PLEDGE AGREEMENT
Exhibit 10.2
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (as it may be amended, restated, supplemented or otherwise modified from time to time, the “Pledge Agreement” or the “Agreement”), dated as of March 27, 2013, is by and among Kraton Polymers U.S. LLC, a Delaware limited liability company (the “Initial U.S. Borrower”), Kraton Polymers LLC, a Delaware limited liability company (“KPLLC”), Kraton Performance Polymers, Inc., a Delaware corporation (“Parent”) and the other parties identified as “Pledgors” on the signature pages hereto and such other parties as may become Pledgors hereunder after the date hereof (individually, a “Pledgor” and collectively, the “Pledgors”) and BANK OF AMERICA, N.A., as collateral agent (in such capacity together with its successors and assigns, the “Collateral Agent”) for the holders of the Secured Obligations referenced below.
W I T N E S S E T H
WHEREAS, reference is made to that certain Loan, Security and Guarantee Agreement dated as of March 27, 2013 (as may be amended, restated, supplemented or otherwise modified from time to time, the “Loan Agreement”) among the Initial U.S. Borrower, Kraton Polymers Nederland B.V., a limited company organized under the laws of The Netherlands (“Initial Dutch Borrower”), Parent, KPLLC, the other Guarantors defined therein, the Lenders party thereto and Bank of America, N.A., as Administrative Agent; and
WHEREAS, this Pledge Agreement is required under the terms of the Loan Agreement;
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby consent and agree as follows:
| 1. | Definitions. |
| (a) | Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Loan Agreement. In addition, the following terms, which are defined in the UCC, are used as defined therein (and if defined in more than one Article of the UCC, shall have the meaning given in Article 9 thereof): Accession, Financial Asset, Proceeds and Security. |
| (b) | As used herein, the following terms shall have the meaning set forth below: |
“Additional Pledgor” shall have the meaning provided in Section 6(g) hereof.
“Additional Shares” shall have the meaning provided in Section 2(b) hereof.
“Collateral Agent” has the meaning provided in the introductory paragraph hereof.
“Initial U.S. Borrower” has the meaning provided in the introductory paragraph hereof.
“Loan Agreement” has the meaning provided in the recitals hereof.
“Pledge Agreement” has the meaning provided in the introductory paragraph hereof.
“Pledged Collateral” has the meaning provided in Section 2 hereof.
“Pledged Shares” has the meaning provided in Section 2(a) hereof.
“Pledge Supplement” shall mean any supplement to this Agreement in substantially the form of Exhibit A.
“Pledgors” has the meaning provided in the introductory paragraph hereof.
“Voting Stock” of any Person as of any date means the Equity Interests of such Person that are at the time entitled to vote in the election of the board of directors of such Person.
| (c) | Other Interpretive Provisions. With reference to this Agreement: (i) the meanings of defined terms are equally applicable to the singular and plural forms of the defined terms, (ii) the words “herein,” “hereto,” “hereof” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision hereof, (iii) Article, Section, Exhibit and Schedule references are to the Loan Document in which such reference appears, (iv) the term “including” is by way of example and not limitation, (v) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form and (vi) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including,” the words “to” and “until” each mean “to but excluding” and the word “through” means “to and including.” |
| 2. | Pledge and Grant of Security Interest. |
To secure the prompt payment and performance in full when due, whether by lapse of time, acceleration, mandatory prepayment or otherwise, of the Secured Obligations, each Pledgor hereby grants, pledges and assigns to the Collateral Agent, for the benefit of the holders of the Secured Obligations, a continuing security interest in, and a right to set-off against, any and all right, title and interest of such Pledgor in and to the following, whether now owned or existing or owned, acquired, or arising hereafter (collectively, the “Pledged Collateral”):
| (a) | Pledged Shares. One hundred percent (100%) (or, if less, the full amount owned by such Pledgor) of the issued and outstanding Equity Interests owned by such Pledgor of each Restricted Subsidiary set forth on Schedule 2(a) attached hereto, but in no event more than sixty-five percent (65%) of the issued and outstanding Voting Stock, owned by such Pledgor of each first-tier Foreign Subsidiary (or first-tier Domestic Subsidiary that is a disregarded entity for U.S. federal income tax purposes and that holds Voting Stock of a Foreign Subsidiary directly or through entities that are disregarded for U.S. federal income tax purposes) set forth on Schedule 2(a) attached hereto, in each case together with the certificates (or other agreements or instruments), if any, representing such Equity Interests or Voting Stock, as applicable, and all options and other rights, contractual or otherwise, with respect thereto (collectively, together with the Equity Interests described in Sections 2(b) and 2(c) below, the “Pledged Shares”), including the following: |
(A) all shares, securities, membership interests or other equity interests representing a dividend on any of the Pledged Shares, or representing a distribution or return of capital upon or in respect of the Pledged Shares, or resulting from a stock split, revision, reclassification or other exchange therefor, and any subscriptions, warrants, rights or options issued to the holder of, or otherwise in respect of, the Pledged Shares; and
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(B) without affecting the obligations of the Pledgors under any provision prohibiting such action hereunder or under the Loan Agreement, in the event of any consolidation or merger involving the issuer of any Pledged Shares and in which such issuer is not the surviving entity, all Equity Interests of the successor entity formed by or resulting from such consolidation or merger.
