1
Exhibit 10.55
Pledge of Shares
On this the ninth day of April two thousand three, appeared before me,
Bart Theodoor Derogee, civil-law notary in Rotterdam:
A. Remco Nicolaas van der Veer, employed at the offices of me,
civil-law notary, located at 3014 DA Rotterdam, Weena 750, born at
`s-Hertogenbosch on the thirtieth day of July nineteen hundred and
seventy-one, acting for the purpose hereof as attorney - duly
authorised in writing - of:
1. Resolution Performance Products LLC, a limited liability
company organised and existing under the laws of the State of
Delaware, United States of America, having its registered
office at CSC, 2711 Centerville Road, Suite 400, Wilmington,
Delaware DE 19808, United States of America, hereinafter
referred to as "RPP USA";
2. RPP Capital Corporation, a corporation organised and existing
under the laws of Delaware, having its registered office at
CSC, 2711 Centerville Road, Suite 400, Wilmington, Delaware
DE 19808, United States of America, hereinafter referred to
as "US Finance Corp";
3. Resolution Holdings B.V., a private limited liability company
organised and existing under the laws of the Netherlands,
having its corporate seat at `s-Gravenhage and its registered
office at Vondelingenweg 601, 3196 KK Vondelingenplaat
(Rotterdam), trade register number 27182096, hereinafter
referred to as the "Company";
the entity sub 1 hereinafter also referred to as the "Pledgor";
the entities sub 1 and sub 2 hereinafter together also referred as
the "US Borrowers";
B. Elise Martine van Oirschot, employed at the offices of me,
civil-law notary, located at 3014 DA Rotterdam, Weena 750, born at
Rijssen, on the fourteenth day of September nineteen hundred and
seventy-seven, acting for the purpose hereof as attorney - duly
authorised in writing - of
4. Morgan Stanley & Co., Incorporated, a company organised and
existing under the laws of the State of Delaware, United
States of America, having its corporate seat at New York,
United States of America, (address: 1585 Broadway, NY 10036,
New York, United States of America), which in its turn is
acting for the purposes hereof in its capacity as Collateral
Agent as defined in the Amended and Restated US Security
Agreement as hereinafter defined, hereinafter referred to as
the "Collateral Agent", hereinafter also referred to as the
"Pledgee"; and
5. Deutsche Bank Trust Company Americas, a New York Banking
Corporation under the laws of New York, having its registered
2
office at New York, United States, (address: 280 Park
Avenue, NY 10017, New York), which in its turn is
acting for the purposes hereof in its capacity as
Senior Secured Notes Trustee as defined in the Amended
and Restated US Security Agreement as hereinafter
defined, hereinafter referred to as the "Senior
Secured Notes Trustee";
The persons appearing, acting in their capacities referred to
above, declared as follows:
- the US Borrowers and the Senior Secured Notes Trustee have
entered into an Indenture dated as of the ninth day of April
two thousand three, providing for the issuance of the nine
and a half per cent (9 1/2%) Senior Second Secured Notes due
two thousand ten by the US Borrowers (the "Senior Secured
Note Indenture");
- pursuant to the Fourth Amendment to the Credit Agreement
dated as of the first day of April two thousand three, the
Lender Creditors have authorized the Collateral Agent, inter
alia, to accept security for the obligations of the US
Borrowers in respect of the Senior Secured Note Documents;
- RPP USA is holder of four-hundred (400) ordinary shares, with
a par value of one thousand Netherlands Guilders (NLG
1,000.--) each, numbered 1 up to and including 400 in the
share capital of the Company, hereinafter referred to as the
"Total Shares";
- RPP USA, Resolution Holdings B.V., Resolution Europe B.V.
