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EXHIBIT 10.6
JUNE 3, 1999
PIONEER FOREST, INC.
OVERSEAS PRIVATE INVESTMENT CORPORATION
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CONTRACT OF PLEDGE OF SHARES IN
CLOSED JOINT STOCK COMPANY
"FOREST-STARMA"
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CONTENTS
CLAUSE PAGE
1. INTERPRETATION.............................................................4
Definitions................................................................4
Interpretation.............................................................5
Headings...................................................................6
2. ACKNOWLEDGEMENT OF INDEBTEDNESS OF THE COMPANY.............................6
3. PLEDGE.....................................................................6
Pledge.....................................................................6
Assurance..................................................................7
4. PLEDGE IN ACCORDANCE WITH THIS CONTRACT AND OTHER RIGHTS...................7
5. DUTIES OF THE PLEDGOR......................................................7
Duties.....................................................................7
Warranty..................................................................10
Rights....................................................................10
6. RIGHTS OF OPIC............................................................10
Failure to Perform Conditions of Finance Agreement........................10
Exercise of Rights........................................................10
Levy of execution.........................................................11
7. APPLICATION OF PROCEEDS...................................................11
Accounts..................................................................12
8. PROTECTION OF RIGHTS OF OPIC..............................................12
9. ADDITIONAL ASSURANCES AND POWER OF ATTORNEY...............................12
Additional Assurances.....................................................12
Powers of Attorney........................................................13
10. OBLIGATIONS IN ACCORDANCE WITH THIS CONTRACT SHALL NOT LEAD TO
MERGER OR COMBINING OF RIGHTS OF PLEDGE...................................13
11. CHANGE OF NAME............................................................14
12. AVOIDANCE OF PAYMENTS.....................................................14
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13. NOTIFICATIONS AND DEMANDS.................................................14
14. CONCLUDING PROVISIONS.....................................................14
Evidence of Indebtedness..................................................14
Supplementary Nature of Rights; Waiver of Right...........................15
Consequences of Invalidity of Any Provision of this Contract..............15
15. APPLICABLE LAW............................................................15
16. ARBITRATION AND JURISDICTION..............................................15
Arbitration; Rules; Venue; Language.......................................15
Arbitrators; Selection; Qualification.....................................16
Law.......................................................................16
Statements of Claim and Defence; Representation; Proceedings..............16
Awards....................................................................17
Costs, Fees and Expenses..................................................17
No Waiver.................................................................17
17. COUNTERPARTS..............................................................18
ANNEX 1.......................................................................19
ANNEX 2.......................................................................20
ANNEX 3.......................................................................21
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CONTRACT OF PLEDGE OF SHARES IN CLOSED JOINT STOCK COMPANY
Concluded on June 3, 1999 between:
PIONEER FOREST, INC., a company organised and existing under the laws of the
State of Delaware in the United States of America (hereinafter the PLEDGOR); and
OVERSEAS PRIVATE INVESTMENT CORPORATION (hereinafter called OPIC).
The Pledgor and OPIC have come to the following agreement:
INTERPRETATION
DEFINITIONS
1.1 For the purposes of this Contract the terms defined in the Finance Agreement
shall have the same meaning as if they had been used in this Contract and the
following terms shall have the following meaning unless the context and content
of this Contract require otherwise:
ACCELERATION EVENT means any one of the events specified in Section 7.1 of the
Finance Agreement and any event which, with lapse of time or notice and lapse of
time, may become such an event;
COMPANY means Closed Joint-Stock Company "FOREST-STARMA", a closed joint-stock
company, (registered by Decree No. 349 of the Head of Administration of
Khabarovsky Krai dated 21 July 1992), registered and operating in conformity
with the legislation of the Russian Federation, whose legal address is at ul.
