AMENDED AND RESTATED PLEDGE AGREEMENT Dated as of July 31, 2007 From The Pledgors referred to herein as Pledgors to Citibank, N.A. as Agent
EXECUTION
VERSION
AMENDED
AND RESTATED PLEDGE AGREEMENT
Dated
as
of July 31, 2007
From
The
Pledgors referred to herein
as
Pledgors
to
Citibank,
N.A.
as
Agent
TABLE
OF CONTENTS
Page
|
||||
Section
1.
|
Definitions
|
3
|
||
Section
2.
|
Grant
of Security
|
6
|
||
Section
3.
|
Security
for Obligations
|
6
|
||
Section
4.
|
Pledgors
Remain Liable
|
7
|
||
Section
5.
|
Delivery
and Control of Security Collateral
|
7
|
||
Section
6.
|
Representations
and Warranties
|
7
|
||
Section
7.
|
Further
Assurances
|
8
|
||
Section
8.
|
Post-Closing
Changes
|
10
|
||
Section
9.
|
Voting
Rights; Dividends; Etc.
|
10
|
||
Section
10.
|
Transfers
and Other Liens; Additional Shares
|
11
|
||
Section
11.
|
Agent
Appointed Attorney-in-Fact
|
11
|
||
Section
12.
|
Agent
May Perform
|
12
|
||
Section
13.
|
Remedies
|
12
|
||
Section
14.
|
Indemnity
and Expenses
|
13
|
||
Section
15.
|
Amendments;
Waivers; Additional Pledgors; Etc.
|
14
|
||
Section
16.
|
Notices,
Etc.
|
14
|
||
Section
17.
|
Continuing
Security Interest; Assignments Under the Credit Agreement
|
14
|
||
Section
18.
|
Release;
Termination
|
15
|
||
Section
19.
|
Reference
to and Effect on the Pledge Agreement
|
15
|
||
Section
20.
|
Execution
in Counterparts
|
15
|
||
Section
21.
|
Jurisdiction,
Etc.
|
15
|
||
Section
22.
|
Governing
Law
|
16
|
Schedules
Schedule I
|
-
|
Type
of Organization, Jurisdiction Of Organization and Organizational
Identification Number
|
Schedule II
|
-
|
Pledged
Equity
|
Schedule III
|
-
|
Changes
in Name, Etc.
|
Exhibit
-
|
Form
of Pledge Agreement Supplement
|
2
AMENDED
AND RESTATED PLEDGE AGREEMENT
AMENDED
AND RESTATED PLEDGE AGREEMENT dated as of July 31, 2007 (the “Agreement”)
made
by Chemtura Corporation, a Delaware corporation (the “Borrower”),
the
other Persons listed on the signature pages hereof and the Additional Pledgors
(as defined in Section 15) (the Borrower, the Persons so listed and the
Additional Pledgors being, collectively, the “Pledgors”),
to
Citibank, N.A., as Agent (as such term is defined in the Credit Agreement
(as
hereinafter defined)). Capitalized terms defined in the Credit Agreement
and not
otherwise defined in Section 1 of this Agreement are used in this Agreement
as
defined in the Credit Agreement.
PRELIMINARY
STATEMENTS.
(1) The
Borrower has entered into a Credit Agreement dated as of July 1, 2005 with
the
Lenders and the Agent, which is being amended and restated as of the date
hereof
(said Agreement, as it may hereafter be further amended, amended and restated,
supplemented or otherwise modified from time to time, being the “Credit
Agreement”).
(2) The
Security Period commenced on May 15, 2007, and pursuant to Section 5.01(j)
of
the Credit Agreement, the Pledgors entered into a Pledge Agreement on June
14,
2007 in order to grant to the Agent for the ratable benefit of the Secured
Parties a security interest in the Collateral (the “Existing
Pledge Agreement”).
(3) In
connection with the amendment and restatement of the Credit Agreement, the
Pledgors are entering into this Agreement, which, on the terms and conditions
set forth herein, shall amend and restate the Existing Pledge Agreement in
its
entirety as of the date hereof.
(4) Each
Pledgor is the owner of the shares of stock or other Equity Interests set
forth
opposite such Pledgor’s name on and as otherwise described in Schedule II
hereto and issued by the Persons identified as an “Issuer” therein (the
“Initial
Pledged Equity”).
(5) Each
Pledgor has derived or will derive substantial direct and indirect benefit
from
the transactions contemplated by the Loan Documents.
