COLLATERAL AGREEMENT
Exhibit
10.2
AGREEMENT
dated as of April 19, 2007 (this “Agreement”)
among
BEAMS POWER INVESTMENT LIMITED, an International Business Companies Act company
re-registered as a BVI business company organized under the laws of the British
Virgin Islands (the “Lien
Grantor”),
SYNUTRA INTERNATIONAL, INC., a Delaware corporation (the “Issuer”)
and
ABN AMRO BANK N.V., HONG KONG BRANCH as lender (the “Lender”)
and as
collateral agent (the “Collateral
Agent”).
WITNESSETH:
WHEREAS,
the Obligors (as defined therein) and the Lender 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 Issuer;
WHEREAS,
all of the equity interests in the Lien Grantor are owned by certain of the
Obligors under the Loan Agreement; and
WHEREAS,
in order to induce the Lender to enter into the Loan Agreement, the Lien Grantor
has agreed to grant a continuing security interest in and to the Collateral
(as
hereafter defined) to secure the Obligors’ 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.
“BC
Act”
has
the
meaning specified in Section 5(c).
“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 Issuer or the Lien Grantor arising under any other Loan
Document.
“Issuer”
has
the
meaning specified in the introductory paragraph hereto.
“Pledged
Stock”
means
(i) the 25,000,000 shares of common stock of the Issuer owned by the Lien
Grantor as of the date hereof and (ii) any other capital stock required to
be
pledged to the Collateral Agent pursuant to Section 3(b).
“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 any
Obligor (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 Lien Grantor 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.
“Register
of Charges”
has
the
meaning specified in Section 5(c).
“Registrar”
has
the
meaning specified in Section 5(d).
“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.
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Section
2. Representations
and Warranties.
The
Lien Grantor represents and warrants as follows:
(a) Title
to Pledged Stock.
The
Lien Grantor 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 Lien Grantor
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 Lender,
the
Collateral 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 at least 49.9% of the issued
and
outstanding common stock of the 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 Lien Grantor 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.
(d) Lien
Grantor and UCC Filing Locations.
The
Lien Grantor is duly organized, validly existing and in good standing under
the
laws of the British Virgin Islands.
(e) Authorization;
No Contravention.
The
execution, delivery and performance by the Lien Grantor 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 Lien Grantor 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 Lien Grantor is a party or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which the Lien Grantor or its property is subject or (b) violate any Law
applicable to the Lien Grantor, 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 Lien Grantor or the Collateral
of
this Agreement or any other Loan Document.
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(g) Binding
Effect.
This
Agreement has been duly executed and delivered by the Lien Grantor. The
Agreement constitutes a legal, valid and binding obligation of the Lien Grantor,
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 Lien Grantor and the Issuer hereunder:
(a) The
Lien
Grantor hereby assigns and pledges to and with the Collateral Agent for the
benefit of the Lender and grants to the Collateral Agent for the benefit of
the
Lender 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”).
Contemporaneously with the execution and delivery hereof, the Lien Grantor
is
delivering the certificates representing the Pledged Stock in pledge
hereunder.
(b) In
the
event that the Issuer at any time issues any additional or substitute shares
of
capital stock of any class to the Lien Grantor, the Lien Grantor will
immediately (i) pledge and deposit with the Collateral Agent certificates,
if
any, representing a pro
rata
portion
of such shares as additional security for the Secured Obligations that is equal
to the ratio of the Pledged Stock to the aggregate shares of common stock of
the
Issuer owned by the Lien Grantor on the date hereof 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 Lender.
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
Collateral Agent or the Lender to, or transfer or in any way affect or modify,
any obligation or liability of the Lien Grantor 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 Lien Grantor pursuant hereto shall be (x) 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 and (y) accompanied by a completed notice
to the stock transfer agent of the Issuer as contemplated by Section 17 below.
Section
5. Further
Assurances.
(a) The
Lien
Grantor 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 Lien Grantor hereby authorizes the Collateral Agent
to
execute and file, in the name of the Lien Grantor 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.
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(b) The
Lien
Grantor agrees that it will not change Section 6 its name, identity or corporate
structure in any manner or Section 7 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).
