EXHIBIT 10.61
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Second Pledge of Resolution Holdings B.V. Shares
On this the twenty-second day of December two thousand three, appeared before
me, Bart Theodoor Derogee, civil-law notary in Rotterdam, the Netherlands: Elise
Martine van Oirschot, employed at the offices of me , civil-law notary, at 3014
DA Rotterdam, the Netherlands, Weena 750, born at Rijssen, the Netherlands on
the fourteenth day September nineteen hundred seventy-seven, 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";
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 US Security Agreement as hereinafter defined but in such
capacity on its own behalf (voor zich) and not as agent or trustee for any
other person, 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 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 US Security Agreement, hereinafter referred to as
the "Senior Secured Notes Trustee";
The person appearing, acting in the 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 (as the same may be
amended, modified, varied, supplemented, novated or restated from time to
time (including, any agreement extending the maturity of, refinancing,
replacing or otherwise restructuring (including increasing the amount of
available borrowings thereunder) all or any portion of the debt under such
agreement or any successor or replacement agreement and whether by the same
or any other agent, lender or group of noteholders), hereinafter 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;
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- - 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 date
hereof ("First Deed of Pledge") pursuant to which (i) RPP USA has created a
right of pledge on sixty-five per cent (65%) of the shares in the capital
of the Company as well as a right of pledge on Future Shares (as defined
below) and (ii) RPP USA has created a right of pledge on one hundred per
cent (100%) of the shares in the capital of the Company as well as a right
of pledge on all shares in the capital of Resolution Holdings acquired by
RPP USA after the date thereof;
- - the parties to the Senior Secured Note Indenture have agreed that a junior
ranking 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;
- - 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 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.
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 US Security Agreement,
dated as of the fourteenth day of November two thousand (as amended and
restated as of ninth day of April two thousand three and as further amended
as of the twenty second day of December two thousand and three pursuant to
the First Amendment to Amended and Restated US Security Agreement), 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 deed of pledge of shares, as the same may be modified, supplemented or
amended from time to time in accordance with its terms. "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" means any and
all shares in the capital of the Company that RPP USA shall acquire after the
date of this Deed, which shares together with the Present Shares represent
sixty-five per cent (65%) (or such number as most closely approaches sixty-five
per cent (65%) without exceeding it) of the total issued shares in the share
capital of the Company and which shares shall, for identification purposes, each
time be the shares with the lowest share numbering of all shares comprised in
the relevant acquisition
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"NCC" means the Netherlands Civil Code (in Dutch: "Burgerlijk 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 or the First Deed of Pledge
"Noteholders' Portion" means at the relevant time those shares with the lowest
numbering of the Present Shares together with any Future Shares, if any, of
which the aggregate principal amount, par value, book value as carried by RPP
USA or the market value as determined by RPP USA's board of directors, whichever
is the greatest, as such terms are interpreted by the SEC under Rule 3-10 or
Rule 3-16 of Regulation S-X under the Securities Act of 1933, as amended (the
"Securities Act"), that equals nineteen point ninety-nine per cent (19.99%) (or
such number as most closely approaches nineteen point ninety-nine per cent
(19.99%) without exceeding it) of the aggregate outstanding principal amount of
the Senior Secured Notes outstanding at such time.
"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" means sixty-five per cent (65%) of the Total Shares, being two
hundred and sixty (260) shares, numbered 1 up to and including 260
"SEC" means the Securities and Exchange Commission
"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" means the Present Shares and the Future Shares
"Total Shares" means four-hundred (400) ordinary shares, with a par value of one
thousand Netherlands Guilders (NLG 1,000.00) each, numbered 1 up to and
including 400, in the share capital of the Company
"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 US Pledge Agreement, dated as of the
fourteenth day of November two thousand (as amended and restated as of the ninth
day of April two thousand three and as further amended as of the twenty second
day of December two thousand and three pursuant to the First Amendment to
Amended and Restated US Security Agreement), among Morgan Stanley & Co.,
Incorporated, RPP USA, US Finance Corp, and Resolution Performance Products Inc.
("RPP Inc.")