Chekhova, d.l, apt.3, Vanino Settlement, Khabarovsk Territory, Russian
Federation 682860;
FINANCE AGREEMENT means the Finance Agreement of 21 December 1995 between the
Company and OPIC and any promissory note drawn up on the basis of the Finance
Agreement, including in each instance any changes and additions thereto,
including any changes in accordance with which obligations of the Company grow
or increase or are affected in any other way;
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MEANS OF SECURING OBLIGATIONS means any method of securing obligations by way of
mortgage, hypotheque, pledge, pawn, possessory lien, right of set-off of
obligations or any other way in accordance with the law of any State or the
agreement of the parties;
PLEDGE means the pledge created by this Contract;
PLEDGED SHARES means all of the shares, listed and described in Annex 1 to this
Contract, all and any of the rights under or in relation to the shares, listed
and described in Annex 1 to this Contract, and all other shares of the Company,
issued or which are to be issued by the Company and which the Pledgor will
acquire or has the right to acquire in its ownership;
RIGHTS means with respect to OPIC its powers, discretions, and rights in
accordance with this Contract, the Finance Agreement and Russian law;
SECURED AMOUNTS means:
(a) money and other obligations which the Company is obliged to pay or to
fulfil under the Finance Agreement and other documents related to the
Finance Agreement as acknowledged by the Pledgor under Section 2 below;
and
(b) the obligations of the Pledgor to OPIC under this Contract and/or any
other Financing Documents to which the Pledgor is party,
and where the context so requires references to Secured Amounts shall include
references to any such obligations.
INTERPRETATION
1.2 In this Contract and Annexes thereto in all instances except those when
the context requires otherwise:
(a) references and/or mentions of OPIC, the Pledgor and the Company include
respectively references and/or mentions of their legal successors and
persons to whom by legal means the rights and duties of OPIC, the
Pledgor and the Company have passed;
(b) references to a document shall include any document possessing legal
force (including this Contract), any securities, statements,
certificates, notices, or any other documents; in so doing the
references to a document shall mean those references to a document or
any provision thereof in changed,
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supplemented, or otherwise renewed form, or substituted by consent of
the parties (in whole or in part);
(c) references to any law or normative act shall mean references to the law
or normative act in changed or supplemented form or to a newly adopted
law or normative act replacing a previous law or normative act; and
(d) references to any specific Section, paragraph, or Annex shall mean
references to the specific Section, paragraph of, or Annex to this
Contract.
HEADINGS
1.3 Headings in this Contract have been included exclusively for the convenience
of work with the text and shall not affect the interpretation of the provisions
of this Contract.
ACKNOWLEDGEMENT OF INDEBTEDNESS OF THE COMPANY
2. The Pledgor acknowledges (without thereby becoming a guarantor or surety in
respect thereof) that the Company has agreed to repay to OPIC the principal debt
comprising $9,300,000 (nine million three hundred thousand) US dollars (or such
lesser amount as may be outstanding from time to time) and interest thereon by
15 December 2003 in accordance with the Finance Agreement; to fulfil all
financial, as well as all other, obligations with respect to OPIC which
periodically are subject to performance or which arise (either before or after
the demand of OPIC for payment) on the basis of the Finance Agreement and/or on
the basis of other Financing Documents to which the Company and OPIC are
parties.
PLEDGE
PLEDGE
3.1 As a means of securing obligations of the Company to pay the Secured Amounts
and to secure the Pledgor's obligations in favour of OPIC on the basis of this
Contract and/or other agreements related to the Finance Agreement, the Pledgor
pledges the Pledged Shares and all the rights under or in relation to the
Pledged Shares to OPIC in accordance with the Law on Pledge No. 2872-1 of 29 May
1992 and the Civil Code of the Russian Federation of 21 October 1994. The Pledge
hereby created is a pledge of rights.
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ASSURANCE
3.2 The Pledgor assures OPIC and confirms that the Pledged Shares are not the
subject of pledge to the benefit of other persons and no demands whatever have
been made by anyone in the respect of the Pledged Shares other than OPIC and
that OPIC becomes the exclusive pledgeholder of first ranking with respect to
the Pledged Shares.
3.3 The Pledgor assures OPIC and confirms that it holds full ownership rights to
all of the Pledged Shares as at the date of this Contract.
PLEDGE IN ACCORDANCE WITH THIS CONTRACT AND OTHER RIGHTS
4. This Pledge shall be without prejudice and in addition to any other Means of
Securing Obligations whatsoever which may be held by OPIC or granted to OPIC by
the Pledgor or the Company or any person for or in respect of the whole or part
of the Secured Amounts; and the charges, covenants and provisions contained
herein shall remain in force as continuing security to OPIC until the Secured
Amounts have been paid in full. When the Secured Amounts have been repaid in
full, and subject to OPIC being satisfied that no payment received by OPIC may
be avoided or adjusted in the circumstances described in Section 12 hereof, OPIC
shall upon the request of the Pledgor issue an absolute and unconditional
release of this Pledge.