NOW,
THEREFORE, in consideration of the premises, each Pledgor hereby agrees with
the
Agent for the ratable benefit of the Secured Parties as follows:
Section
1. Definitions
Unless
otherwise defined in this Agreement or in the Credit Agreement, terms defined
in
Article 8 or 9 of the UCC (as defined below) are used in this Agreement as
such
terms are defined in such Article 8 or 9. “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 any
security interest in any Collateral is governed by the Uniform Commercial
Code
as in effect in a jurisdiction other than the State of 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. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
3
“2009
Indenture Basket”
shall
mean, at any time, the greater of (i) 15% of the consolidated total assets
of
the “Company” and its consolidated “Subsidiaries”, as each such term is defined
in the indenture dated as of July 16, 1999, between the Borrower (as successor
in interest to Great Lakes Chemical Corporation) and The First National Bank
of
Chicago, as trustee, as amended from time to time (the “2009
Indenture”),
and
(ii) the amount of obligations permitted to be incurred and secured by the
Borrower and its Subsidiaries pursuant to the 2009 Indenture without the
requirement to equally and ratably secure any of the notes issued pursuant
to
such indenture.
“2016
Indenture Basket”
shall
mean, at any time, the greater of (i) 15% of the “Consolidated Net Tangible
Assets” of the “Company”, as each such term is defined in the indenture dated as
of April 24, 2006, between the Borrower and Xxxxx Fargo Bank, N.A., as trustee,
as amended from time to time (the “2016
Indenture”),
and
(ii) the amount of obligations permitted to be incurred and secured by the
Borrower and its Subsidiaries pursuant to the 2016 Indenture without the
requirement to equally and ratably secure any of the notes issued pursuant
to
the 2016 Indenture.
“2026
Indenture Basket”
shall
mean at any time, the greater of (i) 10% of the “Consolidated Net Tangible
Assets”, as such term is defined in the indenture dated as of February 1, 1993,
between the Borrower and JPMorgan Chase Bank, N.A. (formerly known as The
Chase
Manhattan Bank, N.A.), as trustee, as amended from time to time (the
“2026
Indenture”),
and
(ii) the amount of obligations permitted to be incurred and secured by the
Borrower and its Subsidiaries pursuant to the 2026 Indenture without the
requirement to equally and ratably secure any of the notes issued pursuant
to
the 2026 Indenture.
“Borrower”
shall
have the meaning specified in the recital of parties to this
Agreement.
“Collateral”
shall
have the meaning specified in Section 2.
“Credit
Agreement”
shall
have the meaning specified in the preliminary statements hereto.
“Dividends”
shall
mean all dividends, including without limitation:
(A) dividends
and other distributions paid or payable other than in cash in respect of,
and
instruments and other property received, receivable or otherwise distributed
in
respect of, or in exchange for, any Security Collateral,
(B) dividends
and other distributions paid or payable in cash in respect of any Security
Collateral in connection with a partial or total liquidation or dissolution
or
in connection with a reduction of capital, capital surplus or paid-in-surplus
and
4
(C) cash
paid, payable or otherwise distributed in redemption of, or in exchange for,
any
Security Collateral.
“Equity
Interests”
means,
with respect to any Person, shares of capital stock of (or other ownership
or
profit interests in) such Person.
“Initial
Pledged Equity”
shall
have the meaning specified in the preliminary statements hereto.
“Lowest
Indenture Basket”
shall
mean, on any day, the amount equal to the lowest of the 2009 Indenture Basket,
the 2016 Indenture Basket and the 2026 Indenture Basket.
“Pledged
Equity”
shall
have the meaning specified in Section 2(a)(ii).
5
“Pledgors”
shall
have the meaning specified in the recital of Parties to this
Agreement.
“Secured
Obligations”
means
the obligations of each Loan Party under the Loan Documents; provided
that in
no event shall the aggregate amount of Secured Obligations exceed the Lowest
Indenture Basket.
“Secured
Parties”
shall
mean the Lenders and the Agent.
“Security
Collateral”
shall
have the meaning specified in Section 2(a).
Section
2. Grant
of Security.