(formerly known as Resolution Nederland B.V.), Resolution
Research Nederland B.V., Morgan Stanley & Co., Incorporated,
Citigroup Global Markets Inc. (formerly known as Salomon
Smith Barney Inc.), JPMorgan Chase Bank (formerly known as
Morgan Guaranty Trust Company of New York), Morgan Stanley
Senior Funding, Inc. and Citicorp USA, Inc. have entered into
a deed of pledge on the fourteenth day of November two
thousand ("First Deed of Pledge") with respect to sixty-five
per cent (65%) of the Total Shares, being two hundred and
sixty (260) shares, the shares numbered 1 up to and including
260, (the "Present Shares") and sixty-five per cent (65%) of
any shares in the capital of the Company acquired by RPP USA
after the fourteenth day of November two thousand, having the
lowest serial numbers of these acquired shares (the "Future
Shares"); the Present Shares and the Future Shares are
hereinafter collectively referred to as the "Shares";
- the parties to the Senior Secured Note Indenture have agreed
that a second priority security interest on the Present
Shares and the Future Shares is to be granted to the
Collateral Agent as security for the obligations under the
Senior Secured Note Indenture and the Senior Secured Notes;
3
- the Articles of Association of the Company do not explicitly
permit a transfer of voting rights to the Pledgee of shares
in its capital, but pursuant to article 2:198 Netherlands
Civil Code (hereinafter "NCC") transfer of voting rights is
possible if so provided on the establishment of the pledge
and if the establishment of the pledge is approved by the
general meeting of shareholders;
- it has been agreed that the Pledgee shall be entitled to the
voting rights on the Shares, subject to the provisions set
out in Article 7 of this Deed;
- the Pledgor as sole shareholder of the Company has resolved
to give the legally required approval for the vesting of this
pledge, including the fact that the Pledgee shall be entitled
to the voting rights, subject to the provisions set out in
Article 7 of this Deed.
ACQUISITION OF THE PRESENT SHARES BY PLEDGORS
The Present Shares were transferred to RPP USA pursuant to a
purchase agreement by a deed of transfer executed before R.J.C.
van Helden, civil-law notary practising at Amsterdam, on the
fourteenth day of November two-thousand. The transfer was
acknowledged by the Company on the same day as is evidenced by the
First Deed of Pledge.
The US Borrowers, the Company, the Pledgee and the Senior Secured
Notes Trustee have agreed the following terms and conditions:
Article 1
Definitions
(a) Reference to singular terms shall include the plural and vice
versa.
(b) Capitalized terms used herein and defined in the Amended and
Restated US Security Agreement, dated as of the fourteenth
day of November two thousand and amended and restated as of
ninth day of April two thousand three, among Morgan Stanley &
Co., Incorporated, RPP USA, US Finance Corp, and Resolution
Performance Products Inc. ("RPP Inc.") and various
subsidiaries of RPP Inc. (as so amended and restated and as
the same may be further modified, supplemented or amended
from time to time, the "US Security Agreement") shall be used
herein as therein defined.
(c) The following capitalized terms used herein shall have the
definitions specified below:
"Collateral Agent" has the meaning provided in the recitals
hereto
"Deed" means this Pledge of shares, dated the ninth day of
April two thousand three
"Event of Default" has the meaning provided in the Senior
Secured Note Indenture
"First Deed of Pledge" has the meaning provided in the
recitals hereto
"Future Shares" has the meaning provided in the recitals
hereto
"NCC" means the Netherlands Civil Code (in Dutch: "Burgerlijk
4
Wetboek")
"Obligations" means for each US Borrower the full and prompt
payment when due (whether at the stated maturity, by acceleration
or otherwise) of all obligations, liabilities and indebtedness
(including, without limitation, indemnities, fees and interest
thereon (including, without limitation, all interest that accrues
after the commencement of any case, proceeding or other action
relating to the bankruptcy, insolvency, reorganization or similar
proceeding of any US Borrower at the rate provided for in the
respective documentation, whether or not a claim for post-petition
interest is allowed in any such proceeding)) of such US Borrower
owing to the Second Lien Creditors, whether now existing or
hereafter incurred under, arising out of, or in connection with
the Senior Secured Notes and the Senior Secured Note Indenture to
which such US Borrower is a party and the due performance and
compliance by such US Borrower with all of the terms, conditions
and agreements contained in the Senior Secured Notes and in the
Senior Secured Note Indenture, in each case other than the
Parallel Obligation and any other obligation pursuant to this Deed
"Parallel Obligation" has the meaning provided in Article 5 hereof
"Pledgee" has the meaning provided in the first paragraph hereof
"Pledgor" has the meaning provided in the first paragraph hereof
"Present Shares" has the meaning provided in the recitals hereof
"Secured Obligations" means, collectively, the Obligations, the
Parallel Obligation and the payment obligations under this Deed in
respect of any costs relating to the foreclosure (in Dutch:
"kosten van executie") of this Deed, each to the extent such
obligations consist of a monetary payment obligation (in Dutch:
"vordering tot voldoening van een geldsom")
"Securities" has the meaning provided in the US Pledge Agreement
"Senior Secured Notes" has the meaning provided in the Senior
Secured Note Indenture
"Senior Secured Note Indenture" has the meaning provided in the
recitals hereof
"Senior Secured Notes Trustee" has the meaning provided in the
first paragraph hereof
"Shares" has the meaning provided in the recitals hereof
"Total Shares" has the meaning provided in the recitals hereof
"US Borrowers" has the meaning provided in the first paragraph
hereof
"US Security Agreement" has the meaning set forth in Article 1(b)
hereof
"US Pledge Agreement" shall mean the Amended and Restated US
Pledge Agreement dated as of the ninth day of April two thousand
three, between RPP USA, US Finance Corp., RPP Inc, various
subsidiaries of RPP Inc., and Morgan Stanley & Co., Incorporated
Article 2
5
Agreement to Pledge
In order to secure the performance and prompt payment in full of
all Secured Obligations, the Pledgor and the Pledgee hereby agree
to create a right of pledge (in Dutch: "pandrecht") on the Shares
in favour of the Pledgee, such right of pledge to be ranked second
(in Dutch "tweede in rang") to the First Deed of Pledge.