DUTIES OF THE PLEDGOR
DUTIES
5.1 Until the Secured Amounts have been paid in full and the Company has been
released by OPIC from its related obligations, the Pledgor shall be obliged:
(a) not to use the Pledged Shares as the subject of securing other
obligations, nor to create, or permit to be created, a pledge
(irrespective of the ranking thereof), a trust, or any other right of
demand with respect to or in connection with the Pledged Shares,
whether by virtue of law or any other legally binding act or by virtue
of a contract to the benefit of anyone whatever except for OPIC;
(b) without receiving the prior written consent of OPIC, not to transfer,
sell, or transfer rights or otherwise alienate, or terminate its
possession or management, or perform actions leading to or which might
lead to the transfer, sale or transfer of rights or alienation or
termination of possession
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or management of the Pledged Shares by the Pledgor or to the
termination or change of any rights of the Pledgor to the Pledged
Shares in any form;
(c) to make payment without delay and to ensure the payment of all taxes,
duties, obligatory payments for authorisations, rights and licences
granted, registration payments and duties, insurance payments, and also
any other payments calculated in connection with or relating in any way
to the Pledged Shares and/or to this contract, and at first demand to
provide certificates and evidence to OPIC of all the said payments
being made;
(d) immediately communicate to OPIC in writing any and all notices and
information received by the Pledgor or the Company and affecting:
(i) any proposals concerning the obligatory acquisition by anyone
of all or any of the Pledged Shares, or proposals concerning
the obligatory transfer to anyone of the right of ownership to
all or any of the Pledged Shares;
(ii) any proposals concerning the obligatory termination or
restrictions of any nature on payment of dividends on all or
any of the Pledged Shares;
(iii) any court proceeding (or any other proceeding or bringing of
suits or claims which might lead to a court proceeding) with
respect to all or any of the Pledged Shares;
and exclusively at the expense of the Pledgor to take measures and
undertake such actions with respect to the aforesaid proposals,
applications, court proceedings, other proceeding, suits, claims and
the like which OPIC may, at its discretion, reasonably demand of the
Pledgor;
(e) except for instances of receiving the prior consent of OPIC, which will
not be refused without reasonable grounds therefor, not to conduct
negotiations nor to settle any suits or claims to receive compensation
pertaining to the Pledged Shares (including in accordance with any
regulatory acts and in all other instances), or any suits or claims
with regard to any insurance agreements relative to all or any part or
parts of the Pledged Shares, or any other material compensation or
insurance payments pertaining thereto;
(f) to fulfil in a timely way all obligations which by virtue of law have
or might have preference to the obligations under this Contract;
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(g) to maintain a record of this Pledge as required by Section 18 of the
Law on Pledge No. 2872-1 of 29 May 1992 and allow third persons to be
aware of the existence of this Pledge in accordance with applicable
law;
(h) pay to OPIC, upon demand, the amount of all expenses which it may incur
in, about or with a view to registering or enforcing this Pledge or
otherwise in connection with this Pledge;
(i) promptly pay all calls, installments and other payments which may be
made or become due in respect of the Pledged Shares;
(j) forthwith sign, seal, deliver and complete all transfers, proxies,
mandates, assignments and documents and do all acts and things which
OPIC may, in its absolute discretion, at any time and from time to time
specify:
(i) for enabling or assisting OPIC to improve its rights to and
security over the Pledged Shares;
(ii) to exercise (or enable its nominee or nominees to exercise)
any rights or powers attaching to the Pledged Shares;
(iii) (in accordance with Section 6 below) to sell or dispose of
the Pledged Shares; or
(iv) otherwise to enforce any of the rights of OPIC under or in
connection with this Pledge;
(k) forward to OPIC all material notices, reports, accounts, circulars and
other documents relating to the Pledged Shares or which are sent to the
holders of the Pledged Shares as soon as they are received;
(l) after an Acceleration Event has occurred and OPIC has sent to the
Company a demand for payment of the Secured Amounts (or part thereof)
take such action as OPIC may in its absolute discretion direct, in
respect of any proposed compromise, arrangement, capital
reorganisation, exchange, repayment or take-over offer affecting or in
respect of the Pledged Shares or any of them or any proposal made for
varying or abrogating any rights attaching to the Pledged Shares or any
of them;
(m) indemnify OPIC (and any of their nominees) on demand from and against
any claims by third parties which any of them may incur as holders of
the Pledged Shares or any interest in the Pledged Shares while the
Pledged
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Shares are held as security hereunder and resulting from any claim
which arose while held as security hereunder; and
(n) promptly on execution of this Contract to give notice to the Company in
the form set out in Annex 2 to this Contract, and procure that a
confirmation in the form set out in Annex 3 is delivered to OPIC.