(c) The
Lien
Grantor shall enter, or shall procure the entry, in its register of relevant
charges (the “Register
of Charges”)
maintained by the Lien Grantor pursuant to Part VIII of the BVI Business
Companies Act, 2004 (as the same may be amended from time to time) (the
“BC
Act”)
such
particulars regarding the charge created by this Agreement as are specified
in
section 162 of the BC Act (or any similar provision in any statute pursuant
to
which the Lien Grantor is incorporated or existing from time to time) and submit
a copy of such revised Register of Charges to its registered agent in the
British Virgin Islands to keep at the Lien Grantor’s registered office and at
the office of its registered agent in the British Virgin Islands.
(d) The
Lien
Grantor shall make an application, or procure that an application is made,
in
the approved form to the Registrar of Corporate Affairs in the British Virgin
Islands (the “Registrar”)
to
register the charge created by this Agreement in the register of registered
charges kept by the Registrar for the Lien Grantor and, forthwith upon receipt
by the Lien Grantor of the certificate of registration of the charge issued
by
the Registrar, send a copy of such certificate of registration to the Issuer
and
the Collateral Agent.
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 Lien Grantor 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 Lien Grantor
and
the Collateral Agent will promptly give to the Lien Grantor 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 Lien
Grantor 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 Lien Grantor shall be received
in
trust for the benefit of the Collateral Agent and the Lender and, if the
Collateral Agent so directs during the continuance of a Default, shall be
segregated from other funds of the Lien Grantor 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 Lien
Grantor any such Collateral retained by it during the continuance of a
Default.
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Section
8. Right
to Vote Pledged Stock.
Unless
an Acceleration Default shall have occurred and be continuing, the Lien Grantor
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 Obligor accompanied
by a
certificate signed by its principal financial officer stating that no Default
has occurred and is continuing, deliver to the Lien Grantor 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 Lien Grantor 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.
Section
9. General
Authority.
The
Lien Grantor hereby irrevocably appoints the Collateral Agent its true and
lawful attorney, with full power of substitution, in the name of the Lien
Grantor, the Collateral Agent, the Lender or otherwise, for the sole use and
benefit of the Collateral Agent and the Lender, but at the expense of the Lien
Grantor, 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 Lien Grantor 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.
6
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 Lender 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 Lender 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
Lien Grantor 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 Lien Grantor which
may
be waived, and the Lien Grantor, 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.
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Section
11. Expenses.
Each of
the Lien Grantor and the 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 Section 14 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, Section 15 the collection, sale or other disposition of any of the
Collateral, Section 16 the exercise by the Collateral Agent of any of the rights
conferred upon it hereunder or Section 17 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 Lien
Grantor or the 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.
(b) Each
of
the Lien Grantor and the 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.
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(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
or
the Lender is to be reimbursed pursuant to Section 9.04 of the Loan Agreement
or
Section 11 hereof and unpaid fees owing to the Collateral Agent or the Lender
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;
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 Lien Grantor 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 Lender 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 Lien Grantor.
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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 Lender 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).
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 Lien Grantor.
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 Lender. Upon any such termination of the Security
Interests or release of Collateral, the Collateral Agent will, at the expense
of
the Lien Grantor, execute and deliver to the Lien Grantor such documents as
the
Lien Grantor shall reasonably request to evidence the termination of the
Security Interests or the release of such Collateral, as the case may be,
including but not limited to a notice to the stock transfer agent of the Pledged
Stock.
Section
17. Acknowledgment
by the Issuer, Stop Transfer Instructions.
The
Issuer hereby acknowledges the Security Interests in the Pledged Stock. The
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. Prior to the date hereof, the Issuer and the Lien Grantor have
instructed the stock transfer agent for the Pledged Stock by means of delivery
of a notice in substantially the form of Exhibit A hereto to refrain from
effecting any proposed transfer of Pledged Stock without the prior written
consent of the Collateral Agent and the Issuer has delivered a copy of such
notice, acknowledged and confirmed by the stock transfer agent, to the
Collateral Agent.
Section
18. Notices.
All
notices hereunder shall be (x) in the case of the Lien Grantor; 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 Lien Grantor on Schedule A hereto, (y) 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 (z) in the case of any
other party, given in accordance with Section 9.02 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.
10
Section
20. Successors
and Assigns.
This
Agreement is for the benefit of the Collateral Agent and the Lender 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 Lien Grantor and its successors and
assigns.
