Exhibit 10.6


 


GE - Resolution Holdings BV/Deed of Pledge of Shares

CMS/MWG/50088-00043

99119280


 


 


FIRST DEED OF PLEDGE OF SHARES


(Resolution Holdings B.V.)


 


 


This twenty-fourth day of January two thousand and five
appeared before me, Christiaan Maria Stokkermans, civil law notary in Amsterdam,
the Netherlands:


1.         Mr. Martijn Jan Olivier
Moerdijk, living at Margriete van Clevelaan 12, 1181 BC Amstelveen, the
Netherlands, born in Helmond, the Netherlands, on the third day of June
nineteen hundred and seventy, identified by his driving licence with number
3185383443, in this respect acting as attorney-in-fact of:


(a)           Resolution Performance
Products LLC, a limited liability company organised
and existing under the laws of the State of Delaware, United States of America,
having its registered office at Corporation Services Company, 2711 Centerville
Road, Suite 400, Wilmington, Delaware (DE) 19808, United States of America, and
its corporate office at 1600 Smith Street, 24th floor, Houston, Texas, United
States of America, registered with the Office of the Secretary of State of the
State of Delaware, United States of America, under number 3040880 (RPP USA or the Pledgor); and


(b)           Resolution Holdings B.V., a private company with limited liability (besloten vennootschap
met beperkte aansprakelijkheid) incorporated under the laws of the
Netherlands, having its official seat at The Hague, the Netherlands, and its
office address at 3196 KK Vondelingenplaat, Rotterdam, the Netherlands,
Vondelingenweg 601, and registered with the Dutch Commercial Register under
number 27182096 (Resolution  Holdings
or the Company);


2.         Mr. Machiel Wouter Galjaart,
with office address at Apollolaan 15, 1077 AB Amsterdam, the Netherlands, born
in Ermelo, the Netherlands, on the eighth day of September nineteen hundred and
seventy-two, in this respect acting as attorney-in-fact of:


General Electric Capital Corporation, a company organised and existing under the laws of the State of
Delaware, United States of America, having its registered office at Corporation
Trust Center, 1209 Orange Street, Wilmington, DE 19801, United States of
America, and an office at 335 Madison Avenue, 12th floor, New York, New York
10017, United States of America, registered with the Office of the Secretary of
State of the State of Delaware, United States of America, under tax
identification number 13-1500700 (the Collateral Agent).


 


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The aforementioned proxy appears from three written
powers of attorney attached to this deed (Annexes).


The persons appearing declared the following:


WHEREAS:


A.        Resolution Performance
Products Inc. (Holdings), RPP USA, RPP Capital
Corporation (US Finance Corp. and, together
with RPP USA, the Original US Borrowers
and each, an Original US Borrower), Resolution
Europe B.V. (formerly known as Resolution Nederland B.V., as Original Dutch
Borrower, in such capacity, the Original Dutch Borrower), the lenders from time
to time party thereto (the Original Lenders),
Salomon Smith Barney Inc., as Syndication Agent, JPMorgan Chase Bank (formerly
known as Morgan Guaranty Trust Company of New York), as Documentation Agent,
and Morgan Stanley Senior Funding, Inc., as Lead Arranger, sole Book Manager
and Administrative Agent (in such capacity, the Original
Agent) and Morgan Stanley & Co., Incorporated (the Original Collateral Agent), entered into a Credit Agreement,
dated as of November fourteenth, two thousand (as amended, modified or
supplemented through, but not including, the date hereof, the Original Bank Credit Agreement) providing for the making of
Loans (as defined in the Original Bank Credit Agreement) to the Original US
Borrowers and the Original Dutch Borrower and the issuance of, and
participation in, Letters of Credit (as defined in the Original Bank Credit
Agreement) for the account of the Original US Borrowers as contemplated therein
(the Original Lenders, the Original Agent, each Letter of Credit Issuer (as
defined in the Original Bank Credit Agreement) thereunder, and the Original
Collateral Agent are herein called the Original US Bank Lender
Creditors).