Article 3
Creation of Pledge on Shares
In order to secure the performance and prompt payment in full of
all Secured Obligations, in accordance with Article 2 hereof, the
Pledgor hereby grants a right of pledge on the Present Shares and
grants in advance (in Dutch: "bij voorbaat") a right of pledge on
the Future Shares, such right of pledge to be ranked second to the
First Deed of Pledge, which right of pledge is hereby accepted by
the Pledgee. Upon acquisition of Future Shares, the Pledgor and
the Company shall, each at their own expense, execute such
agreements, deeds, confirmations and notices, give such assurances
and do all such acts and things as the Pledgee may reasonably
require to create or perfect the security interest of the Pledgee
in respect of the Future Shares and any rights related thereto.
Article 4
Further assurances
The Pledgor shall, if and when reasonably required by the
Collateral Agent, execute such further liens and assurances in
favour of the Collateral Agent for the benefit of the Second Lien
Creditors and do all such acts and things as the Collateral Agent
shall from time to time reasonably require over or in relation to
all or any of the Shares to secure the payment of the Secured
Obligations or to perfect or protect the security of each of the
Second Lien Creditors created or purported to be created hereby
over the Shares or any part thereof or to facilitate the
realisation of the same but so that the terms of such further
Liens and assurances shall be no more onerous than the terms of
this Deed.
Article 5
Parallel Obligation
5.1 The US Borrowers hereby irrevocable and unconditionally
undertake to pay to the Collateral Agent an amount equal to
the aggregate amount payable (in Dutch: "verschuldigd") by
the US Borrowers to the Second Lien Creditors in respect of
the Obligations as they may exist from time to time. The
payment undertaking of the US Borrowers to the Collateral
Agent under this Article 5 is hereinafter to be referred to
as the "Parallel Obligation". The Parallel Obligation will be
payable in the currency of the relevant Obligations.
5.2 The Parallel Obligation will become due and payable (in
Dutch: "opeisbaar") on or after the date and to the extent
one or more of the Obligations become due and payable.
6
5.3 The US Borrowers, the Senior Secured Notes Trustee, also on
behalf of the other Second Lien Creditors and the Pledgee
hereby acknowledge that:
a. the Parallel Obligation constitutes an undertaking,
obligation and liability of the US Borrowers to the
Collateral Agent which is separate and independent from,
and without prejudice to, the Obligations; and
b. the Parallel Obligation represents the Collateral Agent's
own separate and independent claim (in Dutch: "eigen en
zelfstandige vordering") to receive payment of the
Parallel Obligation from the US Borrowers;
it being understood that the amount which may become payable
by the US Borrowers as Parallel Obligation shall never exceed
the total of the amounts which are payable under the
Obligations.