| (b) | Additional Shares. One hundred percent (100%) (or, if less, the full amount owned by such Pledgor) of the issued and outstanding Equity Interests owned by such Pledgor of any Person that hereafter becomes a Restricted Subsidiary and a Guarantor under the Loan Agreement but in no event more than sixty-five percent (65%) of the issued and outstanding Voting Stock owned by such Pledgor of any Person that hereafter becomes a first-tier Foreign Subsidiary (or first-tier Domestic Subsidiary that is a disregarded entity for U.S. federal income tax purposes and that holds Voting Stock of a Foreign Subsidiary directly or through entities that are disregarded for U.S. federal income tax purposes) that is a Restricted Subsidiary or a Guarantor under the Loan Agreement, including the certificates (or other agreements or instruments) representing such Equity Interests or Voting Stock, as applicable, and all options and other rights, contractual or otherwise, with respect thereto. |
In the event a Pledgor acquires rights in any such Equity Interests or Voting Stock as referenced in clauses (i) and (ii) above after the date hereof (in each case, “Additional Shares”), it shall deliver within ninety (90) days of such acquisition to the Collateral Agent a completed Pledge Supplement, substantially in the form of Exhibit A attached hereto, together with all Supplements to Schedules thereto, reflecting such new Equity Interests or Voting Stock. Notwithstanding the foregoing, it is understood and agreed that the security interest of the Collateral Agent shall attach to all Additional Shares immediately upon any Pledgor’s acquisition of rights therein and shall not be affected by the failure of any Pledgor to deliver such Pledge Supplement. Notwithstanding any of the foregoing in this Agreement, in no event shall any Pledgor pledge more than sixty-five (65%) of the issued and outstanding Voting Stock owned by such Pledgor of any first-tier Foreign Subsidiary (or first-tier Domestic Subsidiary that is a disregarded entity for US federal income tax purposes and that holds Voting Stock of a Foreign Subsidiary directly or through entities that are disregarded for U.S. federal income tax purposes).
| (c) | Accessions and Proceeds. All Accessions and all Proceeds of any and all of the foregoing. |
Without limiting the generality of the foregoing, it is hereby specifically understood and agreed that a Pledgor may from time to time hereafter deliver additional Equity Interests to the Collateral Agent as collateral security for the Secured Obligations. Upon delivery to the Collateral Agent, such additional Equity Interests shall be deemed to be Pledged Shares and part of the Pledged Collateral of such Pledgor and shall be subject to the terms of this Pledge Agreement whether or not Schedule 2(a) is amended to refer to such additional Equity Interests. Notwithstanding anything to the contrary contained herein, the security interests granted under this Pledge Agreement shall not extend to, and the “Pledged Collateral” shall not include, any Excluded Assets.
| 3. | Security for Secured Obligations. The security interest created hereby in the Pledged Collateral of each Pledgor constitutes continuing collateral security for all of the Secured Obligations. |
| 4. | Delivery of the Pledged Collateral. |
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To the extent that Pledged Collateral is certificated, each Pledgor hereby agrees that:
| (a) | Each Pledgor shall deliver to the Collateral Agent (i) simultaneously with or prior to the execution and delivery of this Pledge Agreement, all certificates representing the Pledged Shares of such Pledgor as of such date and (ii) promptly upon the receipt thereof by or on behalf of such Pledgor, all other certificates and instruments constituting Pledged Collateral of such Pledgor. Prior to delivery to the Collateral Agent, all such certificates and instruments constituting Pledged Collateral of a Pledgor shall be held in trust by such Pledgor for the benefit of the Collateral Agent pursuant hereto. All such certificates shall be delivered in suitable form for transfer by delivery or shall be accompanied by duly executed instruments of transfer or assignment in blank, substantially in the form provided in Exhibit 4(a) attached hereto. |
| (b) | Additional Securities. If such Pledgor shall receive by virtue of its being or having been the owner of any Pledged Collateral any (i) certificate, including any certificate representing a dividend or distribution in connection with any increase or reduction of capital, reclassification, merger, consolidation, sale of assets, combination of shares or other equity interests, stock splits, spin-off or split-off, promissory notes or other instruments; (ii) option or right, whether as an addition to, substitution for, or an exchange for, any Pledged Collateral or otherwise; (iii) dividends payable in securities; or (iv) distributions of securities in connection with a partial or total liquidation, dissolution or reduction of capital, capital surplus or paid-in surplus, then such Pledgor shall receive such certificate, instrument, option, right or distribution in trust for the benefit of the Collateral Agent, shall segregate it from such Pledgor’s other property and shall deliver it forthwith to the Collateral Agent in the exact form received together with any necessary endorsement and/or appropriate stock power duly executed in blank, substantially in the form provided in Exhibit 4(a) , to be held by the Collateral Agent as Pledged Collateral and as further collateral security for the Secured Obligations. |
| (c) | Financing Statements. Each Pledgor authorizes the Collateral Agent to file one or more financing statements disclosing the Collateral Agent’s security interest in the Pledged Collateral. Each Pledgor shall execute and deliver to the Collateral Agent such other applicable financing statements and other filings as may be reasonably requested by the Collateral Agent in order to perfect and protect the security interest created hereby in the Pledged Collateral of such Pledgor. |
| 5. | Representations and Warranties. |
Each Pledgor hereby represents and warrants to the Collateral Agent, for the benefit of the holders of the Secured Obligations, that so long as any of the Secured Obligations remains outstanding and until all of the commitments relating thereto have been terminated:
| (a) | Authorization of Pledged Shares. The Pledged Shares are duly authorized and validly issued, are fully paid and nonassessable and are not subject to the preemptive rights of any Person. |
| (b) | Title. Each Pledgor has good and indefeasible title to the Pledged Collateral of such Pledgor and is the legal and beneficial owner of such Pledged Collateral free and clear of any Lien, other than Permitted Liens. There exists no “adverse claim” within the meaning of Section 8-102 of the UCC with respect to the Pledged Shares of such Pledgor. |
| (c) | Exercising of Rights. The exercise by the Collateral Agent of its rights and remedies hereunder will not violate any Applicable Law or governmental regulation or any material contractual restriction binding on or affecting a Pledgor or any of its property; provided, however, that this representation is not made with respect to the Collateral Agent’s compliance with securities law matters. |
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| (d) | Pledgor’s Authority. No authorization, approval or action by, and no notice or filing with any Governmental Authority or with the issuer of any Pledged Stock is required either (i) for the pledge made by a Pledgor or for the granting of the security interest by a Pledgor pursuant to this Pledge Agreement (except as have been already obtained) or (ii) for the exercise by the Collateral Agent or the holders of the Secured Obligations of their rights and remedies hereunder (except as may be required by Applicable Laws affecting the offering and sale of securities and except for the filing of UCC financing statements in the filing office(s) set forth opposite such Pledgor’s name on Schedule 5(i) hereof). |
| (e) | Security Interest/Priority. This Pledge Agreement creates a valid security interest in favor of the Collateral Agent for the benefit of the holders of the Secured Obligations in the Pledged Collateral. As a matter of U.S. state law, the taking of possession in, and while located in, any state of the United States, by the Collateral Agent of the certificates representing the Pledged Shares and all other certificates and instruments constituting Pledged Collateral (in each case to the extent such shares, certificates or instruments constitute “securities” (within the meaning of Article 8 of the UCC)) will perfect and establish the first priority of the Collateral Agent’s security interest in the Pledged Shares and, upon filing of UCC financing statements naming such Pledgor as “debtor” and the Collateral Agent as “secured party” and describing the Pledged Collateral in the filing office(s) set forth opposite such Pledgor’s name on Schedule 5(i) hereof, in all other Pledged Collateral securing the Secured Obligations to the extent such security interest can be perfected by filing under the UCC. Except as set forth in this Section 5(e) hereof, no action is necessary to perfect or otherwise protect such security interest. |
| (f) | Partnership and Membership Interests. Except as set forth on Schedule 5(f) to this Agreement, none of the Pledged Shares consisting of partnership or limited liability company interests (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a security governed by Article 8 of the UCC, (iii) is an investment company security, (iv) is held in a securities account or (v) constitutes a Security or a Financial Asset. |
| (g) | No Other Interests. As of the Closing Date, pursuant to the terms of the Loan Agreement, no Pledgor is required to pledge any Equity Interests in any Subsidiary other than as set forth on Schedule 2(a) attached hereto. |
| 6. | Covenants. |
Each Pledgor hereby covenants, that so long as any of the Secured Obligations remains outstanding and until all of the Commitments relating thereto have been terminated, such Pledgor shall:
| (a) | Defense of Title. Warrant and defend title to and ownership of the Pledged Collateral of such Pledgor at its own expense against the claims and demands of all other parties claiming an interest therein, keep the Pledged Collateral free from all Liens, except for Permitted Liens, and not sell, exchange, transfer, assign, lease or otherwise dispose of Pledged Collateral of such Pledgor or any interest therein, except as permitted under the Loan Agreement and the other Loan Documents. |
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| (b) | Further Assurances. Promptly execute and deliver at its expense all further instruments and documents and take all further action that may be necessary and desirable or that the Collateral Agent may reasonably request in order to (i) perfect and protect the security interest created hereby in the Pledged Collateral of such Pledgor (including any and all action necessary to satisfy the Collateral Agent that the Collateral Agent has obtained a first priority perfected security interest in all Pledged Collateral); (ii) enable the Collateral Agent to exercise and enforce its rights and remedies hereunder in respect of the Pledged Collateral of such Pledgor; and (iii) otherwise effect the purposes of this Pledge Agreement. |
| (c) | Amendments. Not make or consent to any amendment (except for any de minimis amendment), other modification or waiver with respect to any of the Pledged Collateral of such Pledgor or enter into any agreement or allow to exist any restriction (except for any de minimis restriction) with respect to any of the Pledged Collateral of such Pledgor other than pursuant hereto or as may be permitted under the Loan Agreement or as required by applicable securities laws. |
| (d) | Compliance with Securities Laws. File all reports and other information now or hereafter required to be filed by such Pledgor with the United States Securities and Exchange Commission and any other state, federal or foreign agency in connection with the ownership of the Pledged Collateral of such Pledgor. |