B.         Holdings, RPP USA and certain
other entities from time to time borrowers thereunder (the US Borrowers),
the financial institutions from time to time party thereto as US Lenders (the US Lenders), and General Electric Capital Corporation, as a
US Lender, as initial US L/C Issuer, as Collateral Agent and as US Agent, (in
such capacity, together with any successor agent, the US Agent),
Resolution Europe B.V., and other entities from time to time designated as
Netherlands Borrowers thereunder, each individually, a Netherlands
Borrower and collectively and jointly and severally, the Netherlands Borrowers and together with the US Borrowers,
each individually a Borrower and
collectively (but not jointly and severally) the Borrowers),
the other persons designated as Credit Parties
on the signature pages thereof, the financial institutions who are or hereafter
become parties to the Credit Agreement as Netherlands Lenders, and GE Leveraged
Loans Limited (in its individual capacity, GE Netherlands),
as Netherlands Agent, Netherlands L/C Issuer, Netherlands Security Trustee and
a Netherlands Lender entered into a Credit Agreement, dated as of the


 


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twenty-fourth day of January two thousand and
five (as amended, modified, extended, renewed, replaced, restated, supplemented
or refinanced from time to time, and including any agreement extending the
maturity of, or refinancing or restructuring (including, but not limited to,
the inclusion of additional borrowers or guarantors thereunder or any increase
in the amount borrowed thereunder) all or any portion of the indebtedness under
such agreement or any successor agreement, whether or not with the same agent,
trustee, representative, lenders, holders or group of lenders or holders, the Bank Credit Agreement), providing, among other things, for
the refinancing in full of the Original Bank Credit Agreement and the making of
US Revolving Credit Advances and US Swing Line Advance (as defined therein) to
the US Borrowers and the issuance of, and participation in, US Letters of
Credit (as defined therein) for the account of the US Borrowers as contemplated
therein (the US Lenders, the US Agent, each US L/C Issuer and the Collateral
Agent are herein called the US Bank Lender Creditors).


C.         The Original US Borrowers and
The Bank of New York as Trustee (together with any successor trustee, the Additional Senior Secured Notes Trustee) entered into an
Indenture, dated as of twenty two December two thousand three (as amended,
modified, extended, renewed, replaced, restated, supplemented or refinanced
from time to time, and including any agreement extending the maturity of, or
refinancing or restructuring (including, but not limited to, the inclusion of
additional borrowers or guarantors thereunder or any increase in the amount
borrowed thereunder) all or any portion of the indebtedness under such
Indenture or any successor agreement whether or not with the same trustee,
representative, agent, lenders, holders or group of lenders or holders, the Note Credit Agreement and, together with the Bank Credit
Agreement, collectively, the Credit Agreement),
providing for (i) the issuance by the Original US Borrowers of their eight
percent (8%) Senior Secured Notes due fifteen December two thousand and nine
(the Additional Senior Secured Notes) to the
holders thereof from time to time (such holders, the Additional
Senior Secured Noteholders and, together with the Additional Senior
Secured Notes Trustee, the Note Lender Creditors;
and the Note Lender Creditors and the US Bank Lender Creditors are collectively
the Lender Creditors) and (ii) the guaranty
by any future US Credit Party that is a Subsidiary Guarantor of the Original US
Borrowers’ obligations under the Note Credit Agreement and the Additional
Senior Secured Notes (each such guaranty, together with the Note Credit
Agreement and the Additional Senior Secured Notes, are herein called the Note Credit Documents).


D.         The Pledgor or a Domestic Subsidiary
of the Pledgor has entered into, and may at any time and from time to time
after the date hereof enter into or a guaranty of the obligations of the
Pledgor or Domestic Subsidiaries thereof


 


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under, one or more US Hedge Agreements (as
defined or incorporated by reference in the US Security Agreement defined
below) with one or more US Bank Lender Creditors or any affiliate thereof (each
such US Bank Lender Creditor or affiliate, even if the respective US Bank
Lender Creditor subsequently ceases to be a US Lender under the Bank Credit
Agreement for any reason, together with such US Bank Lender Creditor’s or
affiliate’s successors and assigns, if any, collectively, the Other Creditors).


E.         Pursuant to an Assignment
Agreement, dated the twenty-fourth day of January two thousand and five, the
Original Collateral Agent assigned or will assign, inter alia, any and all of
its present and future rights arising from or in connection with Article 4 (the
Parallel Debt B) as contemplated by the Existing First Shares Pledge (as
defined below) and any and all of its rights against the Bank of New York,
pursuant to Article 10.7 and 10.8 of the Existing First Shares Pledge to the
Collateral Agent.


