COLLATERAL AGREEMENT
Exhibit
10.2
AGREEMENT
dated as of October 11, 2007 (this “Agreement”)
among
SYNUTRA INTERNATIONAL, INC., a Delaware corporation (the “Borrower”),
SYNUTRA, INC., an Illinois corporation (the “Pledged
Stock Issuer”)
and
ABN AMRO BANK N.V., as Collateral Agent (the “Collateral
Agent”)
and
Administrative Agent (the “Administrative
Agent”).
WITNESSETH:
WHEREAS,
the Borrower, ABN AMRO Bank N.V. as Administrative Agent and Collateral Agent,
ABN AMRO Bank N.V. as Arranger and the Lenders party thereto (the “Lenders”)
are
parties to a Loan Agreement of even date herewith (as the same may be amended
from time to time, the “Loan
Agreement”)
providing for credit extensions to and on behalf of the Borrower;
and
WHEREAS,
in order to induce the Collateral Agent, the Administrative Agent and the
Lenders to enter into the Loan Agreement, the Borrower has agreed to grant
a
continuing security interest in and to the Collateral (as hereafter defined)
to
secure the Borrower’s obligations under the Loan Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
Section
1.
Definitions.
(a)
Terms
Defined in the Loan Agreement.
Terms
defined in the Loan Agreement and not otherwise defined herein shall have,
as
used herein, the respective meanings provided for therein.
(b)
Additional
Definitions.
The
following additional terms, as used herein, have the following
meanings:
“Acceleration
Default”
means
an Event of Default which either (i) results in acceleration of the maturity
of
some or all of the Obligations or (ii) arises from a failure to pay the
principal amount of some or all of the Obligations at final
maturity.
“Collateral”
has
the
meaning assigned to such term in Section
3(a).
“Default”
and
“Event
of Default”
have
the meanings assigned such terms under the Loan Agreement and, for purposes
of
this Agreement only, Event of Default shall also include any payment defaults
by
the Pledged Stock Issuer or the Borrower arising under any other Loan
Document.
“Pledged
Stock”
means
(i) the 10,000 shares of common stock of the Pledged Stock Issuer owned by
the
Borrower as of the date hereof and (ii) any other capital stock required to
be
pledged to the Collateral Agent pursuant to Section
3(b).
“Pledged
Stock Issuer”
has
the
meaning specified in the introductory paragraph hereto.
“Post-Petition
Interest”
means
any interest that accrues after the commencement of any case, proceeding or
other action relating to the bankruptcy, insolvency or reorganization of the
Borrower (or would accrue but for the operation of applicable bankruptcy or
insolvency laws), whether or not such interest is allowed or allowable as a
claim in any such proceeding.
“Proceeds”
means
all proceeds of, and all other profits, products, rents or receipts, in whatever
form, arising from the collection, sale, lease, exchange, assignment, licensing
or other disposition of, or other realization upon, any Collateral, including
all claims of the Borrower against third parties for loss of, damage to or
destruction of, or for proceeds payable under, or unearned premiums with respect
to, policies of insurance in respect of, any Collateral.
“Secured
Obligations”
means
the obligations secured under this Agreement including (i) the Obligations,
(ii)
any note issued pursuant to any of the Loan Documents and (iii) any renewals
or
extensions of any of the foregoing.
“Security
Interests”
means
the security interests in the Collateral granted hereunder securing the Secured
Obligations.
“UCC”
means
the Uniform Commercial Code as in effect from time to time in the State of
New
York; provided
that, if
perfection or the effect of perfection or non-perfection or the priority of
the
Security Interests on any Collateral is governed by the Uniform Commercial
Code
as in effect in a jurisdiction other than New York, “UCC”
means
the Uniform Commercial Code as in effect from time to time in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
effect of perfection or non-perfection or priority.
Unless
otherwise defined herein or in the Loan Agreement, or unless the context
otherwise requires, all terms used herein which are defined in the UCC as in
effect on the date hereof shall have the meanings therein stated.