Each
Pledgor hereby grants to the Agent, for the equal and ratable benefit of
the
Secured Parties, a security interest in such Pledgor’s right, title and interest
in and to the following, in each case, as to each type of property described
below, whether now owned or hereafter acquired by such Pledgor, wherever
located, and whether now or hereafter existing or arising (collectively,
the
“Collateral”):
(a) the
following (the “Security
Collateral”):
(i) the
Initial Pledged Equity and the certificates, if any, representing the Initial
Pledged Equity, and all Dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Initial
Pledged Equity;
(ii) all
additional shares of stock and other Equity Interests of or in any issuer
of the
Initial Pledged Equity or any successor entity from time to time acquired
by
such Pledgor in any manner (such shares and other Equity Interests, together
with the Initial Pledged Equity, being the “Pledged
Equity”),
and
the certificates, if any, representing such additional shares or other Equity
Interests, and all Dividends, distributions, return of capital, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of such
shares
or other Equity Interests; and
(b) all
proceeds of, collateral for and supporting obligations relating to, any and
all
of the Collateral (including, without limitation, proceeds, collateral and
supporting obligations that constitute property of the types described in
clause (a) of this Section 2 and this clause (b)) and, to the
extent not otherwise included, all (A) payments under insurance (whether or
not the Agent is the loss payee thereof), or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect
to
any of the foregoing Collateral and (B) cash;
provided,
however,
that
Collateral shall not include, and the security interest granted under this
Agreement shall not attach to, more than 66% of the Equity Interests in a
CFC or
a CFC Holdco.
Section
3. Security
for Obligations.
This
Agreement secures, in the case of each Pledgor, the payment of all the Secured
Obligations.
6
Section
4. Pledgors
Remain Liable.
Anything herein to the contrary notwithstanding, (a) each Pledgor shall
remain liable under the contracts and agreements included in such Pledgor’s
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Agent of any of the rights hereunder
shall not release any Pledgor from any of its duties or obligations under
the
contracts and agreements included in the Collateral and (c) no Secured
Party shall have any obligation or liability under the contracts and agreements
included in the Collateral by reason of this Agreement or any other Loan
Document, nor shall any Secured Party be obligated to perform any of the
obligations or duties of any Pledgor thereunder or to take any action to
collect
or enforce any claim for payment assigned hereunder.
Section
5. Delivery
and Control of Security Collateral.
a. All certificates or instruments representing or evidencing
Collateral shall be delivered to and held by or on behalf of the Agent pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all
in form and substance reasonably satisfactory to the Agent. The Agent shall
have
the right, at any time while an Event of Default is continuing and without
notice to any Pledgor, to transfer to or to register in the name of the Agent
or
any of its nominees any or all of the Security Collateral, subject only to
the
revocable rights specified in Section 9(a). In addition, the Agent shall
have the right, at any time while an Event of Default is continuing, to exchange
certificates or instruments representing or evidencing Security Collateral
for
certificates or instruments of smaller or larger denominations.
(a) With
respect to any Security Collateral in which any Pledgor has any right, title
or
interest and that constitutes an uncertificated security, upon the request
of
the Agent during an Event of Default, such Pledgor will cause the issuer
thereof
either (i) to register the Agent as the registered owner of such security
or (ii) to agree in an authenticated record with such Pledgor and the Agent
that such issuer will comply with instructions with respect to such security
originated by the Agent without further consent of such Pledgor, such
authenticated record to be in form and substance reasonably satisfactory
to the
Agent.
(b) With
respect to any Security Collateral in which any Pledgor has any right, title
or
interest and that is not an uncertificated security, upon the request of
the
Agent upon the occurrence and during the continuance of an Event of Default,
such Pledgor will notify each such issuer of Pledged Equity that such Pledged
Equity is subject to the security interest granted hereunder.
Section
6. Representations
and Warranties.
Each
Pledgor represents and warrants as follows:
(a) Such
Pledgor’s exact legal name, as defined in Section 9-503(a) of the UCC, is
correctly set forth in Schedule I hereto. The information set forth in
Schedule I hereto with respect to such Pledgor is true and accurate in all
respects. Such Pledgor has not previously changed its name, type of
organization, jurisdiction of organization or organizational identification
number during the past year from those set forth in Schedule I hereto
except as disclosed in Schedule III hereto.
7
(b) All
Security Collateral consisting of certificated securities has been delivered
to
the Agent.
(c) Such
Pledgor is the legal and beneficial owner of the Collateral of such Pledgor
free
and clear of any Lien, claim, option or right of others, except for the security
interest created under this Agreement or permitted under the Loan Documents.
No
effective financing statement or other instrument similar in effect covering
all
or any part of such Collateral or listing such Pledgor or any trade name
of such
Pledgor as debtor with respect to such Collateral is on file in any recording
office, except such as may have been filed in favor of the Agent relating
to the
Loan Documents.
(d) To
the
extent applicable, the Pledged Equity pledged by such Pledgor hereunder has
been
duly authorized and validly issued and is fully paid and
non-assessable.
(e) The
Initial Pledged Equity pledged by such Pledgor constitutes the percentage
of the
issued and outstanding Equity Interests of the issuers thereof indicated
on
Schedule II hereto.