5.4 For the avoidance of doubt, the US Borrowers, the Senior
Secured Notes Trustee, also on behalf of the other Second
Lien Creditors, and the Pledgee acknowledge that the claim of
the Collateral Agent against the US Borrowers in respect of
the Parallel Obligation and the claims of any one or more of
the Second Lien Creditors against the US Borrowers in respect
of the Obligations do not constitute common property and that
the provisions under the NCC relating to such common property
shall not apply. If, however, it shall be held that such
claim of the Collateral Agent and such claim of any one or
more of such Second Lien Creditors do constitute common
property and such provisions apply, the US Borrowers, the
Senior Secured Notes Trustee, also on behalf of the other
Second Lien Creditors, and the Pledgee agree that this Deed
shall constitute the administration agreement of such common
property. For the avoidance of doubt, the US Borrowers, the
Senior Secured Notes Trustee, also on behalf of the other
Second Lien Creditors, and the Pledgee acknowledge that this
Deed is not to be construed as an agreement which provides
that two or more creditors can demand payment of the same
claim such that payment to one creditor also satisfies
payment due to the other and that therefore the provisions
relating to common property under the NCC shall not apply by
analogy to the relation between the Collateral Agent and any
one or more of the Second Lien Creditors on the one hand and
the US Borrowers on the other hand.
5.5 To the extent the Collateral Agent irrevocably (in Dutch:
"onaantastbaar") receives any amount in payment of the
Parallel Obligation, the Collateral Agent shall distribute
such amount among the Second Lien Creditors in accordance
with Section 9.4 of the US Security Agreement. The Senior
Secured Notes Trustee agrees, also on behalf of
7
the other Second Lien Creditors, that upon irrevocable (in
Dutch: "onaantastbaar") receipt by the Collateral Agent of
any amount in payment of the Parallel Obligation ("Received
Amount"), the Obligations of the US Borrowers to the Second
Lien Creditors shall be reduced by amounts totalling an
amount ("Deductable Amount") equal to the Received Amount in
the manner as if the Deductable Amount were received as a
payment of the Obligations on the date of receipt by the
Second Lien Creditors of the received amount.
Article 6
Representations and warranties and covenants of Pledgor
(a) The Pledgor represents, warrants and covenants that:
(i) it is the legal and beneficial owner of, and has legal
title to the Present Shares and the Present Shares
have not been encumbered by any limited right (in
Dutch "beperkt recht") other than (x) the liens and
security interests created by this Deed, and (y) the
liens and security interests created by the First Deed
of Pledge, nor has an attachment (in Dutch "beslag")
been levied on any of the Present Shares;
(ii) it has full power, authority and legal right to pledge
all the Present Shares pledged by it pursuant to this
Deed by way of second priority right of pledge;
(iii) no depositary receipts have been issued for the
Present Shares;
(iv) the Total Shares represent the entire issued and
outstanding share capital of the Company;
(v) this Deed has been duly authorized, executed and
delivered by the Pledgor and constitutes the legal,
valid and binding obligations of such Pledgor,
enforceable against the Pledgor in accordance with its
terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other
similar laws generally affecting creditors' rights;
(vi) except to the extent already obtained or made, no
consent of any other party (including, without
limitation, any stockholder, partner, member or
creditor of the Pledgor or any of its subsidiaries)
and no consent, license, permit, approval or
authorization of, exemption by, notice or report to,
or registration, filing or declaration with, any
governmental authority is required to be obtained by
the Pledgor in connection with (a) the execution,
delivery or performance of this Deed, (b) the validity
or enforceability of this Deed, (c) the perfection or
enforceability of the security interest in the Shares
as created pursuant to this Deed or (d) except for
compliance with or as may be required by
8
applicable securities laws, the exercise by the
Pledgee of any of their rights or remedies provided
herein;
(vii) the execution, delivery and performance of this Deed
will not violate any provision of any applicable law
or regulation or of any order, judgment, writ, award
or decree of any court, arbitrator or governmental
authority, domestic or foreign, applicable to the
Pledgor, or of the articles of association of the
Pledgor or of any securities issued by the Pledgor or
any of its subsidiaries, or of any mortgage, deed of
trust, indenture, lease, loan agreement, credit
agreement or other material contract, agreement or
instrument or undertaking to which the Pledgor or any
of its subsidiaries is a party or which purports to be
binding upon the Pledgor or any of its subsidiaries or
upon any of their respective assets and will not
result in the creation or imposition of (or the
obligation to create or impose) any lien or
encumbrance on any of the assets of the Pledgor or any
of its subsidiaries except as contemplated by this
Deed;
(viii) all of the Present Shares have been duly and validly
issued and acquired, are fully paid and subject to no
options to purchase or similar rights.
(b) The Pledgor covenants and agrees that it will defend the
Pledgee's right, title and security interest in and to the
Shares and the proceeds thereof against the claims and demands
of all persons whomsoever; and the Pledgor covenants and
agrees that it will have like title to and right to pledge any
Future Shares hereunder and will likewise defend the right
thereto and security interest therein of the Pledgee.