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 Lien Grantor and the
Collateral Agent with the consent of the Lender.
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 LENDER 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 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 LIEN GRANTOR 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.
Section
24. Waiver
of Right to Jury Trial.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES 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.
11
Section
25. Process
Agent.
Without
prejudice to any other mode of service allowed under any relevant Law, each
of
the Lien Grantor and the Issuer:
(a) irrevocably
appoints 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 and the Lender 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.
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.
12
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.
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BEAMS
POWER INVESTMENT LIMITED
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By:
_________________________________
Name:
Title
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By:
_________________________________
Name:
Title
|
|
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ABN
AMRO BANK N.V., HONG KONG BRANCH, as Collateral Agent
|
|
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By:
_________________________________
Name:
Title
|
|
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By:
_________________________________
Name:
Title
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ABN
AMRO BANK N.V., HONG KONG BRANCH, as Lender
|
|
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By:
_________________________________
Name:
Title
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|
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By:
_________________________________
Name:
Title
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13
Schedule
A
NOTICE
ADDRESSES
LIEN
GRANTOR:
Beams
Power Investment Limited
Akara
Bldg., 00 Xx Xxxxxx Xxxxxx
Xxxxxxx
Xxx I,
Road
Town, Tortola
British
Virgin Islands
Attn:
Xxxxxxx Xxxx
Facsimile:
x00-00-0000-0000
E-mail:
xxxxxxxxxx@xxxxx.xxx
COLLATERAL
AGENT:
ABN
AMRO
Bank N.V., Hong Kong Branch
38/F,
Xxxxxx Kong Center
2
Queen’s
Road Central
Hong
Kong
Attn:
Xxxxxxx Xxx / Xxxxx Xxx / Xxxxxx Xxxx / Xxxxxxx Xxxxx / Xxxxxxxxx
Xxx
Facsimile:
x00-0-0000-0000 / 2700-3836 / 2700-3300
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E-mail:
|
xxxxxxx.xxx@xx.xxxxxxx.xxx
/ xxxxx.xxx@xx.xxxxxxx.xxx / xxxxxx.xxxx@xx.xxxxxxx.xxx /
xxxxxxx.xxxxx@xx.xxxxxxx.xxx / xxxxxxxxx.xxx@xx.xxxxxxx.xxx
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S-1
Exhibit
A
FORM
OF NOTICE OF PLEDGE OF PLEDGED STOCK TO
SYNUTRA
STOCK TRANSFER AGENT
[LETTERHEAD
OF ISSUER]
U.S.
Stock Transfer Corporation
0000
Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
XX 00000-0000
Xxxxxx
Xxxxxx
Attention:
Xxxx Xxxxxx
Facsimile:
x0-000-000-0000
Re: Shares
of
Common Stock of Synutra International, Inc. - Notice of Pledge and
Limitation on Transfers
Beams
Power Investment Limited and Synutra International, Inc. hereby notify U.S.
Stock Transfer Corporation that the shares evidenced by the share certificate
numbered [_____________] of Synutra International, Inc. (the “Pledged
Stock”)
on the
date hereof registered in the name of Beams Power Investment Limited are pledged
to ABN AMRO Bank N.V., Hong Kong Branch, as Collateral Agent (“Collateral
Agent”)
under
the Collateral Agreement dated April 19, 2007 among Beams Power Investment
Limited, Synutra International, Inc. and ABN AMRO Bank N.V., Hong Kong Branch,
for the benefit of ABN AMRO Bank N.V., Hong Kong Branch as Lender under the
Loan
Agreement dated April 19, 2007 among Synutra International, Inc., Xxxxx Xxxxx,
Xxxxxxx Xxxx and ABN AMRO Bank N.V., Hong Kong Branch.
Beams
Power Investment Limited and Synutra International, Inc. hereby direct and
request that U.S. Stock Transfer Corporation shall not register or effect any
transfer of the Pledged Stock without the written consent of the Collateral
Agent. The direction and request set forth in the preceding sentence shall
be
revocable only with the written consent of the Collateral Agent.
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BEAMS
POWER INVESTMENT LIMITED
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|
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By:
_________________________________
Name:
Title:
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A-1
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By:
_________________________________
Name:
Title:
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A-2