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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)
Article 2
Agreement to Pledge
In order to secure the Secured Obligations, the Pledgor and the Pledgee hereby
agree to create a right of pledge (in Dutch: "pandrecht") on certain of the
Shares in favour of the Pledgee, such right of pledge to be ranked junior (in
Dutch "lager in rang") to the rights of pledge created in the First Deed of
Pledge.
Article 3
Creation of Pledge on Shares
3.1 In order to secure the Secured Obligations, RPP USA agrees to pledge and
pledges ("verpandt") to the Collateral Agent (i) the Noteholders' Portion
and (ii) subject to the suspensive condition ("opschortende voorwaarde")
from time to time that the number of shares pledged under this Article 3.1
is less than the Noteholders' Portion, such Present Shares and, in advance
("bij voorbaat") such Future Shares, if any, as are necessary from time to
time to achieve that the number of shares pledged under this Article 3.1,
equals the Noteholders' Portion, which shares shall be each time the shares
unencumbered pursuant to this Article 3.1 with the lowest share numbering.
Such right of pledge to be effective each time the suspensive condition is
fulfilled. The Collateral Agent hereby agrees to accept and accepts, and as
far as the Future Shares are concerned, accepts in advance, such rights of
pledge. Under the suspensive condition ("opschortende voorwaarde") from
time to time that the Present Shares together with the Future Shares, if
any, pledged pursuant to this Article 3.1, are in excess of the
Noteholders' Portion, the Collateral Agent herewith releases ("doet afstand
van") the right of pledge on such shares and RPP USA herewith accepts such
release. Such release shall be effective each time such excess has
occurred, and shall each time concern the shares with the highest share
numbering of the shares encumbered pursuant to Article 3.1.
3.2 Subject to the suspensive condition hereafter described, the Collateral
Agent hereby releases ("doet afstand van"), and RPP USA hereby accepts such
release, the right of pledge created pursuant to Article 3.1 on those
Present Shares and/or Future Shares which right of pledge triggers a
requirement to file with the SEC (or any other governmental agency)
separate financial statements of the Company in the event that Rule 3-10 or
Rule 3-16 of Regulation S-X under the Securities Act is amended, modified
or interpreted by the SEC to require (or is replaced with another rule or
regulation, or any other law, rule or regulation is adopted, which would
require), such filing. This release is granted under the suspensive
condition ("opschortende voorwaarde") from time to time that a filing
requirement as described in the preceding sentence has become effective.
The release shall only release the rights of pledge on that number of
shares which trigger the requirement to file, and shall each time concern
the shares with the highest share numbering of the shares encumbered
pursuant to Article 3.1.
Article 4
Further assurances
Each of the parties 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 the Collateral Agent
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 irrevocably 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 the date on which one or more of the Obligations become due and payable.
5.3 The US Borrowers, the Senior Secured Notes Trustee and the Pledgee
hereby acknowledge and the other Second Lien Creditors (pursuant to Section
10.1(b) of the Senior Secured Note Indenture) have acknowledged 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 and the Pledgee acknowledge and the other Second Lien Creditors
(pursuant to Section 10.1(b) of the Senior Secured Note Indenture) have
acknowledged 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 and the Pledgee agree and the other Second Lien Creditors
(pursuant to Section 10.1(b) of the Senior Secured Note Indenture) have
agreed that the US Security Agreement shall constitute the administration
agreement of such common property.
For the avoidance of doubt, the US Borrowers, the Senior Secured Notes
Trustee and the Pledgee and the other Second Lien Creditors (pursuant to
Section 10.1(b) of the Senior Secured Note Indenture) have acknowledged
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, and the other Second Lien Creditors (pursuant
to Section 10.1(b) of the Senior Secured Note Indenture) have agreed 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 ("Deductible Amount") equal
to the Received Amount in the manner as if the Deductible Amount were
received as a payment of the Obligations on the date of receipt by the
Collateral Agent of the Received Amount.