(c)
Terms
Generally.
The
definitions of terms herein (including those incorporated by reference to the
UCC or to another document) apply equally to the singular and plural forms
of
the terms defined. Whenever the context may require, any pronoun includes the
corresponding masculine, feminine and neuter forms. The words “include”,
“includes”
and
“including”
shall
be deemed to be followed by the phrase “without
limitation”.
The
word “will”
shall
be construed to have the same meaning and effect as the word “shall”.
Unless
the context requires otherwise, (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person’s successors and
permitted assigns, (iii) the words “herein”,
“hereof”
and
“hereunder”,
and
words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (iv) all references herein
to Sections, Exhibits and Schedules shall be construed to refer to Sections
of,
and Exhibits and Schedules to, this Agreement, and (v) the word “property”
shall
be construed to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights.
2
Section
2.
Representations
and Warranties.
The
Borrower represents and warrants as follows:
(a)
Title
to Pledged Stock.
The
Borrower owns all of the Pledged Stock, free and clear of any Liens other than
the Security Interests. All of the Pledged Stock has been duly authorized and
validly issued, and is fully paid and non-assessable, and is not subject to
options to purchase, claims or similar rights of any Person. The Borrower is
not
and will not become a party to or otherwise bound by any agreement, other than
this Agreement, which restricts in any manner the rights of the Lenders, the
Collateral Agent, the Administrative Agent or any present or future holder
of
any of the Pledged Stock with respect thereto.
(b)
Pledged
Stock. As
of the
date hereof, the Pledged Stock represents 100.0% of the issued and outstanding
common stock of the Pledged Stock Issuer.
(c)
Validity,
Perfection and Priority of Security Interests.
Upon
delivery of the certificates representing the Pledged Stock to the Collateral
Agent or its designee in accordance with Section
4
hereof,
the Collateral Agent will have a valid and perfected security interest in the
Collateral subject to no prior Lien. Except as set forth in Section
5,
no
registration, recordation or filing with any governmental body, agency or
official is required in connection with the execution or delivery of this
Agreement or necessary for the validity or enforceability hereof or for the
perfection or enforcement of the Security Interests. Neither the Borrower nor
any of its Subsidiaries has performed or will perform any acts which could
prevent the Collateral Agent from enforcing any of the terms and conditions
of
this Agreement or which would limit the Collateral Agent in any such
enforcement.
3
(d)
UCC
Filing Locations.
The
Borrower is duly organized, validly existing and in good standing under the
laws
of the State of Delaware.
(e)
Authorization;
No Contravention.
The
execution, delivery and performance by the Borrower of this Agreement has been
duly authorized by all necessary corporate action on its part, and does not
and
will not contravene the terms of its Organization Documents. The execution,
delivery and performance by the Borrower of this Agreement does not and will
not
(a) conflict with or result in any breach or contravention of, or the creation
of any Lien (other than those contemplated hereby) under (i) any Contractual
Obligation to which the Borrower is a party or (ii) any order, injunction,
writ
or decree of any Governmental Authority or any arbitral award to which the
Borrower or its property is subject or (b) violate any Law applicable to the
Borrower, this Agreement or any of the transactions contemplated
hereby.
(f)
Governmental
Authorization; Other Consents. Except
as
set forth in Section
5,
no
approval, consent, exemption, authorization, or other action by, or notice
to,
or filing with, any Governmental Authority or any other Person is necessary
or
required in connection with the execution, delivery or performance by, or
enforcement against, the Borrower or the Collateral of this Agreement or any
other Loan Document.
(g)
Binding
Effect.
This
Agreement has been duly executed and delivered by the Borrower. The Agreement
constitutes a legal, valid and binding obligation of the Borrower, enforceable
against it in accordance with its terms.
Section
3.
