address 2828 North Haskell, Dallas, TX 75204, United States of America (the " Pledgor" ); b. Affiliated Computer Services International B.V. , a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized and existing under the laws of the Netherlands, with Ministry of Justice number B.V. 1165104, having its corporate seat (statutaire zetel) at Amsterdam, the Netherlands, with address Fred. Roeskestraat 123-I, 1076 EE Amsterdam, the Netherlands, registered with the trade register of the Chamber of Commerce for Amsterdam (Kamer van Koophandel en Fabrieken voor Amsterdam) under number 34160388 (the " Company" ); 2. Bart Garnaat, employed as a lawyer at AKD Prinsen Van Wijmen N.V. at its office at Orlyplein 10, 1043 DP Amsterdam, the Netherlands, born at Purmerend, the Netherlands on the sixteenth day of September nineteen hundred and seventy-eight, acting upon a written power of attorney granted by and as such representing Citicorp USA, Inc. , a company incorporated under the laws of Delaware, United States of America, having its registered office in 1209 Orange Street, c/o CT Corporation, Wilmington, Delaware, United States of America, with address 388 Greenwich Street, New York, New York 10013, United States of America, for the purposes hereof acting in its own capacity (the " Pledgee" ).

Page 1 of 24


WHEREAS : A. On the twentieth day of March two thousand six, a Credit Agreement (the " Credit Agreement" ) (as same may be extended, prolonged or amended, renewed or novated from time to time) was entered into amongst, inter alia, (1) Affiliated Computer Services, Inc. as Borrower, (2) ACS Worldwide Lending Ltd. as the U.K. Borrower, (3) Citicorp USA, Inc. as Administrative Agent and (4) Citigroup Global Markets, Inc. as Sole Lead Arranger and Book Runner. B. Moreover, in connection with the transactions contemplated by the Credit Agreement, the Pledgor has entered into a Guaranty (as defined in the Credit Agreement (and included in the Loan Documents)) dated the twentieth day of March two thousand six in favor of the Secured Parties. A copy of the Guaranty (as defined in the Credit Agreement (and included in the Loan Documents)) is attached to this Deed (as hereinafter defined) as Appendix 1 . C. Pursuant to the Credit Agreement and the Guaranty, the Pledgor is obliged to create a right of pledge on a certain number of shares in the capital of the Company in favor of the Pledgee, which pledge shall be created by this Deed (as hereinafter defined). DECLARE AS FOLLOWS :
1. INTERPRETATION 1.1 Words and expressions defined in the Credit Agreement shall have the same meaning when used herein unless otherwise defined herein. 1.2 In this agreement and deed of the creation of a first ranking right of Pledge of Shares ( pandakte ) (the " Deed" ) the following words and expressions shall have the following meanings: Articles of Association means the articles of association ( statuten ) of the Company as they read since they have lastly been amended by a deed of amendment, executed on the tenth day of March two thousand six, before Paul Hubertus Nicolaas Quist, civil law notary officiating in Amsterdam, the Netherlands, (these articles of association have not been amended since) as amended from time to time; Beneficiary means each of the Administrative Agent, the Lenders and the Issuers and any other holder of an Obligation; Charged Assets mean: (i) a number equal to one percent (1%) of the Shares, which - subject to the Condition Precedent A (as defined hereafter) - is increased to sixty-five percent (65%) of the Shares; (ii) the Related Assets and the Future Related Assets, and, subject to the Condition Precedent (as defined

Page 2 of 24


hereafter), the Conditional Related Assets; and (iii) the dividends, rights, monies and other assets to which the Pledgee is entitled pursuant to the terms hereof or any of the foregoing; Conditional Related Assets has the meaning ascribed thereto in Clause 3.2 (ii) b; Condition Precedent A the condition precedent ( opschortende voorwaarde ) of the occurrence of any of the following events: (i) if an Event of Default under Section 9.1(f) of the Credit Agreement has occurred and is continuing; or (ii) upon written notice by the Administrative Agent if any other Event of Default has occurred and is continuing; or (iii) if the Company shall cease to be subject to the covenants set forth in Section 301 of each Supplemental Indenture (whether as a result of defeasance (legal or covenant), discharge, waiver, amendment or otherwise); Condition Precedent B has the meaning ascribed thereto in Clause 3.8; Enforcement Event means any default ( verzuim ) in or in connection with the proper performance of the Secured Obligations, provided it is also an Event of Default (as defined in the Credit Agreement) which has occurred and is continuing, and has not been remedied or waived; Existing Indenture means the Indenture, dated the sixth day of June two thousand five, between the Company and The Bank of New York Trust Company, N.A., as trustee, as supplemented by the First Supplemental Indenture and the Second Supplemental Indenture; Existing Note means each of the notes issued under and governed by the Existing Indenture; Existing Note Obligations means all obligations of the Company under the Existing Notes;