Article 6
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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 a
junior ranking 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 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
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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 Pledgor and the Collateral Agent hereby stipulate (within the meaning
of Article 2: 198(3) Dutch Civil Code) that the voting rights and all
other consensual rights attaching to the Shares are vested in ("toekomen
aan") the Collateral Agent subject to the fulfilment of each of the
following suspensive conditions ("opschortende voorwaarden") (i) that an
Event of Default has occurred, (ii) the Collateral Agent has given notice
to the Company and the Pledgor that it wishes to exercise such rights and
(iii) the rights of pledge on the Shares created by the First Deed of
Pledge have terminated. Upon receipt of such notification by the Company
and provided that the right of pledge on the Shares created by the First
Deed of Pledge have 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 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
Distributions on the Shares
Upon termination of the rights of pledge created under the First Deed of Pledge,
the Collateral Agent shall be entitled to receive and retain all cash dividends
paid in respect of the Shares as well as all other payments on the Shares,
provided, however, that the Collateral Agent hereby grants permission
(toestemming) to each Pledgor within the meaning of Article 3:246(4) NCC to
exercise these rights. Each Pledgor shall be so entitled, and the permission is
granted only as long as no Event of Default has occurred and is continuing and
as long as the Collateral Agent has not notified the Company and the relevant
Pledgor in writing that this permission is no longer granted.
Article 9
Immediate foreclosure
9.1 If an Event of Default shall have occurred and be continuing, and the
rights of pledge on the Shares created by the First Deed of Pledge have
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.
9.2 The Pledgor hereby waives its right pursuant to Article 3:251 paragraph 1
NCC, which waiver is hereby accepted by the Pledgee.
9.3 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 9, 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
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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. 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
9, which waiver is hereby accepted by the Pledgee.
9.4 If an Event of Default shall have occurred and be continuing and provided
that the rights of pledge on the Shares created by the First Deed of
Pledge have 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.
9.5 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.
9.6 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 9.
9.7 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.
9.8 The Senior Secured Notes Trustee acknowledges and agrees that the
obligations of the Pledgee as holder of the junior ranking 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 10
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
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 11
Currencies
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11.1 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.
11.2 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 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 13
Notices
13.1 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.
Article 14
Irrevocable power of attorney
14.1 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.
14.2 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 15
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 16
9
Termination; Release
16.1 Article 12.2 of the US Security Agreement shall apply to this Deed and the
rights of pledge created hereunder, other than as provided in Articles
15.2, 15.3 and 15.4 of this Deed.
16.2 The Pledgee herewith agrees, and the Pledgor herewith accepts, that this
Deed and the junior right of pledge created hereunder are subject to the
dissolving condition (ontbindende voorwaarde) that the liens on the
Securities, and the proceeds thereof, created pursuant to the US Pledge
Agreement, terminate in accordance with the terms thereof.
16.3 It is expressly agreed that the Collateral Agent (upon the direction of
the Required Secured Creditors, unless such direction is not required
pursuant to the US Pledge Agreement) will be entitled to terminate the
right of pledge created in this Deed in whole or in part by notice
("opzegging") to the relevant Pledgor, with a copy to the other parties of
this Deed.
16.4 The parties to this Deed agree that, upon termination of the right of
pledge by notice pursuant to Section 16.2 or Section 16.3 of this Deed,
the rights and obligations under this Deed can be terminated in whole or
in part by the Collateral Agent (acting upon the direction of the Required
Secured Creditors, unless such direction is not required pursuant to the
US Pledge Agreement) and the relevant Pledgor, without the consent of any
other party hereto, including the Additional Senior Secured Notes Trustee,
by means of a private deed (onderhandse akte).
16.5 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 junior
ranking right of pledge created hereunder.
Article 17
Headings descriptive
The headings in this Deed are for purposes of reference only and shall not limit
or define the meaning hereof.
Article 18
Applicable law and jurisdiction
18.1 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.
18.2 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 19
Acknowledgement
The person appearing, 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
and that the Company has received notice of the right of pledge to the extent
consisting of claims against the Company in accordance with Article 3:236(2) and
3:94(1) NCC.
Furthermore, the person appearing mentioned, 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 relevant Pledgor becomes
the holder thereof.
Article 20
Authority and powers of attorney
10
The person appearing has been granted five (5) powers of attorney by means of
five (5) non-notarial instruments of attorney. The instruments of attorney have
been attached to a deed of release of pledge of shares, executed today before
me, civil-law notary.
Article 21
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.
FINAL PART
The person appearing before me is 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 person appearing, she declared that she had taken note of
the contents of the deed, was 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 person appearing and me,
civil-law notary.
E.M. van Oirschot
B.Th. Derogee, civil law notary
ISSUED FOR TRUE COPY