The
Security Interests. In
order
to secure the full and punctual payment of the Secured Obligations in accordance
with the terms thereof, and to secure the performance of all the obligations
of
the Borrower and the Pledged Stock Issuer hereunder:
(a)
The
Borrower hereby assigns and pledges to and with the Collateral Agent for the
benefit of the Administrative Agent and the Lenders and grants to the Collateral
Agent for the benefit of the Administrative Agent and the Lenders a security
interest in the Pledged Stock, and all of its rights and privileges with respect
to the Pledged Stock, and all income and profits thereon, and all interest,
dividends and other payments and distributions with respect thereto, and all
Proceeds of the foregoing (the “Collateral”).
On or
prior to the first Credit Extension, the Borrower shall have delivered the
certificate representing the Pledged Stock in pledge hereunder.
4
(b)
In
the
event that the Pledged Stock Issuer at any time issues any additional or
substitute shares of capital stock of any class to the Borrower, the Borrower
will immediately (i) pledge and deposit with the Collateral Agent certificates,
if any, representing such shares as additional security for the Secured
Obligations and (ii) take all other steps required to grant or maintain, as
applicable, a first priority security interest in such shares to the Collateral
Agent for the benefit of the Administrative Agent and the Lenders. All such
shares constitute Pledged Stock and are subject to all provisions of this
Agreement.
(c)
The
Security Interests are granted as security only and shall not subject the
Administrative Agent, the Collateral Agent or the Lenders to, or transfer or
in
any way affect or modify, any obligation or liability of the Borrower with
respect to any of the Collateral or any transaction in connection
therewith.
Section
4.
Delivery
of Pledged Stock.
All
certificates representing Pledged Stock delivered to the Collateral Agent or
its
designee by the Borrower pursuant hereto shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer
or
assignment in blank, with signatures appropriately guaranteed, and accompanied
by any required transfer tax stamps, all in form and substance satisfactory
to
the Collateral Agent.
Section
5.
Further
Assurances. (a)
The
Borrower agrees that it will, at its expense and in such manner and form as
the
Collateral Agent may reasonably require, execute, deliver, file and record
any
financing statement, specific assignment or other paper and take any other
action that may be necessary or desirable, or that the Collateral Agent may
reasonably request, in order to create, preserve, perfect or validate any
Security Interest or to enable the Collateral Agent to exercise and enforce
its
rights hereunder with respect to any of the Collateral. To the extent permitted
by applicable law, the Borrower hereby authorizes the Collateral Agent to
execute and file, in the name of the Borrower or otherwise, financing statements
(which may be carbon, photographic, photostatic or other reproductions of this
Agreement or of a financing statement relating to this Agreement) which the
Collateral Agent in its reasonable discretion may deem necessary or appropriate
to further perfect the Security Interests.
(b)
The
Borrower agrees that it will not change (i)
its
name, identity or corporate structure in any manner or (ii)
the
location of its chief executive office unless it shall have given the Collateral
Agent not less than 30 days’ prior notice thereof (or such shorter period
consented to by the Collateral Agent in its sole discretion).
5
Section
6.
Record Ownership of Pledged Stock. The
Collateral Agent may at any time or from time to time, in its sole discretion,
cause any or all of the Pledged Stock to be transferred of record into the
name
of the Collateral Agent or its nominee. The Borrower will promptly give to
the
Collateral Agent copies of any notices or other communications received by
it
with respect to Pledged Stock registered in the name of the Borrower and the
Collateral Agent will promptly give to the Borrower copies of any notices and
communications received by the Collateral Agent with respect to Pledged Stock
registered in the name of the Collateral Agent or its nominee.
Section
7.