Page 3 of 24


First Supplemental Indenture means the First Supplemental Indenture, dated the sixth day of June two thousand five, between the Company and The Bank of New York Trust Company, N.A., as trustee, but not as thereafter may be supplemented or amended; Future Shares means any and all shares in the capital of the Company which are issued to or otherwise acquired by the Pledgor after the date of this Deed regardless of whether such issue or other acquisition of shares was approved prior to the date hereof and any potential right to acquire such shares; Future Related Assets has the meaning ascribed thereto in Clause 3.3; Obligations means the Secured Obligations (as defined in the Credit Agreement), explicitly excluding the Parallel Obligations. For purposes of this Deed, to the extent required under Section 301 of each Supplemental Indenture, until such time as the Company shall cease to be subject to the covenants set forth therein (whether as a result of defeasance (legal or covenant), discharge, waiver, amendment or otherwise), " Secured Obligations" (as defined in the Credit Agreement) shall expressly include all Existing Note Obligations; provided, however, that such Existing Note Obligations shall not be deemed " Secured Obligations" (as defined in the Credit Agreement) to the extent an exception is otherwise available under the Supplemental Indentures (including, without limitation, under Section 301(a)(ix) or Section 301(c) thereof; Parallel Debt has the meaning mentioned in Clause 2 hereof; Parallel Obligations the full and prompt payment when due of any and all obligations to pay an amount of money (verplichtingen tot voldoening van een geldsom), whether present or future, actual or contingent, that may at any time be owing by the Pledgor or any one of them to the Pledgee under or pursuant to Clause 2 (Parallel Debt) of this Deed; Present Shares the one hundred and eighty-four (184)

Page 4 of 24


issued and outstanding ordinary shares, numbered 1 up to and including 184, with a nominal value of one hundred Euro (EUR 100) each, in the capital of the Company, of which one hundred and eighty (180) ordinary shares were all acquired by the Pledgor by a notarial deed of share transfer executed on the thirtieth day of October two thousand and two before P.H.N. Quist, civil law notary, officiating in Amsterdam, the Netherlands, of which ; one (1) ordinary share, numbered 181 has been acquired pursuant to a notarial share issue deed, executed before P.H.N. Quist, civil law notary officiating at Amsterdam, the Netherlands on the twenty-seventh day of May two thousand and four, one (1) ordinary share, numbered 182 has been acquired pursuant to a notarial share issue deed, executed before P.H.N. Quist, civil law notary officiating at Amsterdam, the Netherlands on the nineth day of August two thousand and four, one (1) ordinary share, numbered 183 has been acquired pursuant to a notarial share issue deed, executed before a substitute of P.H.N. Quist, civil law notary officiating at Amsterdam, the Netherlands on the twenty-second day of September two thousand and four and one (1) ordinary share, numbered 184 has been acquired pursuant to a notarial share issue deed, executed before P.H.N. Quist, civil law notary officiating at Amsterdam, the Netherlands on the thirty-first day of May two thousand and five; Related Assets has the meaning ascribed thereto in Clause 3.1 (ii) b; Shares means the Present Shares and the Future Shares; Second Supplemental Indenture means the Second Supplemental Indenture, dated the sixth day of June two thousand five, between the Company and The Bank of New York Trust Company, N.A., as trustee, but not as thereafter may be supplemented or amended; Secured Obligations means the Parallel Obligations and the Obligations to the extent owing to the

Page 5 of 24


Pledgee; Security Period means the period beginning on the date hereof and ending on the date on which all Secured Obligations have been irrevocably, fully and completely repaid or discharged in accordance with Clause 7.1 of this Deed; Supplemental Indenture means each of the First Supplemental Indenture and the Second Supplemental Indenture; Voting Event means the occurrence of an Enforcement Event which entitles the Administrative Agent to declare any of the Secured Obligations in whole or in part to be due and payable immediately or on demand and furthermore provided that the Administrative Agent, acting as aforementioned, has actually declared any of the Secured Obligations in whole or in part to be due and payable immediately or on demand; Voting Rights has the meaning ascribed thereto in Clause 3.8. 1.1 Save where the contrary is indicated, any reference in this Deed to: the " Pledgee" , the " Pledgor" or the " Administrative Agent" shall be construed so as to include its or their respective permitted successors, transferees and assigns pursuant to the terms of the relevant Loan Documents from time to time and any successor of such successor, transferee or assign in accordance with their respective interests; a. " Clause" shall, subject to any contrary indication, be construed as a reference to a clause hereof; the term " including" shall be construed as meaning " including without limitation" ; a " person" shall be construed as a reference to any person, firm, company, corporation, body corporate, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; " tax" shall be construed so as to include any tax, levy, impost, duty or other charge of a similar nature (including any penalty or interest payable in connection with any failure to pay or delay in paying any of the same); the " Credit Agreement" and this " Deed" or any other agreement or document shall, where applicable, be deemed to be a reference to the Credit Agreement, and this Deed, or such other agreement or document as the same may have been, or may from time to time be, extended, prolonged, amended, supplemented, renewed or novated; and 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 be from time to time, amended or re-enacted and all instruments, orders, plans, regulations, by-laws, permissions and directions at any time made thereunder.