(f) As
of the
date hereof, all filings and other actions (including without limitation,
actions necessary to obtain control of Collateral as provided in Section
9-106
of the UCC) necessary to perfect the security interest in the Collateral
of such
Pledgor created under this Agreement have been duly made or taken and are
in
full force and effect, and this Agreement creates in favor of the Agent for
the
benefit of the Secured Parties a valid and, together with such filings and
other
actions, perfected first priority security interest in the Collateral of
such
Pledgor, securing the payment of the Secured Obligations.
(g) No
authorization or approval or other action by, and no notice to or filing
with,
any governmental authority or regulatory body or any other third party is
required for (i) the grant by such Pledgor of the security interest granted
hereunder or for the execution, delivery or performance of this Agreement
by
such Pledgor, (ii) the perfection or maintenance of the security interest
created hereunder (including the first priority nature of such security
interest), except for the filing of financing and continuation statements
under
the UCC, which financing statements have been duly filed and are in full
force
and effect, and the actions described in Section 5 with respect to Security
Collateral, which actions have been taken and are in full force and effect
or
(iii) the exercise by the Agent of its voting or other rights provided for
in this Agreement or the remedies in respect of the Collateral pursuant to
this
Agreement, except as may be required in connection with the disposition of
any
portion of the Security Collateral by laws affecting the offering and sale
of
securities generally.
Section
7. Further
Assurances.
b. Each
Pledgor agrees that from time to time, at the expense of such
Pledgor:
(i) such
Pledgor will file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as the Agent may request, in order to perfect and preserve
the
security interest in the Collateral granted or purported to be granted by
such
Pledgor hereunder;
8
(ii) such
Pledgor will promptly execute and deliver, or otherwise authenticate, all
further instruments and documents, and take all further action that may be
necessary or desirable, and that the Agent may reasonably request, in order
to
perfect and protect any pledge or security interest granted or purported
to be
granted by such Pledgor hereunder or to enable the Agent to exercise and
enforce
its rights and remedies hereunder with respect to any Pledged Equity of such
Pledgor. Without limiting the generality of the foregoing, each Pledgor will
promptly with respect to Pledged Equity of such Pledgor: (A) deliver and
pledge to the Agent for benefit of the Secured Parties certificates representing
Security Collateral that constitutes certificated securities, accompanied
by
undated stock or bond powers executed in blank; provided,
however,
that
such Pledgor shall have thirty days from the date hereof (or such longer
period
as may be agreed by the Agent) to deliver to the Agent certificates representing
foreign Security Collateral that constitutes certificated securities; (B)
take
all action necessary to ensure that the Agent has control of Collateral
consisting of investment property as provided in Section 9-106 of the UCC;
and (C) deliver to the Agent evidence that all other action that the Agent
may
deem reasonably necessary or desirable in order to perfect and protect the
security interest created by such Pledgor under this Agreement has been taken;
and
(iii) if
an
Event of Default shall have occurred and be continuing, such Pledgor will
promptly execute and deliver, or otherwise authenticate, all further instruments
and documents, and take all further action that may be necessary or desirable,
and that the Agent may reasonably request, in order to perfect and protect
any
pledge or security interest granted or purported to be granted by such Pledgor
hereunder or to enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to any Collateral of such Pledgor (other than the
Pledged
Equity referred to in Section 7(a)(ii)). Without limiting the generality
of the
foregoing, each Pledgor will promptly with respect to Collateral of such
Pledgor: (A) if any such Collateral shall be evidenced by a promissory note
or
other instrument, deliver and pledge to the Agent hereunder such note or
instrument duly indorsed and accompanied by duly executed instruments of
transfer or assignment, all in form and substance satisfactory to the Agent;
(B) deliver and pledge to the Agent for benefit of the Secured Parties
certificates representing Security Collateral that constitutes certificated
securities, accompanied by undated stock or bond powers executed in blank;
(C)
take all action necessary to ensure that the Agent has control of Collateral
consisting of investment property as provided in Section 9-106 of the UCC;
and (D) deliver to the Agent evidence that all other action that the Agent
may
deem reasonably necessary or desirable in order to perfect and protect the
security interest created by such Pledgor under this Agreement has been
taken.
(b) Each
Pledgor hereby authorizes the Agent to file one or more financing or
continuation statements in any jurisdiction and with any filing office, each
indicating the collateral that such financing statement covers (as described
in
Exhibit B hereto), and amendments thereto, in each case without the signature
of
such Pledgor, and regardless of whether any particular asset described in
such
financing statements falls within the scope of the UCC or the granting clause
of
this Agreement. A photocopy or other reproduction of this Agreement or any
financing statement covering the Collateral or any part thereof shall be
sufficient as a financing statement where permitted by law. Each Pledgor
ratifies its authorization for the Agent to have filed such financing
statements, continuation statements or amendments filed prior to the date
hereof.