WARRANTY
5.2 The Pledgor warrants that it has complied with and will comply with all the
necessary registration requirements in relation to the registration and issuance
of the Pledged Shares.
RIGHTS
5.3 Notwithstanding anything expressed or implied in Section 5.1 or elsewhere in
this Contract, until any of the events or circumstances specified in Section 6
of the Finance Agreement occur and OPIC has sent to the Company a demand for
payment of the Secured Amounts (or part thereof), the Pledgor shall be entitled
to exercise all voting and other rights and powers (by statute or otherwise)
attached to or conferred on the Pledged Shares and to receive and retain all
dividends and other distributions paid or distributed in respect of the Pledged
Shares.
RIGHTS OF OPIC
FAILURE TO PERFORM CONDITIONS OF FINANCE AGREEMENT
6.1 If an Acceleration Event occurs, OPIC shall have the right (but in no event
is it obliged to take nor does it bear responsibility for taking the measures
enumerated below and without prejudice to any rights of OPIC whatever) in the
name of the Company or otherwise to ensure the fulfilment of the obligations of
the Company and to take such measures which OPIC in its discretion considers
appropriate to rectify the existing situation.
EXERCISE OF RIGHTS
6.2 If an Acceleration Event occurs, and OPIC has sent to the Company a demand
for payment of the Secured Amounts (or part thereof), then:
(a) all and any dividends and other distributions accruing on or deriving
from the Pledged Shares which are thereafter paid or distributed
(notwithstanding that they may have accrued in respect of an earlier
period) shall:
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(i) if received by the Pledgor (or any nominee of the Pledgor) be
held on trust and forthwith paid and transferred to OPIC; and
(ii) when and if received by OPIC (or their nominee) shall form
part of the Pledged Shares and be held by OPIC on the terms of
this Pledge as additional security (and, if cash, be paid into
a cash collateral deposit account and may be applied by OPIC
at any time and from time to time thereafter in or towards the
discharge of the Secured Amounts as OPIC thinks fit);
(b) OPIC may from time to time exercise (and may from time to time direct
the exercise of) all voting and other rights and powers (by statute or
otherwise) attached to or conferred on the Pledged Shares in such
manner as OPIC (in their absolute discretion) thinks fit and the
Pledgor shall, and shall procure that any nominee of the Pledgor shall,
comply with any such directions of OPIC;
(c) the Pledgor shall (and shall procure that any nominee of the Pledgor
shall) forthwith agree to accept instruction or order for and to attend
all or any meetings of the holders of the Pledged Shares, to appoint
proxies and exercise all voting and other rights and powers which may
at any time be exercisable by the holders of the Pledged Shares as OPIC
may from time to time direct.
LEVY OF EXECUTION
6.3 If an Acceleration Event occurs and OPIC has sent to the Company a demand
for payment of the Secured Amounts (or part thereof), then OPIC may levy
execution on the Pledged Shares in accordance with the procedure established by
Russian law. To the extent that the parties are free to choose the tribunal to
commence execution proceedings, the parties choose arbitration in accordance
with Section 16.
APPLICATION OF PROCEEDS
7.1 All cash assets received as a result of the exercise of the rights of OPIC
pursuant to this Contract and all other cash assets received by OPIC in
connection with this Pledge after handing over to the Company a demand for
payment of the Secured Amounts (taking into account the need to satisfy other
demands which might have priority ahead of the obligations under this Contract)
shall be applied to make payments in the following order:
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(a) the amount of all expenses, costs, demands for payment, obligations,
and the like paid, incurred or presented for payment to OPIC and which
are Secured Amounts;
(b) all other amounts comprising Secured Amounts, in the order determined
by OPIC;
(c) payments to the benefit of the Company if OPIC is not required to make
any payments in favour of other persons in accordance with the laws of
any State.