| (e) | Issuance or Acquisition of Equity Interests Consisting of an Interest in a Partnership or a Limited Liability Company. Not, without executing and delivering, or causing to be executed and delivered, to the Collateral Agent such agreements, documents and instruments as the Collateral Agent may require in the exercise of its Permitted Discretion (including any agreement, document or instrument to ensure the Collateral Agent has “control” (within the meaning of Section 8-106 of the UCC) thereof), issue or acquire any Equity Interests of a Subsidiary that is a Guarantor under the Loan Agreement consisting of an interest in a partnership or a limited liability company that (i) is dealt in or traded on a securities exchange or in a securities market, (ii) by its terms expressly provides that it is a security governed by Article 8 of the UCC, (iii) is an investment company security, (iv) is held in a securities account or (v) constitutes a Security or a Financial Asset. |
| (f) | Additional Pledgors. From time to time subsequent to the date hereof, additional Persons may become parties hereto as additional Pledgors (each, an “Additional Pledgor”), by executing a Pledge Supplement. Upon delivery of any such Pledge Supplement to the Collateral Agent, notice of which is hereby waived by the Pledgors, each Additional Pledgor shall be a Pledgor and shall be as fully a party hereto as if such Additional Pledgor were an original signatory hereto. Each Pledgor expressly agrees that its obligations arising hereunder shall not be affected or diminished by the addition or release of any other Pledgor hereunder, nor by any election of Collateral Agent not to cause any Subsidiary of Initial U.S. Borrower to become an Additional Pledgor hereunder. This Agreement shall be fully effective as to any Pledgor that is or becomes a party hereto regardless of whether any other Person becomes or fails to become or ceases to be a Pledgor hereunder. |
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| 7. | Advances by Holders of the Secured Obligations. |
On failure of any Pledgor to perform any of the covenants and agreements contained herein and upon prior written notice to the Pledgor, the Collateral Agent may, at its sole option and in its sole discretion, perform the same and in so doing may expend such sums as the Collateral Agent may reasonably deem advisable in the performance thereof, including the payment of any insurance premiums, the payment of any taxes, a payment to obtain a release of a Lien or potential Lien, expenditures made in defending against any adverse claim and all other expenditures that the Collateral Agent may make for the protection of the security hereof or may be compelled to make by operation of Applicable Law. All such sums and amounts so expended shall be repayable by the Pledgors on a joint and several basis promptly upon timely notice thereof and demand therefor, shall constitute additional Secured Obligations and shall, subject to Section 3.1.1 of the Loan Agreement, bear interest from the date said amounts are expended at the rate then applicable to U.S. Revolving Loans that are U.S. Base Rate Loans. No such performance of any covenant or agreement by the Collateral Agent on behalf of any Pledgor, and no such advance or expenditure therefor, shall relieve the Pledgors of any default under the terms of this Pledge Agreement, the other Loan Documents or any other documents relating to the Secured Obligations. The Collateral Agent may make any payment hereby authorized in accordance with any bill, statement or estimate procured from the appropriate public office or holder of the claim to be discharged without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien, title or claim except to the extent such payment is being contested in good faith by a Pledgor in appropriate proceedings and against which adequate reserves are being maintained in accordance with GAAP.
| 8. | Remedies. |
| (a) | General Remedies. Upon the occurrence of an Event of Default and during the continuation thereof, the Collateral Agent and the holders of the Secured Obligations shall have, in addition to the rights and remedies provided herein, in the Loan Documents, in any other documents relating to the Secured Obligations, or by Law (including levy of attachment and garnishment), the rights and remedies of a secured party under the UCC of the jurisdiction applicable to the affected Pledged Collateral. |
| (b) | Sale of Pledged Collateral. Upon the occurrence of an Event of Default and during the continuation thereof, without limiting the generality of this Section 8 and without notice, the Collateral Agent may, in its sole discretion, sell or otherwise dispose of or realize upon the Pledged Collateral, or any part thereof, in one or more parcels, at public or private sale, at any exchange or broker’s board or elsewhere, at such price or prices and on such other terms as the Collateral Agent may deem commercially reasonable, for cash, credit or for future delivery or otherwise in accordance with Applicable Law. To the extent permitted by Law, any holder of the Secured Obligations may in such event, bid for the purchase of such securities. Each Pledgor agrees that, to the extent notice of sale shall be required by Law and has not been waived by such Pledgor, any requirement of reasonable notice shall be met if notice, specifying the place of any public sale or the time after which any private sale is to be made, is personally served on or mailed, postage prepaid, to such Pledgor, in accordance with the notice provisions of Section 14.3.1 of the Loan Agreement at least ten (10) days before the time of such sale. The Collateral Agent shall not be obligated to make any sale of Pledged Collateral of such Pledgor regardless of notice of sale having been given. The Collateral 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. |
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| (c) | Private Sale. Upon the occurrence of an Event of Default and during the continuation thereof, the Pledgors recognize that the Collateral Agent may deem it impracticable to effect a public sale of all or any part of the Pledged Shares or any of the securities constituting Pledged Collateral and that the Collateral Agent may, therefore, determine to make one or more private sales of any such Pledged Collateral to a restricted group of purchasers who will be obligated to agree, among other things, to acquire such Pledged Collateral for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor hereby waives any claims against the Collateral Agent arising by reason that any such private sale shall not have been made in a commercially reasonable manner solely as a result of the fact that such sale was conducted privately, as opposed to publicly, and the Collateral Agent shall have no obligation to delay sale of any such Pledged Collateral for the period of time necessary to permit the issuer of such Pledged Collateral to register such Pledged Collateral for public sale under the Securities Act of 1933. Each Pledgor further acknowledges and agrees that any offer to sell such Pledged Collateral that has been (i) publicly advertised on a bona fide basis in a newspaper or other publication of general circulation in the financial community of New York, New York (to the extent that such offer may be advertised without prior registration under the Securities Act of 1933), or (ii) made privately in the manner described above shall be deemed to involve a “public sale” under the UCC, notwithstanding that such sale may not constitute a “public offering” under the Securities Act of 1933, and the Collateral Agent may, in such event, bid for the purchase of such Pledged Collateral. |