Right to Receive Distributions on Collateral. The
Collateral Agent shall have the right to receive and, during the continuance
of
any Default, to retain as Collateral hereunder all dividends and other payments
and distributions made upon or with respect to the Collateral and the Borrower
shall take all such action as the Collateral Agent may deem necessary or
appropriate to give effect to such right. All such dividends and other payments
and distributions which are received by the Borrower shall be received in trust
for the benefit of the Collateral Agent, the Administrative Agent and the
Lenders and, if the Collateral Agent so directs during the continuance of a
Default, shall be segregated from other funds of the Borrower and shall,
forthwith upon demand by the Collateral Agent during the continuance of a
Default, be paid over to the Collateral Agent as Collateral in the same form
as
received (with any necessary endorsement). After all Defaults have been cured,
the Collateral Agent’s right to retain dividends, interest and other payments
and distributions under this Section
7
shall
cease and the Collateral Agent shall pay over to the Borrower any such
Collateral retained by it during the continuance of a Default.
Section
8.
Right
to Vote Pledged Stock.
Unless
an Acceleration Default shall have occurred and be continuing, the Borrower
shall have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to the Pledged Stock, and the Collateral
Agent shall, upon receiving a written request from the Borrower accompanied
by a
certificate signed by its principal financial officer stating that no Default
has occurred and is continuing, deliver to the Borrower or as specified in
such
request such proxies, powers of attorney, consents, ratifications and waivers
in
respect of any of the Pledged Stock which is registered in the name of the
Collateral Agent or its nominee as shall be specified in such request and be
in
form and substance satisfactory to the Collateral Agent.
If
an
Acceleration Default shall have occurred and be continuing, the Collateral
Agent
shall have the right to the extent permitted by law and the Borrower shall
take
all such action as may be necessary or appropriate to give effect to such right,
to vote and to give consents, ratifications and waivers, and take any other
action with respect to any or all of the Pledged Stock with the same force
and
effect as if the Collateral Agent were the absolute and sole owner
thereof.
6
Section
9.
General
Authority.
The
Borrower hereby irrevocably appoints the Collateral Agent its true and lawful
attorney, with full power of substitution, in the name of the Borrower, the
Collateral Agent, the Administrative Agent, the Lenders or otherwise, for the
sole use and benefit of the Collateral Agent, the Administrative Agent and
the
Lenders, but at the expense of the Borrower, to the extent permitted by law
to
exercise, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect
to
all or any of the Collateral:
(a)
to
demand, xxx for, collect, receive and give acquittance for any and all monies
due or to become due upon or by virtue thereof,
(b)
to
settle, compromise, compound, prosecute or defend any action or proceeding
with
respect thereto,
(c)
to
sell,
transfer, assign or otherwise deal in or with the same or the proceeds or avails
thereof, as fully and effectually as if the Collateral Agent were the absolute
owner thereof, and
(d)
to
extend
the time of payment of any or all thereof and to make any allowance and other
adjustments with reference thereto;
provided
that the
Collateral Agent (x) shall not sell or otherwise dispose of the Pledged Stock
unless an Acceleration Default has occurred and is continuing and (y) shall
give
the Borrower at least ten days’ prior written notice of the time and place of
any public sale thereof or the time after which any private sale or other
intended disposition thereof will be made. Any such notice shall (i) contain
the
information specified in UCC Section 9-613, (ii) be authenticated and (iii)
be
sent to the parties required to be notified pursuant to UCC Section 9-611(c);
provided
that, if
the Collateral Agent fails to comply with this sentence in any respect, its
liability for such failure shall be limited to the liability (if any) imposed
on
it as a matter of law under the UCC.
7
Section
10.