ACCOUNTS
7.2 Notwithstanding Section 7.1, all and any cash assets coming to OPIC from the
Pledgor or the Company or from any other person making payments with regard to
obligations or in connection with obligations of the Company or the Pledgor or
otherwise relating to the realisation or the exercise of the rights with respect
to the Pledged Shares in accordance with this Contract may be credited by OPIC
as a whole or in any proportion at the discretion of OPIC to any account or item
of account or may be applied by OPIC to cover obligations of the Company and the
Pledgor with regard to any other transactions and, without limitation, OPIC may
at its discretion at any time insofar as all Secured Amounts have not been paid
to OPIC credit in a separate or a suspense account as collateral security any
cash assets received by OPIC from the Company or the Pledgor or other persons in
connection with this Contract for so long and in the manner as OPIC considers
acceptable, and such may be applied by OPIC at any time and from time to time
thereafter in or towards discharge of the Secured Amounts as OPIC thinks fit.
PROTECTION OF RIGHTS OF OPIC
8. OPIC shall not bear responsibility for any loss, causing of damage or harm
which is the result of the exercise, or the intention to exercise, or the
failure to exercise, or the impossibility to exercise, any of the respective
Rights.
ADDITIONAL ASSURANCES AND POWER OF ATTORNEY
ADDITIONAL ASSURANCES
9.1 The Pledgor agrees that at any time (and for the purposes designated in
paragraph (a) below even if OPIC has not sent demands to make payment of the
Secured Amounts or the performance of other obligations) at the first demand of
OPIC, at the expense of the Company, to sign any legally binding document or to
undertake legally binding actions which:
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(a) OPIC may direct for the purposes of ensuring the validity, legality,
and ranking of the Pledge or any other Means of Securing Obligations
received or which should have been received in accordance with this
Contract; or
(b) OPIC may direct and which are reasonably necessary in the opinion of
OPIC in order to exercise any of the Rights.
POWERS OF ATTORNEY
9.2 For the purposes of securing the Rights of OPIC to the Pledged Shares and
the performance of obligations and duties of the Pledgor to OPIC both under this
Contract and others, the Pledgor shall be obliged upon the first demand of OPIC
to appoint (by a power of attorney, the form and content of which must be
approved by OPIC) OPIC to be the representative (possessing the full right to
appoint deputies and the right to further delegate any powers, including the
right to transfer powers to a person appointed by a deputy, to make further
appointments, in all instances with respect to all or part of the Pledged
Shares) of the Pledgor (the Pledgor shall be obliged also to renew such power of
attorney or powers of attorney when this is necessary in order to ensure their
validity) and in the name of the Pledgor or otherwise to sign legally binding
documents or to perform actions having legally binding consequences which OPIC
(or their deputies or other empowered persons) considers, in its opinion, to be
appropriate in connection with the exercise of any rights of OPIC or which the
Pledgor is obliged to create for the benefit of OPIC on the basis of this
Contract or other related agreements. No such power of attorney shall extend to
or include any of the rights pertaining to the Pledgor under Section 5.3.
OBLIGATIONS IN ACCORDANCE WITH THIS CONTRACT SHALL NOT LEAD TO MERGER OR
COMBINING OF RIGHTS OF PLEDGE
10. The rights contained in this Contract or created in accordance with this
Contract shall serve as an addition (and in no event either excluding or
affecting) to other rights of pledge, the right to levy execution, the right to
set-off counter-obligations, the right to combine obligations or any other
rights of OPIC which it may acquire in the future (or shall have in addition to
the Pledge arising under this Contract, or other rights in relation to this
Contract) with respect to the Company or the Pledgor or any other person in
connection with the Secured Amounts. OPIC shall have the right at any time to
create, waive, exercise, change, exchange or refrain from the registration or
other analogous procedures or the creation of any other Means of Securing
Obligations without affecting in so doing or limiting the rights under this
Contract. OPIC does not and shall not bear responsibility to the Pledgor for any
damage which is the result of the failure of
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OPIC to take measures with regard to the use of or failure to use its rights or
the procedure or means to exercise them or the avoidance of or refraining from
the exercise of any of its rights as pledgeholder.