(c) The Pledgor and the Company covenant and agree that they will
not (without the prior written consent of the Collateral
Agent, which consent will not be unreasonably withheld)
co-operate to issue any depositary receipts in relation to the
Shares.
(d) The Pledgor covenants and agrees that it will not (without the
prior written consent of the Collateral Agent, which consent
will not be unreasonably withheld) cause or permit to be
issued any new shares in the capital of the Company, other
than to the Pledgor.
Article 7
Voting rights
7.1 The voting rights attached to the Shares and the rights to
give consents and waivers with respect to the Shares remain
with the Pledgor until an Event of Default has occurred and
the Pledgee has notified the Pledgor and the Company thereof
in writing, provided however that the right of pledge created
by the First Deed of Pledge has terminated. Upon receipt of
such notification by the Company and provided that the right
of pledge
9
created by the First Deed of Pledge has terminated, the
Pledgee, at the direction of the Required Secured Creditors,
shall be entitled to exercise the voting rights attached to
the Shares and shall be entitled to exercise all rights to
give consents and waivers with respect to the Shares, and the
Pledgor shall no longer be entitled to the voting rights or
to exercise such other rights. As long as the Pledgee does
not hold the voting rights with respect to the Shares, it
shall not have the rights of holders of depositary receipts.
It is understood that when the Pledgee will hold the voting
rights with respect to the Shares, the Pledgor shall have the
rights of holders of depositary receipts by operation of law.
To the extent possible under Netherlands law, the Pledgor
waives these rights of holders of depositary receipts in
advance and the Pledgee accept this waiver.
7.2 As long as the Pledgor shall be entitled to exercise the
voting rights attached to the Shares, no vote shall be cast
or any consent, waiver or rectification given or any action
taken or omitted to be taken, which would violate or be
inconsistent with any of the terms of this Deed or any other
US Security Document, or which would have the effect of
impairing the value of the Shares or any part thereof in any
material respect or the position or interests of the Pledgee
in the Shares in any material respect.
Article 8
Immediate foreclosure
8.1 If an Event of Default shall have occurred and be continuing,
and the right of pledge created by the First Deed of Pledge
has terminated, the Collateral Agent for the benefit of the
Second Lien Creditors shall be empowered without notice or
other demand, acting upon the instructions of the Required
Secured Creditors as provided for in Section 9 of the US
Pledge Agreement, to cause all or a part of the Shares to be
sold in accordance with the provisions of the Articles of
Association of the Company and the laws of the Netherlands,
provided that the Articles 3:234 and 3:249 and 3:252 NCC
shall not apply.
8.2 The Pledgor hereby waives its right pursuant to Article 3:251
paragraph 1 NCC, which waiver is hereby accepted by the
Pledgee.
8.3 The Collateral Agent is irrevocably authorised (without
obligation) by the Pledgor to, in the event of a sale as
referred to in paragraph 1 of this Article 8, offer the
Shares for sale in the manner prescribed by the Company's
Articles of Association or to seek the approval of the
corporate body designated under the Company's Articles of
Association as empowered to approve all proposed transfers of
shares, as the case may be, and to exercise any of the
Pledgor's rights in connection with the sale and transfer of
the Shares as provided in Article 2:198 paragraph 5 NCC.
10
To the extent permitted by applicable law, the Pledgor as
sole shareholder of the Company hereby waives its rights of
first refusal, if any, in relation to the sale of the Shares
referred to in this Article 8, which waiver is hereby
accepted by the Pledgee.
8.4 If an Event of Default shall have occurred and be continuing
and provided that the right of pledge created by the First
Deed of Pledge has terminated, then, and in every such case,
the Pledgor and the Company shall render such assistance and
provide such information free of charge as the Collateral
Agent may reasonably deem necessary in connection with the
exercise by the Collateral Agent (acting at the direction of
the Required Secured Creditors) of its rights, powers or
remedies provided for in this Deed.
8.5 To the extent permitted by applicable law, the Collateral
Agent (acting at the direction of the Required Secured
Creditors) shall apply the proceeds of the sold Shares in
accordance with the provisions of Section 9.4 of the US
Security Agreement.
8.6 The Collateral Agent and the Second Lien Creditors shall not
be liable to the Pledgor for any damages caused by the sale
of the Shares pursuant to this Article 8.