9
(c) Each
Pledgor will furnish to the Agent from time to time statements and schedules
further identifying and describing the Collateral of such Pledgor and such
other
reports in connection with such Collateral as the Agent may reasonably request,
all in reasonable detail.
Section
8. Post-Closing
Changes.
No
Pledgor will change its name, type of organization, jurisdiction of organization
or organizational identification number from those set forth in
Section 5(a) without first giving at least 15 days’ prior written notice to
the Agent and taking all action required by the Agent for the purpose of
perfecting or protecting the security interest granted by this Agreement.
No
Pledgor will become bound by a security agreement relating to the Collateral
that is authenticated by another Person (determined as provided in
Section 9-203(d) of the UCC) without giving the Agent 15 days’ prior
written notice thereof and taking all action reasonably required by the Agent
to
ensure that the perfection and first priority nature of the Agent’s security
interest in the Collateral will be maintained. Each Pledgor will hold and
preserve its records relating to the Collateral and will permit representatives
of the Agent at any time during normal business hours to inspect and make
abstracts from such records and other documents. If the Pledgor does not
have an
organizational identification number and later obtains one, it will forthwith
notify the Agent of such organizational identification number.
Section
9. Voting
Rights; Dividends; Etc. (a) So
long
as no Default under Section 6.01(e) of the Credit Agreement or an Event of
Default shall have occurred and be continuing:
(i) Each
Pledgor shall be entitled to exercise any and all voting and other consensual
rights pertaining to the Security Collateral of such Pledgor or any part
thereof
for any purpose; provided however,
that
such Pledgor will not exercise or refrain from exercising any such right
if such
action would have a material adverse effect on the value of the Security
Collateral.
(ii) Each
Pledgor shall be entitled to receive, retain and use any and all Dividends
and
other distributions paid in respect of the Security Collateral of such Pledgor
if and to the extent that the payment thereof is not otherwise prohibited
by the
terms of the Loan Documents.
(iii) The
Agent
will execute and deliver (or cause to be executed and delivered) to each
Pledgor
all such proxies and other instruments as such Pledgor may reasonably request
for the purpose of enabling such Pledgor to exercise the voting and other
rights
that it is entitled to exercise pursuant to paragraph (i) above and to
receive the Dividends or other payments that it is authorized to receive
and
retain pursuant to paragraph (ii) above.
10
(b) Upon
the
occurrence and during the continuance of a Default under Section 6.01(e) of
the Credit Agreement or an Event of Default:
(i) All
rights of each Pledgor (x) to exercise or refrain from exercising the
voting and other consensual rights that it would otherwise be entitled to
exercise pursuant to Section 9(a)(i) shall, upon notice to such Pledgor by
the Agent, cease and (y) to receive the Dividends, interest and other
distributions that it would otherwise be authorized to receive and retain
pursuant to Section 9(a)(ii) shall upon notice to such Pledgor by the
Agent, cease, and all such rights shall thereupon become vested in the Agent,
which shall thereupon have the sole right to exercise or refrain from exercising
such voting and other consensual rights and to receive and hold as Security
Collateral such Dividends, interest and other distributions.
(ii) All
Dividends, interest and other distributions that are received by any Pledgor
contrary to the provisions of paragraph (i) of this Section 9(b) shall
be received in trust for the benefit of the Agent, shall be segregated from
other funds of such Pledgor and shall be forthwith paid over to the Agent
as
Security Collateral in the same form as so received (with any necessary
indorsement).
Section
10. Transfers
and Other Liens; Additional Shares.
(a) Each
Pledgor agrees that it will not (i) sell, assign or otherwise dispose of
any of the Collateral, other than sales, assignments and other dispositions
of
Collateral, and options relating to Collateral, not prohibited under the
terms
of the Loan Documents, or (ii) create or suffer to exist any Lien upon or
with respect to any of the Collateral of such Pledgor except for the pledge,
assignment and security interest created under this Agreement or Permitted
Liens.
(b) Each
Pledgor agrees that it will (i) cause each issuer of the Pledged Equity
pledged by such Pledgor not to issue any Equity Interests or other securities
in
addition to or in substitution for the Pledged Equity issued by such issuer,
except to such Pledgor, and (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional Equity
Interests or other securities of each issuer of the Pledged Equity.
Section
11. Agent
Appointed Attorney-in-Fact.