| (d) | Retention of Pledged Collateral. To the extent permitted under Applicable Law, in addition to the rights and remedies hereunder, upon the occurrence and continuance of an Event of Default, the Collateral Agent may, after providing the notices required by Sections 9-620 and 9-621 of the UCC and otherwise complying with the requirements of Applicable Law of the relevant jurisdiction, accept or retain all or any portion of the Pledged Collateral in satisfaction of the Secured Obligations. Unless and until the Collateral Agent shall have provided such notices, however, the Collateral Agent shall not be deemed to have accepted or retained any Pledged Collateral in satisfaction of any Secured Obligations for any reason. |
| (e) | Deficiency. In the event that the proceeds of any sale, collection or realization are insufficient to pay all amounts to which the Collateral Agent or the holders of the Secured Obligations are legally entitled, the Pledgors shall be jointly and severally liable for the deficiency (subject to Section 24 hereof), together with interest thereon at the Default Rate, together with the costs of collection and reasonable attorneys’ fees and expenses. Any surplus remaining after the full payment and satisfaction of the Secured Obligations shall be returned to the Pledgors or to whomsoever a court of competent jurisdiction shall determine to be entitled thereto. |
| 9. | Rights of the Collateral Agent. |
| (a) | Power of Attorney. In addition to other powers of attorney contained herein, each Pledgor hereby designates and appoints the Collateral Agent, on behalf of the holders of the Secured Obligations, and each of its designees or agents, as attorney-in-fact of such Pledgor, irrevocably and with power of substitution, with authority to take any or all of the following actions upon the occurrence and during the continuation of an Event of Default: |
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(i) to demand, collect, settle, compromise and adjust, and give discharges and releases concerning the Pledged Collateral, all as the Collateral Agent may reasonably deem appropriate;
(ii) to commence and prosecute any actions determined by the Collateral Agent to be reasonable at any court for the purposes of collecting any of the Pledged Collateral and enforcing any other right in respect thereof;
(ii) to defend, settle or compromise any action brought and, in connection therewith, give such discharge or release as the Collateral Agent may reasonably deem appropriate;
(iii) to pay or discharge taxes, liens, security interests or other encumbrances levied or placed on or threatened against the Pledged Collateral;
(v) to direct any parties liable for any payment in connection with any of the Pledged Collateral to make payment of any and all monies due and to become due thereunder directly to the Collateral Agent or as the Collateral Agent shall direct;
(vi) to receive payment of and receipt for any and all monies, claims, and other amounts due and to become due at any time in respect of or arising out of any Pledged Collateral;
(vii) to sign and endorse any drafts, assignments, proxies, stock powers, verifications, notices and other documents relating to the Pledged Collateral;
(viii) to execute and deliver all assignments, conveyances, statements, financing statements, renewal financing statements, security and pledge agreements, affidavits, notices and other agreements, instruments and documents that the Collateral Agent may reasonably deem appropriate in order to perfect and maintain the security interests and liens granted in this Pledge Agreement and in order to fully consummate all of the transactions contemplated therein;
(ix) to exchange any of the Pledged Collateral or other property upon any merger, consolidation, reorganization, recapitalization or other readjustment of the issuer thereof and, in connection therewith, deposit any of the Pledged Collateral with any committee, depository, transfer agent, registrar or other designated agency upon such terms as the Collateral Agent may reasonably deem appropriate;
(x) to vote for a shareholder resolution, or to sign an instrument in writing, sanctioning the transfer of any or all of the Pledged Collateral into the name of the Collateral Agent or into the name of any transferee to whom the Pledged Collateral or any part thereof may be sold pursuant to Section 8 hereof and
(xi) to do and perform all such other acts and things as the Collateral Agent may reasonably deem appropriate or convenient in connection with the Pledged Collateral.
This power of attorney is a power coupled with an interest and shall be irrevocable for so long as any of the Secured Obligations shall remain outstanding and until all of the commitments relating thereto shall have been terminated. The Collateral Agent shall be under no duty to exercise or withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to the Collateral Agent in this Pledge Agreement, and shall not be liable for any failure to do so or any delay in doing so. The Collateral Agent shall not be liable for any act or omission or for any error of judgment or any mistake of fact or Law in its individual capacity or its capacity as attorney-in-fact except acts or omissions resulting from its gross negligence or willful misconduct. This power of attorney is conferred on the Collateral Agent solely to protect, preserve and realize upon its security interest in the Pledged Collateral.