CHANGE OF NAME
11. This Contract shall remain in force and its performance may be secured
irrespective of whether the name, composition, form, or status (or legal status)
of OPIC, the Company or the Pledgor changes, whether there occurs the merger or
association in any form of OPIC, the Company or the Pledgor with another person
or enterprise irrespective of its form, whether any changes occur in the
organisation of the Pledgor, the Company or any of their participants
(stockholders).
AVOIDANCE OF PAYMENTS
12. If any payment is avoided or changed in accordance with norms of law,
including any act relating to the regulation of insolvency (bankruptcy), no
release from obligations or settlement of obligations or claims performed by
OPIC on the basis of such payment shall affect in any way the rights of OPIC to
receive the Secured Amounts from the Company or the Pledgor or to exercise its
rights under this Contract in order to receive all of the Secured Amounts.
NOTIFICATIONS AND DEMANDS
13. The provisions of Section 8.1 of the Finance Agreement shall be an integral
part of this Contract and shall be subject to application to this Contract
mutatis mutandis.
CONCLUDING PROVISIONS
EVIDENCE OF INDEBTEDNESS
14.1 In any petition to sue, examination, or claim relating to this Contract or
to the rights of pledge under this Contract, a statement concerning the need to
perform any payment to the benefit of OPIC, or a payment of all, part, or parts
of the Secured Amounts, which is confirmed by personnel of OPIC is, excluding
instances of obvious or incontestable mistakes, prima facie evidence of the
Company's indebtedness in the amount designated therein.
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SUPPLEMENTARY NATURE OF RIGHTS; WAIVER OF RIGHT
14.2 The rights and powers which this Contract grants to OPIC shall supplement
one another, may be exercised as often as OPIC wishes, and supplement their
respective rights in accordance with general norms of law (irrespective of
whether they arise under this Contract or in accordance with law and subordinate
acts). OPIC may waive such rights; however such waiver must be expressed (and
not implied) and be in writing and, in particular, any failure to use or
impossibility of use of any rights, or delay in the use of rights, shall not
mean and may not be construed as a waiver of any of such rights; any improper or
partial exercise of such rights shall not terminate or preclude the possibility
of the exercise of such rights or any other rights in the future or in other
instances and circumstances; and no action or behaviour or agreement through
negotiations with the participation of OPIC or persons acting in its name shall
prevent OPIC from exercising any of their rights and shall not mean the
suspension or change of the character, form, and content of any of such rights
or of such rights as a whole.
CONSEQUENCES OF INVALIDITY OF ANY PROVISION OF THIS CONTRACT
14.3 If any of the provisions of this Contract becomes or are deemed to be void,
not conforming to law, or the enforcement of which is impossible in a judicial
proceeding in accordance with any norm of law, the validity, conformity to law
and legal effect of other provisions shall in no event be brought into doubt nor
affected, and all such provisions shall remain in force.
APPLICABLE LAW
15. The applicable law of this Contract shall be the law of the Russian
Federation.
ARBITRATION AND JURISDICTION
ARBITRATION; RULES; VENUE; LANGUAGE
16.1 Any dispute, controversy or claim arising out of, or relating to, or in
connection with, this Contract (including the breach, termination or validity
hereof or thereof), and any dispute concerning the scope of this arbitration
clause, may, at the option of OPIC and upon written notice to the Pledgor, be
referred to for final settlement by arbitration. Such arbitration proceedings
shall be conducted in accordance with the International Arbitration rules of the
International Chamber of Commerce (ICC) in effect on the date on which the
arbitration commences (the RULES). The seat of the arbitration shall be the City
of New York, New York,
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unless OPIC directs that the place of arbitration shall instead by Washington,
DC or London. The arbitration shall be conducted in the English language. Upon
the Pledgor's receipt of a notice from OPIC of its election to settle by
arbitration any dispute, controversy or claim pursuant to this Section 16, the
Pledgor shall be obliged to settle such dispute, controversy or claim as
provided in this Section 16. If any dispute, controversy or claim is referred to
arbitration by OPIC, the Pledgor hereby agrees to the jurisdiction of the
arbitral panel with respect to such dispute, controversy or claim to the
exclusion of the courts of the Russian Federation or any other jurisdiction.