F.         RPP USA and the Company, among
other parties, entered into the Existing First Shares Pledge (as defined below)
pursuant to which RPP USA created rights of pledge on inter alia certain shares
in the Company in favor of the Original Collateral Agent, which rights of
pledge will be terminated pursuant to a Notice of Termination effective as of or
about the date of occurrence of the Second Restatement Effective Date (as
defined in the US Security Agreement).


G.         RPP USA and the other
Assignors (as defined therein) and the Collateral Agent entered into the Second
Amended and Restated US Security Agreement, on or about the twenty-fourth day
of January two thousand and five (as further amended, modified or supplemented
from time to time, the US Security Agreement),
in connection with the Bank Credit Agreement.


H.         It is a condition precedent
to (i) the making of loans and advances to the US Borrowers and the issuance
of, and participation in, US Letters of Credit for the account of the US
Borrowers under the Bank Credit Agreement, and (ii) the Other Creditors
entering into the Hedge Agreements, that the Pledgor shall have executed and
delivered to the Collateral Agent this Deed.


I.          The Pledgor will obtain
benefits from the continued incurrence of loans and advances and, also from the
continued issuance of US Letters of Credit, under the Bank Credit Agreement,
and the entering into of Hedge Agreements and, accordingly, the Pledgor desires
to execute this Deed to satisfy the conditions described in the preceding
paragraph.


J.          The parties hereto intend to
create a right of pledge which shall at no time trigger any filing requirements
under Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act (as
defined in Article 1 hereof), as such Rules may be amended or replaced from
time to time.


 


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K.         RPP USA is holder of four hundred
(400) ordinary shares, with a nominal value of one thousand Netherlands Guilder
(NLG 1,000) each, numbered 1 up to and including 400, in the share capital of
Resolution Holdings.


L.         The Articles of Association
of the Company permit the creation of a pledge on the Shares of the Company.


M.        The Articles of Association of
the Company do not explicitly permit a transfer of voting rights to a pledgee
of shares in its capital, but pursuant to Article 2:198 NCC transfer of voting
rights is possible if so provided on the establishment of the pledge and if the
establishment of the pledge is approved by the general meeting of shareholders.


N.         The Pledgor as sole
shareholder of the Company has resolved to give approval for the vesting of
this pledge, including the legally required approval for the transfer of voting
rights. The adoption of such resolutions is evidenced by a copy of the
aforementioned shareholders resolution, attached to this Deed (Annex).


The persons appearing, acting in said capacities,
declared that in consideration of the premises contained herein, the parties
hereto agree as follows:


1.         Definitions


1.1        In this Deed, any term defined
in the recitals hereto shall have the meaning as defined in the recitals
hereto, unless otherwise defined hereunder, and the following terms shall have
the following meaning:


Bank Credit Obligations means any and all obligations of the Pledgor for the full and
prompt payment when due (whether at the stated maturity, by acceleration or
otherwise) of all monetary obligations, liabilities and indebtedness
(including, without limitation, indemnities, fees and interest thereon
(including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of the Pledgor at
the rate provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such proceeding)), whether now
existing or hereafter incurred, whether actual, contingent or unliquidated or
owed jointly or severally (or in any capacity whatsoever) to the Collateral
Agent in its capacity as Secured Creditor and as a creditor of the RPP Parallel
Debt Obligations under Clause 8.8 (b) of the Bank Credit Agreement and
including without limitation all US Obligations of the Pledgor to the
Collateral Agent under, arising out of, or in connection with the Bank Credit
Agreement and other Secured Agreements to which the Pledgor is a party (including
all such obligations under any provision of this Deed), and including
extensions of credit of the types described above, whether outstanding on the
date of this Deed or extended from time to time after the date of this Deed,
including any and all sums advanced by the Collateral Agent in order to
preserve the Shares or preserve the security


 


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interests hereby created and, in the event of
any proceeding for the collection or enforcement of any indebtedness,
obligations or liabilities secured hereunder after an Event of Default, the
reasonable expenses of retaking, holding, preparing for sale, selling or
otherwise disposing of or realizing on the Shares, or of any exercise by its
rights hereunder, together with reasonable attorneys fees and court costs.


Deed means this deed of pledge of shares, as the same may be modified,
supplemented or amended from time to time in accordance with its terms.


Event of Default means an Event of Default as defined in the US Security Agreement,
but excluding clause (ii) of such definition.