Each
Pledgor hereby irrevocably appoints the Agent such Pledgor’s attorney-in-fact,
with full authority in the place and stead of such Pledgor and in the name
of
such Pledgor or otherwise, from time to time, if an Event of Default shall
have
occurred and be continuing, in the Agent’s discretion, to take any action and to
execute any instrument that the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without
limitation:
(a) to
ask
for, demand, collect, xxx for, recover, compromise, receive and give acquittance
and receipts for moneys due and to become due under or in respect of any
of the
Collateral,
(b) to
receive, indorse and collect any drafts or other instruments or documents,
in
connection with clause (a) above, and
11
(c) to
file
any claims or take any action or institute any proceedings that the Agent
may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of the Agent with respect to any of the
Collateral.
Section
12. Agent
May Perform.
If any
Pledgor fails to perform any agreement contained herein, the Agent may, as
the
Agent deems necessary to protect the security interest granted hereunder
in the
Collateral or to protect the value thereof, but without any obligation to
do so
and without notice, itself perform, or cause performance of, such agreement,
and
the expenses of the Agent incurred in connection therewith shall be payable
by
such Pledgor under Section 14.
Section
13. Remedies.
If any
Event of Default shall have occurred and be continuing:
(a) The
Agent
may exercise in respect of the Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the rights
and
remedies of a secured party upon default under the UCC (whether or not the
UCC
applies to the affected Collateral) and also may: (i) without notice
except as specified below, sell the Collateral or any part thereof in one
or
more parcels at public or private sale, at any of the Agent’s offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms
as the Agent may deem commercially reasonable; and (ii) exercise any and
all rights and remedies of any of the Pledgors under or in connection with
the
Collateral, or otherwise in respect of the Collateral, including, without
limitation, those set forth in Section 9-607 of the UCC. Each Pledgor
agrees that, to the extent notice of sale shall be required by law, at least
ten
days’ notice to such Pledgor of the time and place of any public sale or the
time after which any private sale is to be made shall constitute reasonable
notification. The Agent shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Agent may adjourn any
public
or private sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and
place to which it was so adjourned.
(b) Any
cash
held by or on behalf of the Agent and all cash proceeds received by or on
behalf
of the Agent in respect of any sale of, collection from, or other realization
upon all or any part of the Collateral may, in the discretion of the Agent,
be
held by the Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Agent pursuant to
Section 14) in whole or in part by the Agent for the ratable benefit of the
Secured Parties against, all or any part of the Secured Obligations, in the
following manner:
(i) first,
paid to
the Agent for any amounts then owing to the Agent pursuant to the Loan
Documents; and
(ii) second,
an
amount equal to the remaining outstanding Secured Obligations shall be paid
to
the Agent for the account of the Lenders.
12
Any
surplus of such cash or cash proceeds held by or on the behalf of the Agent
and
remaining after payment in full of all the Secured Obligations shall be paid
over to the applicable Pledgor or to whomsoever may be lawfully entitled
to
receive such surplus.
(c) Any
amounts due and payable to the Lenders pursuant to Section 13(b) shall be
ratably (A) paid to the Lenders for any amounts then owing to them, in
their capacities as such, under the Loan Documents ratably in accordance
with
such respective amounts then owing to such Lenders and (B) deposited as
Collateral in the L/C Cash Deposit Account up to an amount equal to 100%
of the
aggregate Available Amount of all outstanding Letters of Credit in accordance
with Section 6.02 of the Credit Agreement.
(d) For
purposes of applying payments received in accordance with this Section 13,
the
Agent shall be entitled to rely upon the Agent for a determination of the
outstanding Secured Obligations owed to the Lenders.
(e) All
payments received by any Pledgor in respect of the Collateral shall be received
in trust for the benefit of the Agent, shall be segregated from other funds
of
such Pledgor and shall be forthwith paid over to the Agent in the same form
as
so received (with any necessary indorsement).
(f) Notwithstanding
anything to the contrary herein, this Agreement may be enforced only by the
action of the Agent acting upon the instructions of the Required Lenders
and no
other Lender shall have any right individually to seek to enforce or to enforce
this Agreement or to realize upon the security to be granted hereby, it being
understood and agreed that such rights and remedies may be exercised by the
Agent or the holders of at least a majority of the outstanding other Secured
Obligations, as the case may be, for the benefit of the Lenders upon the
terms
of this Agreement.
Section
14. Indemnity
and Expenses.
(a) Each
Pledgor agrees to indemnify, defend and save and hold harmless each Secured
Party and each of their Affiliates and their respective officers, directors,
employees, agents and advisors (each, an “Indemnified
Party”)
from
and against, and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable fees
and
expenses of counsel) that may be incurred by or asserted or awarded against
any
Indemnified Party, in each case arising out of or in connection with or
resulting from this Agreement (including, without limitation, enforcement
of
this Agreement), except to the extent such claim, damage, loss, liability
or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct.
