EXHIBIT 10.13


 


	
   

  	
  DATED

  	
   

  	
  June 24,
  2004

  



 


 


BURDALE
FINANCIAL LIMITED


 


and


 


VIEWSONIC EUROPE LIMITED


 


and


 


FURNESS
LOGISTICS B.V.


 


 










 


THIRD
PARTY PLEDGEHOLDER AGREEMENT


 










 


 


Nabarro
Nathanson


Lacon House


Theobald’s
Road


London  WC1X 8RW


 


Tel:  020
7524 6000


 
















 


THIRD PARTY PLEDGEHOLDER AGREEMENT


 


DATE JUNE 24, 2004


 


PARTIES


 


(1)                        BURDALE FINANCIAL LIMITED a
company incorporated and existing under laws of England, having its registered
office at 53 Queen Anne Street, London W1G 9HP (registered in England and Wales
under number 2656007), represented for the purposes hereof by Nigel Hogg (the “Pledgee”);


 


(2)                        VIEWSONIC EUROPE LIMITED
(Company registration number 03131161) a company incorporated and existing
under the laws of England, having its registered office at ViewSonic House,
Fleming Way, Crawley West Sussex RH10 9GA represented for the purposes hereof
by Christopher M. Franey (the “Pledgor”);
and


 


(3)                        FURNESS LOGISTICS MOERDIJK
B.V. a company incorporated and existing under the laws of the Netherlands,
having its registered office at Trade boulevard 4, Havennummer 528, 4761,
Moerdijk represented for the purposes hereof by Piet Mulders (the “Third Party Pledgeholder”).


 


The Pledgee,
the Pledgor and the Third Party Pledgeholder are hereinafter collectively referred
to as the “Parties” and
individually as a “Party”.


 


RECITALS


 


(A)                    Pursuant to a facility agreement dated as
of 24 June 2004 the Pledgee has agreed to make available to the Pledgor
financial facilities up to twenty million US dollars ($20,000,000) as may be
further amended, supplemented or restated form time to time (the “Facility Agreement”).


 


(B)                      Pursuant to a Pledge Agreement
dated 24 June 2004 (the “Pledge Agreement”),
the Pledgor has pledged to the Pledgee its trading stock and other moveable
assets located in the Netherlands, including computer monitors and all other
inventory (the “Goods”),  thus creating a first ranking non-possessory
right of pledge on the Goods.


 


(C)                      The Pledgor is the owner of
Goods stored at warehouses, operated by the Third Party Pledge holder The
Parties are entering into this third party pledgeholder agreement in order to
convert the non-possessory right of pledge created under the Pledge Agreement
into a possessory right of pledge with respect to the Goods located from time
to time at the Warehouses.


 


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IT IS AGREED AS
FOLLOWS:


 


1.                            DEFINITIONS AND INTERPRETATION


 


1.1                                          Unless otherwise defined
herein capitalised terms used in this Agreement, including the recitals hereto,
shall have the meaning given thereto in the Pledge Agreement.


 


1.2                                          In this Agreement, the terms
used will have the following meaning, unless they are expressly otherwise
defined and the headings shall not affect its interpretation:


 


“Additionally Pledged Products”


 


means all the
products belonging to the Pledgor and stored at the Warehouses substituting,
replacing or complementing the Initially Pledged Products;


 


“Agreement”


 


means this
agreement, as may be amended, modified and/or restated from time to time;


 


“Business Day”


 


means any day
not being a Saturday, Sunday or Bank holiday when banks are open for business
in London and the Netherlands;


 


“Event of Default”


 


means any of
the events specified in clause 22 of the Facility Agreement;


 


“Initially Pledged Products”


 


means all the
products of the Pledgor now stored at the Warehouses;


 


“Obligors”


 


means the
Facility Companies and the Guarantors, as each such term is defined by the
Facility Agreement;


 


“Pledged Products”


 


means both the
Initially Pledged Products and the Additionally Pledged Products;


 


“Warehouses”


 


means the
warehouses operated by the Third Party Pledgeholder, located at:


 


(i) 
Tradeboulevard 4, Havennummer 528, 4761 RL Moerdijk; and


 


(ii) 
other premises of the Third Party Pledgeholder located at Moerdijk;


 


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“Secured Indebtedness”


 


means at any
time all present and future obligations and liabilities, whether actual or
contingent and whether owed jointly or severally or in any other capacity whatsoever,
of each Obligor to the Pledgee.