Page 6 of 24


This Deed is deemed to be included in the definition of the Collateral Documents mentioned in the Credit Agreement. 1.2 Headings are for convenience of reference only. Where the context admits, the singular includes the plural and vice versa. 2. PARALLEL DEBT 2.1 Parallel Debt (a) Without prejudice to the provisions of the Credit Agreement and for the purpose of ensuring and preserving the validity and continuity of the security rights granted and to be granted by the Pledgor under or pursuant to this Deed the Pledgor hereby irrevocably and unconditionally undertakes to pay to the Pledgee amounts equal to and in the currency of the Obligations from time to time due by the Pledgor in accordance with the terms and conditions of the Loan Documents (such payment undertaking and the obligations and liabilities which are the result thereof the " Parallel Debt" ); (b) The Pledgor and the Pledgee acknowledge that (i) for this purpose the Parallel Debt constitutes undertakings, obligations and liabilities of the Pledgor to the Pledgee under this Deed which are separate and independent from, and without prejudice to, the corresponding Obligations which the Loan Parties have to any Beneficiary and (ii) that the Parallel Debt represents the Pledgee' s own claims (vorderingen op naam) to receive payment of the Parallel Debt, provided that the total amount which may become due under the Parallel Debt shall never exceed the total amount which may become due under the Obligations. (c) Every payment of monies made by a Loan Party to any Beneficiary shall (conditionally upon such payment not subsequently being avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, insolvency, liquidation or similar laws of general application) be in satisfaction pro tanto of the covenant by the Pledgor contained in Clause 2.1(a), provided that, if any such payment as is mentioned above is subsequently avoided or reduced by virtue of any provisions or enactments relating to bankruptcy, liquidation or similar laws of general application, the Pledgee shall be entitled to receive the amount of such payment from the Pledgor and the Pledgor shall remain liable to perform the relevant obligation and the relevant liability shall be deemed not to have been discharged. (d) Subject to the provision in Clause 2.1(c), but notwithstanding any of the other provisions of this Clause 2: (i) the total amount due and payable as Parallel Debt under this Clause 2 shall be decreased to the extent a Loan Party shall have paid any amounts to the Beneficiary to reduce the outstanding Obligations or any Beneficiary otherwise receives any amount in payment of the Obligations; and (ii) to the extent that the Pledgor shall have paid any amounts to the Pledgee under the Parallel Debt or the Pledgee shall have otherwise received monies in payment of the Parallel Debt, the total amount due and payable under the Obligations shall be decreased as if said amounts were received directly in payment of

Page 7 of 24


the Obligations. (e) The Pledgee, by signing this Deed, acknowledges the provisions of Clause 2.1 on behalf of the Loan Parties. (f) The Pledgee undertakes to distribute to the Loan Parties an amount equal to an amount collected or recovered by the Pledgee which it has applied in reduction of its claim under the Parallel Debt in accordance with the terms of this Deed, as if the corresponding claim under the Obligations of the Loan Parties has not been discharged. 2.2 Undertaking to Pledge The Pledgor and the Pledgee hereby agree that the Pledgor shall grant to the Pledgee for the benefit of the Beneficiaries, and, where it concerns the Parallel Debt, for the benefit of the Pledgee, the rights of pledge purported to be granted under or pursuant to this Deed. 2.3 Pledgee not an Agent The parties acknowledge that, save as indicated in Clause 2.1(e), the Pledgee acts in its own name and not as agent or representative of the Loan Parties or any of them and the rights of pledge created hereunder or pursuant hereto will not be held on trust. 2.4 Default Any failure to satisfy the Secured Obligations when due shall constitute a default ( verzuim ) in or in connection with the proper performance of the Secured Obligations, without any reminder letter ( sommatie ) or notice of default ( ingebrekestelling ) being sent or required. 3. PLEDGE OF THE CHARGED ASSETS 3.1 In order to secure and provide for the payment and discharge of all Secured Obligations, the Pledgor hereby pledges (verpandt) to the Pledgee for the duration of the Security Period: (i) by way of a right of possessory or disclosed pledge ( eerste vuistpandrecht of openbaar pandrecht ), free of all encumbrances (beperkte rechten) and attachments, one percent (1%) of the Present Shares, and the Pledgee hereby accepts such pledge; and (ii) by way of a right of possessory or disclosed pledge ( eerste vuistpandrecht of openbaar pandrecht ) and, insofar as no possessory or disclosed pledge is effectively created, hereby pledges to the Pledgee for the duration of the Security Period by way of a right of non-possessory or non-disclosed pledge ( eerste bezitloos of stil pandrecht ), free and clear of all encumbrances ( beperkte rechten ): (a) all cash dividends payable at any time hereafter on one percent (1%) of the Present Shares; and (b) all dividends (the cash dividends or interests thereon), rights, benefits, proceeds, monies (except for cash dividends) and other assets, accruing, distributed, issued or offered at any time by way of redemption, repurchase, dividend, bonus, preference, pre-emption, conversion, capitalisation of profits or reserves, substitution, exchange, option right or otherwise (including but not limited to upon the dissolution or liquidation of the Company) in respect of one percent (1%) of the Present Shares (or in respect of any dividends, shares, rights, benefits, proceeds, monies or other assets previously accruing, offered or issued as referred to