ARBITRATORS; SELECTION; QUALIFICATION
16.2 The arbitration shall be conducted by three arbitrators. OPIC and the
Pledgor shall each appoint one arbitrator, and each shall notify the other of
the name of its appointee within 60 days of the date of OPIC's notice to the
Pledgor. The two arbitrators appointed by OPIC and the Pledgor shall together,
within 60 days after the date on which the first two arbitrators were required
to be appointed, appoint the third, presiding arbitrator. If OPIC and the
Pledgor fail to appoint any arbitrator within the time limits provided
hereunder, such arbitrators shall upon the written request of OPIC or the
Pledgor, be appointed by the President of the ICC. Each arbitrator shall be
fluent in the English language, shall be a disinterested person, and shall be an
attorney qualified to practice law in the State of New York or the District of
Columbia for a minimum of 5 years, with experience in representing lenders and
borrowers in international project finance lending to private sector borrowers.
OPIC or the Pledgor may, within 10 days of notice of an appointment, challenge
the appointment of an arbitrator as lacking the qualifications set forth in the
preceding sentence pursuant to the procedures prescribed by the rules. Any
determination by the ICC as to qualification shall be final and binding and not
subject to judicial review. If an arbitrator must be replaced for any reason,
the appointing party shall endeavour to appoint a substitute within a reasonable
time.
LAW
16.3 Each arbitral panel established hereunder shall make its decisions entirely
on the basis of this Contract or Finance Agreement, as applicable, the governing
law provisions provided herein or therein, and the Rules.
STATEMENTS OF CLAIM AND DEFENCE; REPRESENTATION; PROCEEDINGS
16.4 OPIC shall communicate its statement of claim in writing to the Pledgor and
the arbitral panel within a period of time to be determined by the panel. The
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Pledgor shall file a statement of defence in writing following receipt of OPIC's
statement of claim within a period of time to be determined by the panel. The
parties may be represented or assisted by legal counsel of their choice. The
arbitral panel shall determine a date on which it shall commence taking
evidence, which date shall not be less than 60 days after the Pledgor's
submission of its statement of defence, unless OPIC directs otherwise. Where the
Rules do not provide for a particular situation, the arbitral panel shall by a
majority, in its absolute discretion, determine the course of action to be
followed and its decision shall be final.
AWARDS
16.5 The arbitral panel shall issue a written decision and award within 60 days
after the conclusion of the relevant proceedings. Any award of the arbitral
panel shall be final and binding, and judgment upon any arbitral award may be
entered and enforced by any court or judicial authority of competent
jurisdiction. Any money award shall be made and shall be payable in US dollars.
The award shall be limited to the scope of the submission and in no
circumstances shall the arbitral panel render an award ex aequo et bono or as
amiable compositeur. If either party wishes to submit a request that the
arbitral panel interpret the award or correct any clerical, typographical or
computation errors, or make an additional award as to claims presented but
omitted from the award, such request shall be submitted to the arbitral panel
and the other party within 10 days after the award. If the panel considers such
request justified, after considering the contention of the parties, the panel
shall promptly comply with such request. The arbitral panel. OPIC or the Pledgor
shall not be entitled to seek from any judicial authority or take any interim
measures or provide any preaward relief against OPIC or the Pledgor,
notwithstanding any contrary provisions in the Rules.
COSTS, FEES AND EXPENSES
16.6 Each party shall pay its own costs, fees and expenses.
NO WAIVER
16.7 In invoking any arbitration pursuant to this Section 16, OPIC shall not be
deemed to have waived any rights, immunities or privileges to which it or any of
its directors, officers or employees are entitled. By submitting to arbitration,
OPIC shall not be deemed to have submitted to the jurisdiction of any court
other than the United States Court of Claims in Washington DC.
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18
COUNTERPARTS
17. This Contract may be executed in two counterparts, each of which shall be
deemed an original, but both of which together shall constitute one and the same
Contract.
This Contract has been concluded by the Pledgor and by OPIC on June , 1999, in
two copies in the English language and two copies in the Russian language, each
of which has identical legal force.