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| (b) | Assignment by the Collateral Agent. The Collateral Agent may assign the Secured Obligations and any portion thereof and/or the Pledged Collateral and any portion thereof to a successor collateral agent appointed pursuant to Section 10.06 of the Loan Agreement, and the assignee shall be entitled to all of the rights and remedies of the Collateral Agent under this Pledge Agreement in relation thereto. |
| (c) | The Collateral Agent’s Duty of Care. Other than the exercise of reasonable care to assure the safe custody of the Pledged Collateral while being held by the Collateral Agent hereunder, the Collateral Agent shall have no duty or liability to preserve rights pertaining thereto, it being understood and agreed that the Pledgors shall be responsible for preservation of all rights in the Pledged Collateral, and the Collateral Agent shall be relieved of all responsibility for the Pledged Collateral upon surrendering it or tendering the surrender of it to the Pledgors. The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Pledged Collateral in its possession if such Pledged Collateral is accorded treatment substantially equal to that which the Collateral Agent accords its own property, which shall be no less than the treatment employed by a reasonable and prudent agent in the industry, it being understood that the Collateral Agent shall not have responsibility for (i) ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Pledged Collateral, whether or not the Collateral Agent has or is deemed to have knowledge of such matters, or (ii) taking any necessary steps to preserve rights against any parties with respect to any of the Pledged Collateral. |
| (d) | Voting Rights in Respect of the Pledged Collateral. |
(i) So long as no Event of Default shall have occurred and be continuing, to the extent permitted by Law, each Pledgor may exercise any and all voting and other consensual rights pertaining to the Pledged Collateral of such Pledgor or any part thereof for any purpose not inconsistent with the terms of this Pledge Agreement or the Loan Agreement and
(ii) Upon the occurrence and during the continuance of an Event of Default and notice from the Collateral Agent to the applicable Pledgor that the Collateral Agent intends to exercise its rights pursuant to this paragraph (ii), all rights of a Pledgor to exercise the voting and other consensual rights that it would otherwise be entitled to exercise pursuant to paragraph (i) of this subsection shall cease and all such rights shall thereupon become vested in the Collateral Agent, which shall then have the sole right to exercise such voting and other consensual rights.
| (e) | Dividend Rights in Respect of the Pledged Collateral. |
(i) So long as no Event of Default shall have occurred and be continuing and subject to Section 4(b) hereof, each Pledgor may receive and retain any and all dividends (other than stock dividends and other dividends constituting Pledged Collateral addressed hereinabove) or interest paid in respect of the Pledged Collateral to the extent they are allowed under the Loan Agreement.
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(ii) Upon the occurrence and during the continuance of an Event of Default and notice from the Collateral Agent to the applicable Pledgor that the Collateral Agent intends to exercise its rights pursuant to this paragraph (e):
(A) all rights of a Pledgor to receive the dividends and interest payments that it would otherwise be authorized to receive and retain pursuant to paragraph (i) of this subsection shall cease and all such rights shall thereupon be vested in the Collateral Agent, which shall then have the sole right to receive and hold as Pledged Collateral such dividends and interest payments and
(B) all dividends and interest payments that are received by a Pledgor contrary to the provisions of paragraph (A) of this subsection shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other property or funds of such Pledgor, and shall be forthwith paid over to the Collateral Agent as Pledged Collateral in the exact form received, to be held by the Collateral Agent as Pledged Collateral and as further collateral security for the Secured Obligations.
| (f) | Release of Pledged Collateral. The Collateral Agent may release any of the Pledged Collateral from this Pledge Agreement or may substitute any of the Pledged Collateral for other Pledged Collateral without altering, varying or diminishing in any way the force, effect, lien, pledge or security interest of this Pledge Agreement as to any Pledged Collateral not expressly released or substituted, and this Pledge Agreement shall continue as a first priority lien on all Pledged Collateral not expressly released or substituted. |
| 10. | Collateral Agent as Agent. |
| (a) | The Collateral Agent has been appointed to act as Collateral Agent hereunder by the Lenders and, by their acceptance of the benefits hereof, the other holders of Secured Obligations. The Collateral Agent shall be obligated and shall have the right hereunder to make demands, give notices, exercise or refrain from exercising any rights and to take or refrain from taking any action (including, without limitation, the release or substitution of Collateral), solely in accordance with this Agreement and the Loan Agreement. In furtherance of the foregoing provisions of this Section 10(a), each holder of Secured Obligations, by its acceptance of the benefits hereof, agrees that it shall have no right individually to realize upon any of the Collateral hereunder, it being understood and agreed by such holder of Secured Obligations that all rights and remedies hereunder may be exercised solely by Collateral Agent for the benefit of holders of Secured Obligations in accordance with the terms of this Section 10(a). |
| (b) | The provisions of the Loan Agreement relating to the Collateral Agent including, without limitation, the provisions relating to resignation of the Collateral Agent and the powers and duties and immunities of the Collateral Agent are incorporated herein by this reference and shall survive any termination of the Loan Agreement. |
| 11. | Application of Proceeds. |
Upon the occurrence and during the continuation of an Event of Default, any payments in respect of the Secured Obligations and any proceeds of the Pledged Collateral, when received by the Collateral Agent or any of the holders of the Secured Obligations in cash or its equivalent, will be applied in reduction of the Secured Obligations in the order set forth in the Loan Agreement or other document relating to the Secured Obligations, and each Pledgor irrevocably waives the right to direct the application of such payments and proceeds and acknowledges and agrees that the Collateral Agent shall have the continuing and exclusive right to apply and reapply, in its sole discretion, any and all such payments and proceeds.