(b) Each
Pledgor will upon demand pay to the Agent the amount of any and all reasonable
expenses, including, without limitation, the reasonable fees and expenses
of its
counsel and of any experts and agents, that the Agent may incur in connection
with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from or other realization upon,
any
of the Collateral of such Pledgor, (iii) the exercise or enforcement of any
of the rights of the Agent or the other Secured Parties hereunder or
(iv) the failure by such Pledgor to perform or observe any of the
provisions hereof.
13
Section
15. Amendments;
Waivers; Additional Pledgors; Etc.
c. No
amendment or waiver of any provision of this Agreement, and no consent to
any
departure by any Pledgor herefrom, shall in any event be effective unless
the
same shall be in writing and signed by the Agent (and, in the case of any
amendment of any provision of this Agreement, each Pledgor), and then such
waiver or consent shall be effective only in the specific instance and for
the
specific purpose for which given. No failure on the part of the Agent or
any
other Secured Party to exercise, and no delay in exercising any right hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any such right preclude any other or further exercise thereof or the exercise
of
any other right.
(a) Upon
the
execution and delivery, or authentication, by any Person of a pledge agreement
supplement in substantially the form of Exhibit A hereto (each a “Pledge
Agreement Supplement”),
(i) such Person shall be referred to as an “Additional
Pledgor”
and
shall be and become a Pledgor hereunder, and each reference in this Agreement
and the other Loan Documents to “Pledgor” shall also mean and be a reference to
such Additional Pledgor, and each reference in this Agreement and the other
Loan
Documents to “Collateral” shall also mean and be a reference to the Collateral
of such Additional Pledgor, and (ii) the supplemental schedules I-III
attached to each Pledge Agreement Supplement shall be incorporated into and
become a part of and supplement Schedules I-III, respectively, hereto, and
the
Agent may attach such supplemental schedules to such Schedules; and each
reference to such Schedules shall mean and be a reference to such Schedules
as
supplemented pursuant to each Pledge Agreement Supplement.
Section
16. Notices,
Etc.
All
notices and other communications provided for hereunder shall be either (i)
in
writing (including telecopier communication) and mailed, telecopied or otherwise
delivered or (ii) by electronic mail (if electronic mail addresses are
designated as provided below) confirmed immediately in writing, in the case
of
the Borrower or the Agent, addressed to it at its address specified in the
Credit Agreement and, in the case of each Pledgor other than the Borrower,
addressed to it at its address set forth opposite such Pledgor’s name on the
signature pages hereto or on the signature page to the Pledge Agreement
Supplement pursuant to which it became a party hereto; or, as to any party,
at
such other address as shall be designated by such party in a written notice
to
the other parties. All such notices and other communications shall, when
mailed,
telecopied, sent by electronic mail or otherwise, be effective when deposited
in
the mails, telecopied, sent by electronic mail and confirmed in writing,
or
otherwise delivered (or confirmed by a signed receipt), respectively, addressed
as aforesaid; except that notices and other communications to the Agent shall
not be effective until received by the Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or of any Pledge Agreement Supplement or Schedule hereto shall
be
effective as delivery of an original executed counterpart thereof.
Section
17. Continuing
Security Interest; Assignments Under the Credit Agreement.
This
Agreement shall create a continuing security interest in the Collateral and
shall (a) remain in full force and effect until the earlier of (i) the
termination of the Security Period and (ii) latest of (x) the payment in
full in cash of the Secured Obligations, (y) the Termination Date and
(z) the termination or expiration of all Letters of Credit or the provision
of cash collateral or other credit support therefor satisfactory to the
applicable Issuing Banks thereof, (b) be binding upon each Pledgor, its
successors and assigns and (c) inure, together with the rights and remedies
of the Agent hereunder, to the benefit of the Secured Parties and their
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender may assign or otherwise transfer
all or any portion of its rights and obligations under the Credit Agreement
(including, without limitation, all or any portion of its Commitments, its
participations in any Letter of Credit, the Advances owing to it and the
Note or
Notes, if any, held by it) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted
to such
Lender herein or otherwise, in each case as provided in Section 9.07 of the
Credit Agreement.
14
Section
18. Release;
Termination.
d. Upon
any sale, transfer or other disposition of any item of Collateral of any
Pledgor
in accordance with the terms of the Loan Documents, the Agent will, at such
Pledgor’s expense, execute and deliver to such Pledgor such documents as such
Pledgor shall reasonably request to evidence the release of such item of
Collateral from the security interest granted hereby; provided,
however,
that
(i) at the time of such request and such release no Event of Default shall
have occurred and be continuing and (ii) such Pledgor shall have delivered
to the Agent, at least ten Business Days (or such shorter period as is agreed
to
by the Agent) prior to the date of the proposed release, a written request
for
release describing the item of Collateral and the terms of the sale, transfer
or
other disposition in reasonable detail, including, without limitation, the
price
thereof and any expenses in connection therewith, together with a form of
release for execution by the Agent and a certificate of such Pledgor to the
effect that the transaction is in compliance with the Loan Documents and
as to
such other matters as the Agent may request.