Legal addresses of the parties:
Pledgor: OPIC:
Pioneer Forest, Inc. Overseas Private Investment Corporation
60 State Street 1100 New York Avenue NW
Boston, MA 02109-1820 Washington DC 20627-0001
USA USA
SIGNED by )
/s/ Stephen G. Kasnet )
for and on behalf of )
PIONEER FOREST, INC. )
SIGNED by )
/s/ Steven S. Smith )
for and on behalf of )
OVERSEAS PRIVATE )
INVESTMENT CORPORATION )
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19
ANNEX 1
(BEING AN INTEGRAL PART OF THE CONTRACT OF PLEDGE OF SHARES
BETWEEN PIONEER FOREST, INC. AND OVERSEAS PRIVATE INVESTMENT
CORPORATION OF JUNE , 1999)
PLEDGED SHARES
DESCRIPTION VALUE(1)
1455 ordinary registered shares (common stock) in Closed USD18,300,000
Joint-Stock Company "FOREST-STARMA" with a
nominal value of 1 Rouble each
SIGNED by )
/s/ Stephen G. Kasnet )
for and on behalf of )
PIONEER FOREST, INC. )
SIGNED by )
/s/ Steven S. Smith )
for and on behalf of )
OVERSEAS PRIVATE )
INVESTMENT CORPORATION )
- --------------------------------------------------------------------------------
(1) The value of the Pledged Shares designed in this Annex is the value of the
Pledged Shares, the amount of which has been agreed by OPIC and the Pledgor,
based on the audited balance sheet of Closed Joint-Stock Company "FOREST-STARMA"
as of 31 December 1998. The value of the Pledged Shares at the moment of the
exercise of the rights of OPIC shall be equal to the price of such shares
received by OPIC after the sale or realisation by other means of the Pledged
Shares, taking into account the location and condition of the assets of the
Pledgor at the moment of the exercise of the rights of OPIC.
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20
ANNEX 2
(BEING AN INTEGRAL PART OF THE CONTRACT OF PLEDGE OF SHARES
BETWEEN PIONEER FOREST, INC. AND OVERSEAS PRIVATE INVESTMENT
CORPORATION OF JUNE , 1999)
NOTICE OF PLEDGE
From: PIONEER FOREST, INC.
To: Closed Joint-Stock Company "FOREST-STARMA"
Copy to: Overseas Private Investment Corporation
Dear Sirs,
We hereby give you notice that by a Contract of Pledge of Shares dated [_____
_____] and made between this Company (the PLEDGOR) and Overseas Private
Investment Corporation, (OPIC) we have pledged absolutely to OPIC all our
rights, title and interest in and to the shares held by the Pledgor in Closed
Joint-Stock Company "FOREST-STARMA".
Unless and until OPIC has sent you a demand for payment following the occurrence
of an event of default in accordance with Section 7 of the Finance Agreement
between OPIC and you, we retain the right and all and any dividends and other
distributions accruing to the pledged shares and to all voting and other rights.
This notice and the instructions herein contained are irrevocable. Please
acknowledge receipt of this notice to OPIC on the enclosed consent to pledge.
Yours faithfully,
.........................
For and on behalf of
Pioneer Forest, Inc.
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21
ANNEX 3
(BEING AN INTEGRAL PART OF THE CONTRACT OF PLEDGE OF SHARES
BETWEEN PIONEER FOREST, INC. AND OVERSEAS PRIVATE INVESTMENT
CORPORATION OF JUNE , 1999)
ACKNOWLEDGEMENT OF PLEDGE
From: Closed Joint-Stock Company "FOREST-STARMA"
To: Overseas Private Investment Corporation
[ ] 19[ ]
Dear Sirs,
We acknowledge receipt of a notice of pledge dated [_____ _____] (the NOTICE)
from Pioneer Forest, Inc. (the PLEDGOR) and confirm that the Notice is adequate
notice of a Contract of Pledge of Shares dated [_____ _____] and we further
acknowledge that the Notice is effective to confer on you, subject to the
pledge, all the rights, title and interest of the Pledgor under the Contract of
Pledge of Shares dated [_____ _____] between the Pledgor and this Company and
that the issuance of shares has been registered in accordance with applicable
laws.
Notice of Pledge has been entered on the register of shareholders of which the
relevant extract is attached hereto.
Yours faithfully,
..........................
and
..........................
For and on behalf of
Closed Joint-Stock Company "FOREST-STARMA"
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