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| 12. | [RESERVED]. |
| 13. | Continuing Agreement. |
| (a) | This Pledge Agreement shall be a continuing agreement in every respect and shall remain in full force and effect until it is terminated. Notwithstanding the foregoing, all indemnities provided hereunder shall survive termination of this Pledge Agreement. |
| (b) | This Pledge Agreement shall continue to be effective or be automatically reinstated, as the case may be, if at any time payment, in whole or in part, of any of the Secured Obligations is rescinded or must otherwise be restored or returned by the Collateral Agent or any holder of the Secured Obligations as a preference, fraudulent conveyance or otherwise under any bankruptcy, insolvency or similar Applicable Law, all as though such payment had not been made; provided that in the event payment of all or any part of the Secured Obligations is rescinded or must be restored or returned, all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Collateral Agent or any holder of the Secured Obligations in defending and enforcing such reinstatement shall be deemed to be included as a part of the Secured Obligations. |
| 14. | Amendments and Waivers. |
This Pledge Agreement and the provisions hereof may not be amended, waived, modified, changed, discharged or terminated except as set forth in Section 14.1.1 of the Loan Agreement.
| 15. | Successors in Interest. |
This Pledge Agreement shall create a continuing security interest in the Collateral and shall be binding upon each Pledgor, its successors and assigns, and shall inure, together with the rights and remedies of the Collateral Agent and the holders of the Secured Obligations hereunder, to the benefit of the Collateral Agent and the holders of the Secured Obligations and their successors and permitted assigns; provided , however , that none of the Pledgors may assign its rights or delegate its duties hereunder without the prior written consent of Collateral Agent.
| 16. | Notices. |
All notices required or permitted to be given under this Pledge Agreement shall be given as provided in Section 14.3.1 of the Loan Agreement.
| 17. | Counterparts. |
This Pledge Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be an original, but all of which shall constitute one and the same instrument. It shall not be necessary in making proof of this Pledge Agreement to produce or account for more than one such counterpart.
| 18. | Headings. |
The headings of the sections and subsections hereof are provided for convenience only and shall not in any way affect the meaning or construction of any provision of this Pledge Agreement.
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| 19. | Governing Law; Submission to Jurisdiction; Venue. |
| (a) | GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES (BUT GIVING EFFECT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATION LAW AND FEDERAL LAWS RELATING TO NATIONAL BANKS). |
| (b) | Consent to Forum. EACH PARTY HERETO HEREBY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN OR WITH JURISDICTION OVER THE COUNTY OF NEW YORK, IN ANY PROCEEDING OR DISPUTE RELATING IN ANY WAY TO THIS AGREEMENT, AND EACH PLEDGOR AGREES THAT ANY SUCH PROCEEDING SHALL BE BROUGHT BY IT SOLELY IN ANY SUCH COURT. EACH PARTY HERETO IRREVOCABLY WAIVES ALL CLAIMS, OBJECTIONS AND DEFENSES THAT IT MAY HAVE REGARDING SUCH COURT’S PERSONAL OR SUBJECT MATTER JURISDICTION, VENUE OR INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 14.3.1 of the Loan Agreement. Nothing herein shall limit the right of Collateral Agent or any Lender to bring proceedings against any Pledgor in any other court, nor limit the right of any party to serve process in any other manner permitted by Applicable Law. Nothing in this Agreement shall be deemed to preclude enforcement by Collateral Agent of any judgment or order obtained in any forum or jurisdiction. Final judgment against any Pledgor in any action, suit or proceeding shall be conclusive and may be enforced in any other jurisdiction, including the country in which such Pledgor is domiciled, by suit on the judgment. |
| (i) | To the fullest extent permitted by Applicable Law, Pledgor waives (i) the right to trial by jury (which Collateral Agent hereby also waives) in any proceeding or dispute of any kind relating in any way to this Agreement; (ii) presentment, demand, protest, notice of presentment, default, non-payment, maturity, release, compromise, settlement, extension or renewal of any commercial paper, accounts, documents, instruments, chattel paper and guaranties at any time held by Collateral Agent on which Pledgor may in any way be liable, and hereby ratifies anything Collateral Agent may do in this regard; (iii) notice prior to taking possession or control of any Collateral (including the Pledged Collateral); (iv) any bond or security that might be required by a court prior to allowing Collateral Agent to exercise any rights or remedies; (v) the benefit of all valuation, appraisement and exemption laws; (vi) any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential, exemplary or punitive damages (as opposed to direct or actual damages) in any way relating to this Agreement; and (vii) notice of acceptance hereof. Pledgor acknowledges that the foregoing waivers are a material inducement to Collateral Agent and Lenders entering into the Loan Agreement and that Collateral Agent and Lenders are relying upon the foregoing in their dealings with Pledgor. Pledgor has reviewed the foregoing waivers with its legal counsel and has knowingly and voluntarily waived its jury trial and other rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. |
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| 20. | Severability. If any provision of this Pledge Agreement or any related document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Pledge Agreement and any other related document shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. |