(a) The
Agent
shall promptly release in accordance with Section 18(c) all the Collateral
upon
the earlier of (i) the termination of the Security Period and (ii) the latest
of
(x) the payment in full in cash of the Secured Obligations, (y) the Termination
Date and (z) the termination or expiration of all Letters of Credit or the
provision of cash collateral or other credit support therefor satisfactory
to
the applicable Issuing Banks thereof, the pledge and security interest granted
hereby shall terminate and all rights to the Collateral shall revert to the
applicable Pledgor. Upon any such termination, the Agent will, at the applicable
Pledgor’s expense, executed and deliver to such Pledgor such documents as such
Pledgor shall reasonably request to evidence such termination.
(b) In
furtherance of the undertaking set forth above in Section 18(b), the Agent
shall, upon the request of each Pledgor accompanied by a certificate of the
Chief Financial Officer, Treasurer or Controller of such Pledgor, upon which
the
Agent may conclusively rely without independent verification, to the effect
that
either (x) the Security Period has terminated or (y) all Secured Obligations
under the Credit Agreement and the other Loan Documents have been, or will,
concurrently with the release of the Collateral be, paid in full in cash
and all
Commitments thereunder terminated (and if such Secured Obligations have not
previously been so paid, describing the source(s) of funds for such repayment)
and all Letters of Credit have terminated or expired (or cash collateral
or
other credit support therefor satisfactory to the applicable Issuing Banks
thereof has been provided). If the Agent shall receive a certificate of the
type
referred to in clause (y), the Agent shall deliver a notice by registered
mail
to the Agent stating
that the Agent will release such Collateral only upon receipt from the Agent
of
instructions to do so.
15
Section
19. Reference
to and Effect on the Pledge Agreement. e. On and after the date hereof, each
reference in the Loan Documents to "the Pledge Agreement", "thereunder",
"thereof" or words of like import referring to the Pledge Agreement, shall
mean
and be a reference to this Agreement.
(b) The
execution, delivery and effectiveness of this Agreement shall not, except
as
expressly provided herein, operate as a waiver of any right, power or remedy
of
any Lender or the Agent under the Existing Pledge Agreement or any other
Loan
Document, nor constitute a waiver of any provision of the Existing Pledge
Agreement or any other Loan Document.
Section
20. Execution
in Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same agreement. Delivery of an executed counterpart
of a
signature page to this Agreement by telecopier shall be effective as delivery
of
an original executed counterpart of this Agreement.
Section
21. Jurisdiction,
Etc. (a) Each
of
the parties hereto hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement, or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in such federal court. Each Pledgor hereby
further irrevocably consents to the service of process in any action or
proceeding in such courts by the mailing thereof by any parties hereto by
registered or certified mail, postage prepaid, to such Pledgor at its address
specified in the Credit Agreement. Each of the parties hereto agrees that
a
final judgment in any such action or proceeding shall be conclusive and may
be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
party
may otherwise have to bring any action or proceeding relating to this Agreement
in the courts of any jurisdiction.
(b) Each
of
the parties hereto irrevocably and unconditionally waives, to the fullest
extent
it may legally and effectively do so, any objection that it may now or
hereafter
have to the laying of venue of any suit, action or proceeding arising out
of or
relating to this Agreement in any New York State or federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by
law, the defense of an inconvenient forum to the maintenance of such action
or
proceeding in any such court.
Section
22. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
16
IN
WITNESS WHEREOF, each Pledgor has caused this Agreement to be duly executed
and
delivered by its officer thereunto duly authorized as of the date first above
written.
CHEMTURA
CORPORATION
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By | ||
Title: |
ANDEROL,
INC.
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By | ||
Title: |
Address
for Notices:
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BIO-LAB,
INC.
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By | ||
Title: |
Address
for Notices:
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CROMPTON
HOLDING CORPORATION
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By | ||
Title: |
Address
for Notices:
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GREAT
LAKES CHEMICAL CORPORATION
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By | ||
Title: |
Address
for Notices:
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XXXXXXX
HOLDINGS CORPORATION
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By | ||
Title: |
Address
for Notices:
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Acknowledged
and agreed by:
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CITIBANK,
N.A.
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By | ||||
Title: |
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