8.7 The Senior Secured Notes Trustee expressly acknowledges and
agrees that, pursuant to Section 9.1 of the US Security
Agreement, this Deed may be enforced only by the action of
the Pledgee, acting upon the instructions of the Required
Secured Creditors, and that the Senior Secured Notes Trustee
shall not have any right individually to seek to enforce or
to enforce this Deed or to realize upon the security granted
hereby.
8.8 The Senior Secured Notes Trustee acknowledges and agrees that
the obligations of the Pledgee as holder of the second
priority right of pledge with respect to the Shares and with
respect to the disposition thereof, and otherwise under this
Deed, are only those expressly set forth in this Deed and as
provided in Annex N to the US Security Agreement.
Article 9
Subrogation claims
(a) Until such time as the Obligations (as defined in the US
Security Agreement) have been irrevocably paid in full and
the pledge created by the First Deed of Pledge has been
terminated, the Pledgor hereby waives (to the fullest extent
permitted by applicable law) all contractual, statutory or
common law rights of reimbursement, contribution or indemnity
from the US Borrowers which it may at any time otherwise have
as a result of this Deed.
(b) After the Obligations (as defined in the US Security
Agreement) have been irrevocably paid in full and the pledge
created by the First Deed of
11
Pledge has been terminated, the Pledgor whose Shares have
been sold hereunder (for which it has not been reimbursed)
shall be entitled to exercise its rights pursuant to it
being subrogated to the claims of the Second Lien Creditors
(with respect to the Obligations) against the US Borrowers.
Except as expressly provided in the immediately preceding
sentence, each Pledgor waives (to the fullest extent
permitted by applicable law) all rights of subrogation
which it may at any time otherwise have as a result of this
Deed (whether contractual, at law or otherwise) to the
claims of the Second Lien Creditors against the US
Borrowers. The Pledgor hereby further waives (to the
fullest extent permitted by applicable law) any right to
enforce any other remedy which the Second Lien Creditors
now have or may hereafter have against the US Borrowers or
any endorser of all or any part of the Obligations (as
defined in the US Security Agreement) and any benefit of,
and any right to participate in, any security or collateral
given to or for the benefit of the Second Lien Creditors to
secure payment of the Obligations.
Article 10
Currencies
10.1 All moneys received or held by the Collateral Agent or any
one of them under this Deed on or after the date on which
an Event of Default has occurred in a currency other than a
currency in which the Secured Obligations are denominated
may from time to time be sold for the currency in which the
Secured Obligations are denominated as the Collateral Agent
reasonably considers necessary or desirable and the Pledgor
shall be liable to the Collateral Agent for the full cost
(including all costs, charges and expenses) properly
incurred in relation to such sale. The Collateral Agent and
the Second Lien Creditors shall not have any liability to
the Pledgor in respect of any loss resulting from any
fluctuation in exchange rates before or after any such
sale.
10.2 No payment to the Collateral Agent or the Second Lien
Creditors (whether under any judgement or court order or
otherwise) shall discharge the obligation or liability of
the Pledgor in respect of which it was made unless and
until the Collateral Agent or the Second Lien Creditors
shall have received payment in full in the currency in
which such obligation or liability was incurred. To the
extent that the amount of any such payment shall on actual
conversion into such currency fall short of such obligation
or liability expressed in that currency, the Collateral
Agent or the Second Lien Creditors, as the case may be,
shall have a further separate cause of action against the
Pledgor to recover such shortfall and shall be entitled to
enforce the security hereby created to recover the amount
of the shortfall.
Article 11
12
Unfettered discretion
Save as otherwise provided in this Deed or any other US Security
Document any liability or power which may be exercised or any
determination which may be made under this Deed by the Collateral
Agent (acting in its own name or on behalf of the Pledgee) may be
exercised or made in its absolute and unfettered discretion and it
shall not be obliged to give reasons therefore.
Article 12
Notices, Amendment and Waiver
12.1 All such notices and communications hereunder shall be sent
or delivered by mail, telegraph, telex, telecopy, cable or
overnight courier service and all such notices and
communications shall, when mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, be
effective when delivered to the Person to whom such notice or
communication is addressed, except that notices and
communications to the Collateral Agent or the Pledgor shall
not be effective until received by the Collateral Agent or
the Pledgor, as the case may be. All notices and other
communications shall be in writing and addressed as provided
for under Article 12.1 of the US Security Agreement.