| 21. | Entirety. Time is of the essence with respect to this Agreement and the other Loan Documents. This Agreement and the other Loan Documents constitute the entire agreement, and supersede all prior understandings and agreements, oral or written, among the parties relating to the subject matter thereof. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN AGREEMENTS BETWEEN THE PARTIES. |
| 22. | Other Security. To the extent that any of the Secured Obligations are now or hereafter secured by property other than the Pledged Collateral (including real and other personal property owned by a Pledgor), or by a guarantee, endorsement or property of any other Person, then the Collateral Agent shall have the right to proceed against such other property, guarantee or endorsement upon the occurrence of any Event of Default, and the Collateral Agent shall have the right, in its sole discretion, to determine which rights, security, liens, security interests or remedies the Collateral Agent shall at any time pursue, relinquish, subordinate, modify or take with respect thereto, without in any way modifying or affecting any of them or the Secured Obligations or any of the rights of the Collateral Agent or the holders of the Secured Obligations under this Pledge Agreement, under any of the other Loan Documents or under any other document relating to the Secured Obligations. |
| 23. | Joint and Several Obligations of Pledgors. |
| (a) | Subject to subsection (c) of this Section 23, each of the Pledgors is accepting joint and several liability hereunder in consideration of the financial accommodation to be provided by the holders of the Secured Obligations, for the mutual benefit, directly and indirectly, of each of the Pledgors and in consideration of the undertakings of each of the Pledgors to accept joint and several liability for the obligations of each of them. |
| (b) | Subject to subsection (c) of this Section 23, each of the Pledgors jointly and severally hereby irrevocably and unconditionally accepts joint and several liability with the other Pledgors with respect to the payment of all of the Secured Obligations arising under this Pledge Agreement, the other Loan Documents and any other documents relating to the Secured Obligations, it being the intention of the parties hereto that all the payment Secured Obligations shall be the joint and several obligations of each of the Pledgors without preferences or distinction among them. |
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| (c) | Notwithstanding any provision to the contrary contained herein, in any other of the Loan Documents or in any other documents relating to the Secured Obligations, the obligations of each Guarantor under the Loan Agreement and the other Loan Documents shall be limited to an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under Section 548 of the Bankruptcy Code of the United States or any other Applicable Law (including any comparable provisions of any applicable state law). |
| 24. | Termination and Release. |
| (a) | This Pledge Agreement and all security interests granted hereby shall terminate when (i) all of the Secured Obligations under the Loan Documents (excluding contingent obligations as to which no claim has been made) have been paid in full in cash, (ii) all Commitments have terminated or expired and (iii) the aggregate amount available to be drawn under Letters of Credit has been reduced to zero (including as a result of obtaining the consent of the applicable Fronting Bank through the provision of Cash Collateral or other arrangements satisfactory to the applicable Fronting Bank ) and no Fronting Bank has any further obligation to issue or amend Letters of Credit under the Loan Agreement. |
| (b) | All security interests granted hereby shall also terminate and be released at the time or times and in the manner set forth in Section 4.6 of the Loan Agreement. |
| (c) | In connection with any termination or release pursuant to subsection (a) or (b) of this Section 24, the Collateral Agent shall execute and deliver to any Pledgor, at such Pledgor’s expense, all documents that such Pledgor shall reasonably request to evidence such termination or release so long as the applicable Pledgor shall have provided the Collateral Agent such certifications or documents as the Collateral Agent shall reasonably request in order to demonstrate compliance with this Section 24 . Any execution and delivery of documents by the Collateral Agent pursuant to this Section shall be without recourse to or warranty by the Collateral Agent. |
[Signatures on Following Pages]
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Each of the parties hereto has caused a counterpart of this Pledge Agreement to be duly executed and delivered as of the date first written above.
| PLEDGORS: | ||
| KRATON POLYMERS LLC, a Delaware limited liability company | ||
| By: | /s/ Stephen Tremblay | |
| Name: Stephen Tremblay | ||
| Title: Vice President and Chief Financial Officer | ||
| ELASTOMER HOLDINGS, LLC, a Delaware limited liability company | ||
| By: | /s/ Stephen Tremblay | |
| Name: Stephen Tremblay | ||
| Title: Vice President and Chief Financial Officer | ||
| KRATON POLYMERS U.S. LLC, a Delaware limited liability company | ||
| By: | /s/ Stephen Tremblay | |
| Name: Stephen Tremblay | ||
| Title: Vice President and Chief Financial Officer | ||
| KRATON POLYMERS CAPITAL CORPORATION, a Delaware corporation | ||
| By: | /s/ Stephen Tremblay | |
| Name: Stephen Tremblay | ||
| Title: Vice President and Chief Financial Officer | ||
| KRATON PERFORMANCE POLYMERS, INC., a Delaware corporation | ||
| By: | /s/ Stephen Tremblay | |
| Name: Stephen Tremblay | ||
| Title: Vice President and Chief Financial Officer | ||
[SIGNATURE PAGE TO U.S. PLEDGE AGREEMENT]
Accepted and agreed to as of the date first written above.
| COLLATERAL AGENT: | ||
| BANK OF AMERICA, N.A., as Collateral Agent | ||
| By: | /s/ Michael Wills | |
| Name: Michael Wills | ||
| Title: Senior Vice President | ||
[SIGNATURE PAGE TO U.S. PLEDGE AGREEMENT]