Page 8 of 24


in this paragraph) and all proceeds of any and all of the foregoing including, but without limitation, proceeds that constitute assets of the types described above (all of the foregoing hereinafter referred to collectively as " Related Assets" ); to the extent that such dividends or Related Assets accrue on or after the date of this Deed. The Pledgee hereby accepts such pledge. 3.2 In order to further secure and provide for the payment and discharge of all Secured Obligations, the Pledgor hereby, subject to the Condition Precedent A, pledges (verpandt) to the Pledgee for the duration of the Security Period, in addition to the percentage of the Present Shares and Related Assets referred to above in Clause 3.1: (i) by way of a right of possessory or disclosed pledge ( eerste vuistpandrecht of openbaar pandrecht ), free of all encumbrances (beperkte rechten) and attachments, sixty-four percent (64%) of the Present Shares, and the Pledgee hereby accepts such pledge; and (ii) by way of a right of possessory or disclosed pledge ( eerste vuistpandrecht of openbaar pandrecht ) and, insofar as no possessory or disclosed pledge is effectively created, by way of a right of non-possessory or non-disclosed pledge ( eerste bezitloos of stil pandrecht ), free and clear of all encumbrances ( beperkte rechten ): (a) all cash dividends payable at any time hereafter on sixty-four percent (64%) of the Present Shares; and (b) all dividends (the cash dividends or interests thereon), rights, benefits, proceeds, monies (except for cash dividends) and other assets, accruing, distributed, issued or offered at any time by way of redemption, repurchase, dividend, bonus, preference, pre-emption, conversion, capitalisation of profits or reserves, substitution, exchange, option right or otherwise (including but not limited to upon the dissolution or liquidation of the Company) in respect of sixty-four percent (64%) of the Present Shares (or in respect of any dividends, shares, rights, benefits, proceeds, monies or other assets previously accruing, offered or issued as referred to in this paragraph) and all proceeds of any and all of the foregoing including, but without limitation, proceeds that constitute assets of the types described above (all of the foregoing hereinafter referred to collectively as " Conditional Related Assets" ); to the extent that such dividends or Conditional Related Assets accrue on or after the date of this Deed. The Pledgee hereby accepts such pledge. The Pledgee is authorized to notify the fulfillment of the Condition Precedent A as a result of which the rights of pledge described in this Clause 3.2 to the Company. 3.3 To the extent legally possible, to further secure and provide for the payment and discharge of all Secured Obligations, the Pledgor hereby pledges ( verpandt ) to the Pledgee for the duration of the Security Period by way of a right of possessory or disclosed pledge ( eerste vuistpandrecht of openbaar pandrecht ) and, insofar as no possessory or disclosed pledge is

Page 9 of 24


effectively created, hereby for the duration of the Security Period by way of a right of non-possessory or non-disclosed pledge ( eerste bezitloos of stil pandrecht ) free and clear of all encumbrances ( beperkte rechten ): (i) pledges to the Pledgee one percent (1%) of all Future Shares, where applicable all cash dividends payable on such Future Shares and all Related Assets in respect of such Future Shares where applicable; (ii) subject to the Condition Precedent A, in addition to the percentage of the Future Shares, where applicable all cash dividends payable on such Future Shares and all Related Assets in respect of such Future Shares where applicable referre
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  3.88.220.93