 


1.3                                          References to parties do
include their successors and assigns.


 


2.                            APPOINTMENT OF A THIRD PARTY
PLEDGEHOLDER


 


2.1                                          The Pledgor and the Pledgee
hereby agree that as of the signing of this Agreement the Pledged Products
shall be held by the Third Party Pledgeholder as third party exercising control
(feitelijke macht) over the Pledged
Products within the meaning of article 3:236 paragraph 1 of the Dutch Civil
Code. The Third Party Pledgeholder hereby agrees to so hold the Pledged
Products and agrees in particular that it shall not release or deliver any of
the Pledged Products:


 


(a)                        to the Pledgor, or to any
other person, except with the authorisation of the Pledgee;


 


(b)                       to the Pledgee, except as
pursuant to Sub clauses 2.4 and 3.4.


 


2.2                                          The Pledgee hereby authorises
the Pledgor to dispose of the Pledged Products in its ordinary course of
business as long as no Event of Default has occurred and provided that the
removal of the products from the Warehouses is physically carried out by the
Third Party Pledgeholder.


 


2.3                                          The provisions of this
Agreement shall cease to apply to and the Pledgee hereby waives, renounces and
relinquishes its security rights granted by this Agreement in respect of such
Pledged Products sold and delivered to a third party in conformity with these
provisions.


 


2.4                                          The Pledgee may withdraw the
authorisation under 2.2 at any time by giving written notice to the Pledgor and
the Third Party Pledgeholder. The Third Party Pledgeholder undertakes not to
remove any Pledged Product after it receives such written notice from the
Pledgee.


 


2.5                                          For the avoidance of doubt, if
and to the extent that this Agreement and the mechanisms set out in the Pledge
Agreement fail to create a valid right of possessory pledge on the Pledged
Products on behalf of the Pledgee, the Pledged Products will still be subject
to the non-possessory right of pledge, which right of pledge will be subject to
the terms and conditions of the Pledge Agreement.


 


3.                            UNDERTAKINGS


 


3.1                                          The Third Party Pledgeholder
undertakes to release, return or deliver all of the Pledged Products to the
Pledgee or its designee after receipt of the written notice referred to in
Clause 2.4.


 


3.2                                          The Third Party Pledgeholder
undertakes to segregate the Pledged Products kept in the Warehouses in a way
which shall avoid any confusion with similar third party products stored in the
Warehouses and to comply with any reasonable instruction of the Pledgee to
indicate that the Pledged Products are pledged in favour of the Pledgor.


 


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3.3                                          The Third Party Pledgeholder
confirms and agrees with the Pledgor and the Pledgee that:


 


3.3.1                                                    it is not the beneficiary of
any lien, claim or option over the Pledged Products and does not hold any other
interest in the Pledged Products;


 


3.3.2                                                    it will not create any lien
nor acquire any interest in such Pledged Products and that it agrees not to
levy or distrain on the Pledged Products or to assert any claim against the
Pledge Products or part of it,; and


 


3.3.3                                                    at the date of this Agreement,
it has no outstanding claim against the Pledgor.


 


3.4                                          The Third Party Pledgeholder
undertakes to release the Pledged Products on first request of the Pledgee to
the bailiff acting for the account of the Pledgee, upon notification by the
latter of a judgment of foreclosure of the pledge given according to the
applicable law which has become (provisionally) enforceable notwithstanding
opposition or appeal. Such release shall however not exceed the amount of the
Secured Indebtedness.  The costs of such
release, if any, shall be borne by the Pledgor.


 


3.5                                          The Third Party Pledgeholder
undertakes not to store the Pledged Products in another location than the
Warehouses.


 


4.                            OBLIGATIONS OF THE PLEDGEE


 


4.1                                          In case of foreclosure of the
pledge, the Pledgee undertakes:


 


4.1.1                                                    to pay to the Third Party
Pledgeholder all fees due by the Pledgor under the last invoice in progress,
provided that it is subrogated in the rights of the Third Party Pledgeholder
vis-à-vis the Pledgor; and


 


4.1.2                                                    to pay for the services
rendered by the Third Party Pledgeholder, at the tariff agreed between the
Pledgor and the Third Party Pledgeholder, for as long as these services will be
required by it, provided that it is subrogated in the rights of the Third Party
Pledge holder vis-à-vis the Pledgor.


 


4.2                                          The Pledgee undertakes to
promptly notify the Third Party Pledgeholder of the release of the pledge if
the security created by the Pledge Agreement is discharged.


 


4.3                                          If any storage fees or
associated costs are not paid to the Third Party Pledgeholder in respect of
services provided to the Pledgor, the Third Party Pledgeholder shall have and
may exercise a first priority lien over the Goods to recover such fees and
costs.


 


5.                            WAIVERS


 


The rights of
the Pledgee under this Agreement (whether arising pursuant hereto or under the
general law) shall not be capable of being waived or varied otherwise than by
an express waiver or variation in writing; and in particular any failure to
exercise, or any delay in exercising, any of such rights shall not operate, as
a waiver or variation of that or any other such right; any defective or partial
exercise of any of such rights shall not preclude any other or further exercise
of that or any other such right; and no act or course of conduct or negotiation
on its


 


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part, or on
its behalf, shall in any way preclude it from exercising any such right or
constitute a suspension or any variation of any such right.