12.2 The provisions of Article 12.2 of the US Security Agreement
shall apply to this Deed and the second priority right of
pledge created hereunder.
Article 13
Irrevocable power of attorney
13.1 The Pledgor hereby grants to the Collateral Agent an
irrevocable and non-exclusive power of attorney (without
obligation), with the right of substitution, to perform on
its behalf and at its expense any and all of its obligations
under this Deed.
13.2 The Pledgor and the Collateral Agent hereby in accordance
with article 3:68 NCC agree that the Collateral Agent shall
also be authorized to represent the Pledgor under the said
power of attorney in case of a conflict of interests between
the interest of the Pledgor and the Collateral Agent.
Article 14
Severability
To the extent possible under applicable law, in the event a
provision hereof were to be ruled at any time by any applicable
authority or court to be invalid or null and void or
unenforceable, such invalidity or nullity or unenforceability
shall not affect the validity or enforceability of the other
provisions hereof and the parties hereto shall agree on a new
provision consistent with the purposes of the invalid or
unenforceable provision of this Deed.
Article 15
Termination; Release
15.1 The Pledgee herewith agrees, and the Pledgor herewith
accepts, this Deed
13
and the second priority right of pledge created hereunder
shall terminate without any further action required
therefore upon termination of the liens on the Securities,
and the proceeds thereof, created pursuant to the US Pledge
Agreement.
15.2 The parties to this Deed agree that the second priority
right of pledge created hereunder can be terminated in
whole or in part by the Collateral Agent (acting upon the
direction of the Required Secured Creditors if required)
and the Pledgor without the consent of any other party
hereto, including the Senior Secured Notes Trustee, in
accordance with Section 19(b) of the US Pledge Agreement.
15.3 The Collateral Agent, at the request and expense of the
Pledgor, will execute and deliver to the Pledgor a proper
instrument or instruments acknowledging the satisfaction
and termination of this Deed and the second priority right
of pledge created hereunder.
Article 16
Headings descriptive
The headings in this Deed are for purposes of reference only and
shall not limit or define the meaning hereof.
Article 17
Applicable law and jurisdiction
17.1 This Deed and any dispute, controversy, proceedings or
claim of whatever nature arising out of or in any way
relating to this Deed and the rights of pledge created
hereby shall be governed by and construed in accordance
with the laws of the Netherlands.
17.2 Each of the parties hereto irrevocably agrees that all
disputes arising out of this Deed shall be submitted in
first instance to the competent court at Amsterdam, the
Netherlands. Nothing in the preceding sentence shall limit
the Pledgee's right to bring proceedings against the
Pledgor in any other court of competent jurisdiction.
Article 18
Acknowledgement
The person appearing mentioned under sub A., acting as
representative of the Company, declared that the Company has
always accepted as valid the transfer by which the Pledgor
obtained the Present Shares of the Company and all previous
transfers of the Present Shares of the Company, that the Company
acknowledges the rights of pledge created by this Deed on the
Present Shares, and that the Company will cause these rights of
pledge to be recorded in its shareholders register without delay.
Furthermore, the person appearing mentioned under sub A., acting
as representative of the Company, declared that the Company
acknowledges the rights of pledge created by this Deed on the
Future Shares and undertakes to enter such rights of pledge in its
shareholders register without delay as soon as the
14
relevant Pledgor becomes the holder thereof.
Article 19
Authority and powers of attorney
The person appearing mentioned under sub A. has been granted three
powers of attorney by means of three non-notarial instruments of
attorney. The instruments of attorney will immediately after the
present Deed has been executed be attached to this Deed. The
person appearing mentioned under sub B. has been granted two
powers of attorney by means of two non-notarial instruments of
attorney. These instruments of attorney will immediately after the
present Deed has been executed be attached to this Deed.
FINAL PART
The persons appearing before me are known to me, civil-law notary.
This deed
was executed
in Rotterdam on the date mentioned in its heading. After I,
civil-law notary, had conveyed and explained the contents of the
deed in substance to the persons appearing, they declared that
they had taken note of the contents of the deed, were in agreement
with the contents and did not wish it to be read out in full.
Following a partial reading, the deed was signed by the persons
appearing and me, civil-law notary.
/s/ Remco Nicolaas van der Veer
-------------------------------
E.M. van Oirschot
B.Th. Derogee, civil law notary
ISSUED FOR TRUE COPY