Existing First Shares Pledge means the deed of pledge of shares executed on the twenty-second
day of December two thousand three before Mr. B.Th. Dérogée, civil law notary
in Rotterdam, the Netherlands, by virtue of which deed inter alia first
priority rights of pledge were established on certain shares in the capital of
Resolution Holdings, Resolution Europe and Resolution Research by RPP USA and
Resolution Holdings in favor of the Original Collateral Agent.


Existing Second Shares Pledge means the deed of pledge of shares executed on the twenty-second
day of December two thousand and three before Mr. B.Th. Dérogée, civil law
notary in Rotterdam, the Netherlands, as rectified by deed of rectification executed
on the twelfth day of January two thousand and four before Mr. Dérogée
aforementioned, by virtue of which deed a right of pledge was established on
certain shares in the capital of Resolution Holdings by RPP USA in favor of the
Original Collateral Agent, ranking junior (lager in rang) only
to the first priority rights of pledge on certain shares in the capital of
Resolution Holdings established by virtue of the Existing First Shares Pledge.


Existing Shares Pledges means the Existing First Shares Pledge and the Existing Second
Shares Pledge, collectively.


Future Shares means any and all shares in the capital of Resolution Holdings that
RPP USA shall acquire after the date of this Deed, which shares together with
the Present Shares represent sixty-five per cent 65% (or such number that most
closely approaches sixty-five per cent (65%) without exceeding it) of the total
issued shares in the share capital of Resolution Holdings and which shares
shall, for identification purposes, each time be the shares with the lowest
share numbering of all shares comprised in the relevant acquisition.


Intercreditor Agreement means the Intercreditor Agreement, dated as of the twenty-second
day of December two thousand and three, among the Additional Senior Secured
Notes Trustee, the Original Agent, the Original Collateral Agent and the
Overdraft Creditors (as defined therein), and acknowledged and agreed to by the
Credit Parties from time to time party


 


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thereto, as amended and restated, as of the
Second Restatement Effective Date, by and among the Collateral Agent and the
Credit Parties, as further amended, modified, restated, supplemented or replaced
from time to time in accordance with the terms thereof, including, without
limitation, any intercreditor or similar agreement with respect to any
refinancing, replacement or restructuring (including, without limitation, any
such agreement increasing the amount of indebtedness referred to therein or
adding additional parties thereto) with respect to all or any portion of the
indebtedness referenced in such agreement.


NCC means the Netherlands Civil Code (Burgerlijk
Wetboek).


Note Credit Document Obligations means any and all obligations of the Original US Borrowers for the
full and prompt payment when due (whether at the stated maturity, by
acceleration or otherwise) of all monetary obligations, liabilities and
indebtedness (including, without limitation, indemnities, fees and interest
thereon (including, without limitation, all interest that accrues after the
commencement of any case, proceeding or other action relating to the
bankruptcy, insolvency, reorganization or similar proceeding of the Pledgor at
the rate provided for in the respective documentation, whether or not a claim
for post-petition interest is allowed in any such proceeding)), whether now
existing or hereafter incurred, whether actual, contingent or unliquidated or
owed jointly or severally (or in any capacity whatsoever) to the Collateral
Agent in its capacity as creditor under the Note Credit Documents and as a
creditor of the Parallel Debt B and including without limitation all obligations
of the Pledgor to the Collateral Agent under, arising out of, or in connection
with the Note Credit Documents, whether outstanding on the date of this Deed or
from time to time after the date of this Deed, including any and all sums
advanced by the Collateral Agent in order to preserve the Shares or preserve
the security interests hereby created and, in the event of any proceeding for
the collection or enforcement of any indebtedness, obligations or liabilities
secured hereunder after an Event of Default, the reasonable expenses of
retaking, holding, preparing for sale, selling or otherwise disposing of or
realizing on the Shares, or of any exercise by its rights hereunder, together
with reasonable attorneys fees and court costs, but limited at all times to an
amount equal to nineteen point ninety-nine per cent (19.99%) of the aggregate
outstanding principal amount of the Additional Senior Secured Notes from time
to time, provided however, that in the event that
Rule 3-10 or Rule 3-16 of Regulation S-X under the Securities Act is amended,
modified, or interpreted by the SEC to require (or is replaced with another
rule or regulation, or any other law, rule or regulations is adopted which
would require) the filing with the SEC of separate financial statements of any
Subsidiary of RPP USA (including, without limitation, the Company)


 


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due to the fact that such Subsidiary’s
capital stock or other securities secure the Additional Senior Secured Notes,
then the Note Credit Document Obligations shall be limited to the extent
necessary not to be subjected to such requirement.