Remedies
upon Event of Default. If
any
Event of Default shall have occurred and be continuing, the Collateral Agent
may
exercise on behalf of the Administrative Agent and the Lenders all the rights
of
a secured party under the UCC (whether or not in effect in the jurisdiction
where such rights are exercised) and, in addition, the Collateral Agent may,
without being required to give any notice, except as herein provided or as
may
be required by mandatory provisions of law, (i) apply the cash, if any, then
held by it as Collateral as specified in Section
13
and (ii)
if there shall be no such cash or if such cash shall be insufficient to pay
all
the Secured Obligations in full, but only if an Acceleration Default has
occurred and is continuing, sell the Collateral or any part thereof at public
or
private sale or at any broker’s board or on any securities exchange, for cash,
upon credit or for future delivery, and at such price or prices as the
Collateral Agent may deem satisfactory. The Administrative Agent or any of
the
Lenders may be the purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily sold in a recognized
market or is of a type which is the subject of widely distributed standard
price
quotations, at any private sale). The Collateral Agent is authorized, in
connection with any such sale, if it deems it advisable so to do, (A) to
restrict the prospective bidders on or purchasers of any of the Pledged Stock
to
a limited number of sophisticated investors who will represent and agree that
they are purchasing for their own account for investment and not with a view
to
the distribution or sale of any of such Pledged Stock, (B) to cause to be placed
on certificates for any or all of the Pledged Stock or on any other securities
pledged hereunder a legend to the effect that such security has not been
registered under the United States Securities Act of 1933, as amended, and
may
not be disposed of in violation of the provision of said Act, and (C) to impose
such other limitations or conditions in connection with any such sale as the
Collateral Agent deems necessary or advisable in order to comply with said
Act
or any other law. The Borrower will execute and deliver such documents and
take
such other action as the Collateral Agent deems necessary or advisable in order
that any such sale may be made in compliance with law. Upon any such sale the
Collateral Agent shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the Collateral so sold absolutely and free from any claim or right of
whatsoever kind, including any equity or right of redemption of the Borrower
which may be waived, and the Borrower, to the extent permitted by law, hereby
specifically waives all rights of redemption, stay or appraisal which it has
or
may have under any law now existing or hereafter adopted. The notice (if any)
of
such sale required by Section
9
shall
(1) in the case of a public sale, state the time and place fixed for such sale,
(2) in the case of a sale at a broker’s board or on a securities exchange, state
the board or exchange at which such sale is to be made and the day on which
the
Collateral, or the portion thereof so being sold, will first be offered for
sale
at such board or exchange, and (3) in the case of a private sale, state the
day
after which such sale may be consummated. Any such public sale shall be held
at
such time or times within ordinary business hours and at such place or places
as
the Collateral Agent may fix in the notice of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate parcels, as
the
Collateral Agent may determine. The Collateral Agent shall not be obligated
to
make any such sale pursuant to any such notice. The Collateral Agent may,
without notice or publication, adjourn any public or private sale or cause
the
same to be adjourned from time to time by announcement at the time and place
fixed for the sale, and such sale may be made at any time or place to which
the
same may be so adjourned. In the case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so sold may be
retained by the Collateral Agent until the selling price is paid by the
purchaser thereof, but the Collateral Agent shall not incur any liability in
the
case of the failure of such purchaser to take up and pay for the Collateral
so
sold and, in the case of any such failure, such Collateral may again be sold
upon like notice. The Collateral Agent, instead of exercising the power of
sale
herein conferred upon it, may proceed by a suit or suits at law or in equity
to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction.
8
Section
11.
Expenses. Each
of
the Borrower and the Pledged Stock Issuer jointly and severally agrees that
it
will forthwith upon demand pay to the Collateral Agent:
(a)
the
amount of any taxes which the Collateral Agent may have been required to pay
by
reason of the Security Interests or to free any of the Collateral from any
Lien
thereon, and
(b)
the
amount of any and all out-of-pocket expenses, including the fees and
disbursements of counsel and of any other experts, which the Collateral Agent
may incur in connection with (i)
the
administration or enforcement of this Agreement, including such expenses as
are
incurred to preserve the value of the Collateral and the validity, perfection,
rank and value of any Security Interest, (ii)
the
collection, sale or other disposition of any of the Collateral, (iii)
the
exercise by the Collateral Agent of any of the rights conferred upon it
hereunder or (iv)
any
Default or Event of Default.
Any
such
amount not paid on demand shall bear interest at the rate equal to the Default
Rate and shall be treated as additional Secured Obligations
hereunder.
Section
12.
Limitation on Duty of Collateral Agent in Respect of Collateral; Indemnity.