 


6.                            MISCELLANEOUS


 


6.1                                          Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.


 


6.2                                          In case anyone or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, in whole or in part, under any enactment or rule
of law, such term or provision or part shall to that extent be deemed not to
form part of this agreement and the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected or
impaired.


 


In such case
the Parties shall negotiate in good faith in order to replace such term or
provision by another term or provision with a similar effect, to the extent
permitted by applicable law.


 


6.3                                          No variation of this Agreement
shall be effective unless in writing and signed by or on behalf of each of the
Parties.


 


7.                            COSTS AND EXPENSES


 


7.1                                          All costs and expenses
incurred by the Pledgee pursuant to this Agreement shall be borne by the
Pledgor.


 


8.                            TERMINATION


 


8.1                                          The Parties agree that this
Agreement will terminate upon the termination of both the non-possessory right
of pledge pursuant to the Pledge Agreement and the possessory right of pledge
pursuant to this Agreement.


 


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9.                            NOTICES


 


9.1                                          Any notice or other
communication requiring to be given or served under or in connection with this
Agreement shall be in writing and shall be sufficiently given or served if
delivered or sent:


 


In case of the
Pledgee:


 


BURDALE
FINANCIAL LIMITED


53 Queen Anne
Street


London


W1G 9HP


England


 


Fax: 0044 20
7935 4445


 


For the
attention of the Company Secretary


 


 


In case of the
Pledgor:


 


VIEWSONIC
EUROPE LIMITED


 


ViewSonic
House


 


Fleming Way,
Crawley


 


West Sussex


 


RH10 9GA


 


Fax: 0044 1293
643 915


 


For the attention
of the European Legal Counsel


 


 


In case of the
Third Party Pledgeholder:


Tradeboulevard
4


Havennummer
528


4761 RL
Moerdijk


 


Fax:


 


For the
attention of: Piet Mulders


 


9.2                                          Any such notice or other
communication shall be delivered by hand or sent by courier, fax or prepaid
first class post.  If sent by courier or
fax such notice or communication shall conclusively be deemed to have been
given or served at the time of dispatch. 
If sent by post such notice or communication shall conclusively be
deemed to have been received two business days from the time of posting.


 


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10.                     GOVERNING LAW AND SUBMISSION TO
JURISDICTION


 


10.1                                    This Agreement shall be
governed by and construed in accordance with the laws of the Netherlands.


 


10.2                                    In case of dispute which may
arise out of or in connection with this Agreement, the Courts of Amsterdam, the
Netherlands, shall have exclusive jurisdiction.


 


IN WITNESS whereof the parties hereto have caused this Agreement
to be duly executed and delivered by their respective officers thereunto duly
authorized as the date the first above written.


 


	
  Signed on
  behalf of BURDALE FINANCIAL

  	
  )

  
	
  LIMITED in
  the presence of:

  	
  )

  
	
   

  
	
   

  
	
  Witness:

  	
  /s/ Nigel B.
  Hogg

  	
   

  
	
   

  
	
  Name: Nigel
  B. Hogg

  
	
   

  
	
  Address: 53 Queen
  Anne Street

  
	
   

  
	
  London

  
	
   

  
	
  W1G 9HP,
  England

  
	
   

  
	
  Occupation:
  Director

  
			



 


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  Signed on
  behalf of VIEWSONIC EUROPE

  	
  )

  
	
  LIMITED in
  the presence of:

  	
  )

  
	
   

  
	
   

  
	
  Witness:

  	
  /s/
  Christoper Franey

  	
   

  
	
   

  
	
  Name:
  Christopher Franey

  
	
   

  
	
  Address:
  ViewSonic House

  
	
   

  
	
  Fleming Way,
  Crawley

  
	
   

  
	
  West Sussex,
  RH10 9GA

  
	
   

  
	
  Occupation:
  President

  
			



 


 


	
  Signed on
  behalf of FURNESS LOGISTICS

  	
  )

  
	
  MOERDIJK
  B.V.   

  	
  )

  
	
  in the
  presence of:

  	
  )

  
	
   

  
	
   

  
	
  Witness:

  	
  /s/ Piet
  Mulders

  	
   

  
	
   

  
	
  Name: Piet
  Mulders

  
	
   

  
	
  Address:
  Tradeboulevard 4

  
	
   

  
	
  Havennummer
  528

  
	
   

  
	
  4761 RL
  Moerdijk

  
	
   

  
	
  Occupation:
  Operations Manager

  
			



 


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