Noteholders’ Portion means at the relevant time those shares with the lowest numbering
of the Present Shares together with any Future Shares, if any, of which the
aggregate principal amount, par value, book value as carried by RPP USA or the
market value as determined by RPP USA’s board of directors, whichever is the
greatest, as such terms are interpreted by the SEC under Rule 3-10 or Rule 3-16
of Regulation S-X under the Securities Act that equal nineteen point
ninety-nine per cent (19.99%) (or such number as most closely approaches
nineteen point ninety-nine per cent (19.99%) without exceeding it) of the
aggregate outstanding principal amount of the Additional Senior Secured Notes
outstanding at such time.


Obligations means the Bank Credit Obligations and the Note Credit Document
Obligations.


Parallel Debt B has the meaning provided in Article 4 of the Existing First Shares Pledge.


Present Shares means sixty-five per cent (65%) of the Total Shares, being two
hundred and sixty (260) shares, numbered 1 up to and including 260.


Right of Pledge means the right of pledge created by this Deed.


SEC means the Securities and Exchange Commission of the United States
of America.


Secured Agreements means the Bank Credit Agreement, the other Loan Documents and the
Hedge Agreements.


Secured Creditors means the Lender Creditors and the Other Creditors.


Securities Act means the Securities Act of 1933 of the United States of America,
as amended.


Shares means the Present Shares and the Future Shares.


Total Shares means four hundred (400) ordinary shares, with a nominal value of
one thousand Netherlands Guilder (NLG 1,000) each, numbered 1 up to and
including 400, in the share capital of Resolution Holdings.


1.2        (a)        Unless otherwise defined herein all capitalized terms used herein and
defined in the Bank Credit Agreement shall be used herein as defined therein.


(b)        References to Articles are to
be construed as references to Articles of this Deed.


(c)        Words importing the singular
shall include the plural and vice versa and persons shall include bodies
corporate and other legal entities and vice versa.


(d)        Headings are for convenience
only and shall not affect the construction hereof.


 


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(e)        References to any party or
other person shall be deemed to be references to or to include, as appropriate,
their respective successors and permitted transferees and assigns.


(f)         References to the Bank Credit
Agreement shall be deemed to include references to that agreement as it may be
amended (including any amendment and restatement), modified, novated,
supplemented or restated from time to time (including, any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring (including
increasing the amount of available borrowings thereunder) all or any portion of
the debt under such agreement or any successor or replacement agreement and
whether by the same or any other agent, lender or group of lenders), and references
to the Bank Credit Obligations shall be deemed to include any and all monetary
obligations, liabilities and indebtedness which the Pledgor may have under or
in connection with the Secured Agreements as the same may be so amended,
modified, novated, supplemented or restated from time to time.


2.         Creation of Pledge on Shares


2.1        As security for the payment of
the Obligations, the Pledgor hereby agrees to pledge and hereby so pledges (verpandt) the Present Shares to the Collateral Agent and
agrees to pledge and hereby so pledges in advance (bij voorbaat)
the Future Shares to the Collateral Agent. The Collateral Agent hereby agrees
to accept and hereby so accepts these rights of pledge.


2.2        The parties hereto intend to
create a right of pledge on the Shares that shall rank junior (lager in rang) only to the rights of pledge created by the
Existing Shares Pledges; provided, however, that upon the release and/or
termination of the rights of pledge created by the Existing Shares Pledges, the
right of pledge created by this Deed shall become first ranking (eerste in rang).


2.3        The parties hereto agree that
enforcement of the Right of Pledge shall be subject to the limitations on
enforcement as provided for in Article 4.5 hereof.


3.         Further assurances


The Pledgor and the Company shall, if and when
reasonably required by the Collateral Agent, execute such further rights of
pledge and assurances in favour of the Collateral Agent, and do all such acts
and things as the Collateral Agent shall from time to time reasonably require
over or in relation to all or any of the Shares to secure the payment of the
relevant Obligations or to perfect or protect the security of the Collateral
Agent, as the case may be, created or purported to be created hereby over the
Shares or any part thereof or to facilitate the realisation of the same but so
that the terms of such further rights of pledge and assurances shall be no more
onerous than the terms of this Deed.