(a)
Beyond
the exercise of reasonable care in the custody thereof, the Collateral Agent
shall have no duty as to any Collateral in its possession or control or in
the
possession or control of any agent or bailee or any income thereon or as to
the
preservation of rights against prior parties or any other rights pertaining
thereto. The Collateral Agent shall be deemed to have exercised reasonable
care
in the custody and preservation of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that which it accords
its own property, and shall not be liable or responsible for any loss or damage
to any of the Collateral, or for any diminution in the value thereof, by reason
of the act or omission of any agent or bailee selected by the Collateral Agent
in good faith.
In no
event shall the Collateral Agent be liable to the Borrower or the Pledged Stock
Issuer or any other party to this Agreement for any consequential (being loss
of
business, goodwill, opportunity or profit) or punitive loss or damages, even
if
advised of the possibility of such loss or damage.
9
(b)
Each
of
the Borrower and the Pledged Stock Issuer agrees to be jointly and severally
responsible for and will indemnify each of the Collateral Agent, any predecessor
Collateral Agent and their agents, employees, officers and directors for, and
hold it harmless against, any loss or liability or expense incurred by it
without negligence or willful misconduct on its part arising out of or in
connection with the acceptance or administration of this Agreement and its
duties under this Agreement, including the costs and expenses of defending
itself against any claim or liability and of complying with any process served
upon it or any of its officers in connection with the exercise or performance
of
any of its powers or duties under this Agreement.
(c)
This
Section
12
shall
survive the termination of the Security Interests and the release of the
Collateral.
Section
13.
Application of Proceeds. Upon
the
occurrence and during the continuance of an Event of Default, the proceeds
of
any sale of, or other realization upon, all or any part of the Collateral and
any cash held shall be applied by the Collateral Agent in the following order
of
priorities:
first,
to pay
the expenses of such sale or other realization, including reasonable
compensation to agents and counsel for the Collateral Agent, and all expenses,
liabilities and advances incurred or made by the Collateral Agent in connection
therewith, and any other unreimbursed expenses for which the Collateral Agent,
the Administrative Agent or the Lenders are to be reimbursed pursuant to Section
10.04 of the Loan Agreement or Section
11
hereof
and unpaid fees owing to the Collateral Agent, the Administrative Agent or
the
Lenders under any Loan Document;
second,
to pay
ratably all interest (including Post-Petition Interest, to the fullest extent
permitted by applicable Law) on the Secured Obligations, until payment in full
of all such interest shall have been made;
third,
to pay
the unpaid principal of the Secured Obligations, until payment in full of the
principal of the Secured Obligations shall have been made;
10
fourth,
to pay
all other Secured Obligations, until payment in full of all such other Secured
Obligations shall have been made; and
finally,
to
payment to the Borrower or its successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
proceeds.
The
Collateral Agent may make distributions hereunder in cash or in kind or, on
a
ratable basis, in any combination thereof.
Section
14.
Concerning the Collateral Agent. The
provisions of Article 7 of the Loan Agreement shall inure to the benefit of
the
Collateral Agent in respect of this Agreement and shall be binding upon the
parties to the Loan Agreement in such respect. In furtherance and not in
derogation of the rights, privileges and immunities of the Collateral Agent
therein set forth:
(a)
The
Collateral Agent is authorized to take all such action as is provided to be
taken by it as Collateral Agent hereunder and all other action reasonably
incidental thereto. As to any matters not expressly provided for herein
(including, without limitation, the timing and methods of realization upon
the
Collateral) the Collateral Agent shall act or refrain from acting in accordance
with written instructions from the Administrative Agent or, in the absence
of
such instructions, in accordance with its discretion.
(b)
The
Collateral Agent shall not be responsible for the existence, genuineness or
value of any of the Collateral or for the validity, perfection, priority or
enforceability of the Security Interests in any of the Collateral, whether
impaired by operation of law or by reason of any action or omission to act
on
its part hereunder. The Collateral Agent shall have no duty to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement by the Borrower.
Section
15.
Appointment of Co-Collateral Agents. At
any
time or times, in order to comply with any legal requirement in any
jurisdiction, the Collateral Agent may appoint another bank or trust company
or
one or more other persons, either to act as co-collateral agent or co-collateral
agents, jointly with the Collateral Agent, or to act as separate collateral
agent or collateral agents on behalf of the Administrative Agent and the Lenders
with such power and authority as may be necessary for the effectual operation
of
the provisions hereof and may be specified in the instrument of appointment
(which may, in the discretion of the Collateral Agent, include provisions for
the protection of such co-collateral agent or separate collateral agent similar
to the provisions of Section
14
hereof).
11
Section
16.
Termination of Security Interests; Release of Collateral. Upon
the
repayment in full of all Secured Obligations and the termination of all lending
commitments under the Loan Agreement, the Security Interests shall terminate
and
all rights to the Collateral shall revert to the Borrower. At any time and
from
time to time prior to such termination of the Security Interests, the Collateral
Agent may release any of the Collateral with the prior written consent of the
Administrative Agent. Upon any such termination of the Security Interests or
release of Collateral, the Collateral Agent will, at the expense of the
Borrower, execute and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence the termination of the Security Interests
or the release of such Collateral, as the case may be.
Section
17.
Acknowledgment by the Pledged Stock Issuer, Stop Transfer Instructions.
The
Pledged Stock Issuer hereby acknowledges the Security Interests in the Pledged
Stock. The Pledged Stock Issuer agrees to effect or recognize any transfer
of
the Pledged Stock only if and to the extent such transfer is made in accordance
with the provisions of this Agreement. The Pledged Stock Issuer and the Borrower
shall refrain from effecting any proposed transfer of Pledged Stock without
the
prior written consent of the Collateral Agent.
Section
18.
Notices. All
notices hereunder shall be (a) in the case of the Borrower; in writing
(including by facsimile transmission) and mailed, faxed or delivered to the
address, facsimile number or electronic mail address specified for notices
to
the Borrower on Schedule A hereto, (b) in the case of the Pledged Stock Issuer;
in writing (including by facsimile transmission) and mailed, faxed or delivered
to the address, facsimile number or electronic mail address specified for
notices to the Pledged Stock Issuer on Schedule A hereto, (c) in the case of
the
Collateral Agent; in writing (including by facsimile transmission) and mailed,
faxed or delivered to the address, facsimile number or electronic mail address
specified for notices to Collateral Agent on Schedule A hereto and (d) in the
case of any other party, given in accordance with Section 10.02 of the Loan
Agreement.
Section
19.
Waivers, Non-exclusive Remedies. No
failure on the part of the Collateral Agent to exercise, and no delay in
exercising and no course of dealing with respect to, any right under this
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise by the Collateral Agent of any right under any Loan Document preclude
any other or further exercise thereof or the exercise of any other right. The
rights in this Agreement and the other Loan Documents are cumulative and are
not
exclusive of any other remedies provided by law.
Section
20.
Successors and Assigns. This
Agreement is for the benefit of the Collateral Agent, the Administrative Agent
and the Lenders and their successors and assigns (if any), and in the event
of
an assignment of all or any of the Secured Obligations, the rights hereunder,
to
the extent applicable to the indebtedness so assigned, may be transferred with
such indebtedness. This Agreement shall be binding on the Borrower and its
successors and assigns.
12
Section
21.
Amendments and Waivers. Neither
this Agreement nor any provision hereof may be changed, waived, discharged
or
terminated orally, but only in writing signed by the Borrower and the Collateral
Agent with the consent of the Administrative Agent.
Section
22.
New
York Law. THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE; PROVIDED
THAT THE
ADMINISTRATIVE
AGENT AND
COLLATERAL AGENT SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
SECTION
23.
Submission to Jurisdiction. ANY
LEGAL ACTION
OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX
XXXXX XX XXX XXXX SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY OR OF
THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH
PARTY HERETO IRREVOCABLY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
EACH PARTY HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE. THE
BORROWER AGREES THAT A FINAL JUDGMENT IN ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH A COURT SHALL BE CONCLUSIVE AND BINDING UPON IT AND WILL BE
GIVEN EFFECT IN ANY OTHER JURISDICTION TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW AND MAY BE ENFORCED IN ANY COURT TO THE JURISDICTION OF WHICH
SUCH PARTY IS OR MAY BE SUBJECT BY A SUIT UPON SUCH JUDGMENT, PROVIDED
THAT
SERVICE OF PROCESS IS EFFECTED UPON IT IN ONE OF THE MANNERS SPECIFIED HEREIN
OR
AS OTHERWISE PERMITTED BY LAW.
13
Section
24.
Waiver of Right to Jury Trial.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES, TO
THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE
DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section
25.
Process Agent.
Without
prejudice to any other mode of service allowed under any relevant Law, each
of
the Borrower and the Pledged Stock Issuer:
(a) irrevocably
shall have appointed, on or prior to the first Credit Extension, CT Corporation
System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000 as its agent for
service of process in relation to any proceedings before the courts of the
State
of New York sitting in the Borough of Manhattan, New York City or of the United
States for the Southern District of such State in connection with this
Agreement; and
(b) agrees
that failure by a process agent to notify it of the process will not invalidate
the proceedings concerned.
Section
26.
Severability. If
any
provision hereof is invalid or unenforceable in any jurisdiction, then, to
the
fullest extent permitted by law, (i) the other provisions hereof shall remain
in
full force and effect in such jurisdiction and shall be liberally construed
in
favor of the Collateral Agent, the Administrative Agent and the Lenders in
order
to carry out the intentions of the parties hereto as nearly as may be possible;
and (ii) the invalidity or unenforceability of any provision hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
14
Section
27.
Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
an original but all of which together shall constitute one
instrument.
15
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
| |
|
|
| By: |
/s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
||
|
Title: Chief
Executive Officer
|
||
|
SYNUTRA,
INC.
|
||
| |
|
|
| By: |
/s/
Xxxxx Xxxxx
|
|
|
Name: Xxxxx
Xxxxx
|
||
|
Title: Chairman
|
||
|
ABN
AMRO BANK N.V., as Collateral Agent and Administrative
Agent
|
||
| |
|
|
| By: |
/s/
Xxxx Xxxx Xxxx
|
|
|
Name: Xxxx
Xxxx Xxxx
|
||
|
Title: Senior
Vice President
|
||
| By: |
/s/
Xxxxx Xx
|
|
|
Name: Xxxxx
Xx
|
||
|
Title: Assistant
Manager
|
||
−
Collateral Agreement Signature Page −
Schedule
A
NOTICE
ADDRESSES
BORROWER:
0000
Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx,
Xxxxxxxx 00000
Xxxxxx
Xxxxxx
Attn:
Xxxxxx Xxxxx
Facsimile:
x0-000-000-0000
E-mail:
xxxxxx@xxxxxxx.xxx
PLEDGED
STOCK ISSUER:
Synutra,
Inc.
0000
Xxxxxxxx Xxx
Xxxxxxxxxxxx,
XX 00000
Xxxxxx
Xxxxxx
Attn:
Xxxxxx Xxxxx
Facsimile:
x0-000-000-0000
E-mail:
xxxxxx@xxxxxxx.xxx
COLLATERAL
AGENT:
ABN
AMRO
Bank N.V.
Xxx
Xxxxxxx Xxxx
Xxxxx
00,
Xxxxx Xxxxx
Xxxxxxxxx
000000
Attention:
Xxxx Xxxx Xxxx / Xxxxx Xx
Telephone:
x00-0000-0000 / 7342
Facsimile:
x00-0000-0000 / 6035
E-Mail:
xxxx.xxxx.xxxx@xx.xxxxxxx.xxx; xxxxx.xx@xx.xxxxxxx.xxx