 


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4.         Representations and warranties and covenants


4.1        The Pledgor represents,
warrants and covenants to the Collateral Agent that:


(i)         it is the legal and
beneficial owner of, and has legal title to the Present Shares and the Present
Shares have not been encumbered by any limited right (beperkt
recht) other than the liens and security interests created by the
Existing Shares Pledges and this Deed, nor has an attachment (beslag) been levied on any of the Total Shares;


(ii)        it has full power, authority (beschikkingsbevoegdheid) and legal right to pledge all the
Present Shares and it will have full power, authority (beschikkingsbevoegdheid)
and legal right to pledge all Future Shares;


(iii)       no depositary receipts have
been issued for the Total Shares;


(iv)       the Total Shares represent the
entire issued and outstanding share capital of Resolution Holdings;


(v)        this Deed (a) has been duly
authorized, executed and delivered by the Pledgor and (b) constitutes the
legal, valid and binding obligations of the Pledgor, enforceable against the Pledgor
in accordance with its terms, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and (c)
creates a valid right of pledge (pandrecht) with
respect to the Shares, ranking junior (lager in rang) only to the rights of pledge created by the Existing Shares
Pledges; provided, however, that upon the release and/or termination of the
rights of pledge created by the Existing Shares Pledges, the right of pledge
created by this Deed shall become first ranking (eerste in
rang);


(vi)       except to the extent already
obtained or made, no consent of any other party (including, without limitation,
any stockholder, partner, member or creditor of the Pledgor or any of its
subsidiaries) and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or declaration with,
any governmental authority is required to be obtained by the Pledgor in
connection with (a) the execution, delivery or performance of this Deed, (b)
the validity or enforceability of this Deed, (c) the perfection or
enforceability of the security interest in the Shares as created pursuant to
this Deed or (d) except for compliance with or as may be required by applicable
securities laws, the exercise by the Collateral Agent of any of its rights or
remedies provided herein;


(vii)      after the release and/or
termination of the rights of pledge created by the Existing Shares Pledges, the
execution, delivery and performance of this Deed will not violate any provision
of any applicable law or regulation or of any order, judgment, writ, award or
decree of any court, arbitrator or governmental authority, domestic or foreign,


 


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applicable to the Pledgor, or of the
articles of association of the Pledgor or of the Company, or of any securities
issued by the Pledgor or any of its subsidiaries, or of any mortgage, deed of
trust, indenture, lease, loan agreement, credit agreement or other material
contract, agreement or instrument or undertaking to which the Pledgor or any of
its subsidiaries is a party or which purports to be binding upon the Pledgor or
any of its subsidiaries or upon any of their respective assets and will not
result in the creation or imposition of (or the obligation to create or impose)
any lien or encumbrance on any of the assets of the Pledgor or any of its
subsidiaries except as contemplated by this Deed;


(viii)     all of the Total Shares have been
duly and validly issued and acquired, are fully paid and subject to no options
to purchase or similar rights.


4.2        The Pledgor covenants and
agrees that it will defend the Collateral Agent’s right, title and security
interest in and to the Shares and the proceeds thereof against the claims and
demands of all persons whomsoever; and the Pledgor covenants and agrees that it
will likewise defend the right thereto and security interest therein of the
Collateral Agent.


4.3        The Pledgor and the Company
covenant and agree that they will not (without the prior written consent of the
Collateral Agent, which consent will not be unreasonably withheld) co-operate
to issue any depositary receipts in relation to the Shares.


4.4        The Pledgor covenants and
agrees that it will not (without the prior written consent of the Collateral
Agent, which consent will not be unreasonably withheld) cause or permit to be
issued any new shares in the capital of the Company, other than to the Pledgor.


4.5        The Collateral Agent, to this
extent acting in its capacity as creditor of the Note Credit Document
Obligations, covenants that it will at no time enforce the Right of Pledge for
more than the Noteholders’ Portion. The Collateral Agent, to this extent acting
in its capacity as creditor of the Note Credit Document Obligations, further
covenants that, in the event that Rule 3-10 or Rule 3-16 of Regulation S-X
under the Securities Act is amended, modified, or interpreted by the SEC to
require (or is replaced with another rule or regulation, or any other law, rule
or regulations is adopted which would require) the filing with the SEC of
separate financial statements of any Subsidiary of RPP USA (including, without
limitation, the Company) due to the fact that such Subsidiary’s capital stock
or other securities secure the Additional Senior Secured Notes, then the
Collateral Agent, will not enforce the Right of Pledge for any Shares as would
be necessary to not be subjected to such requirement.


 


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5.         Voting Rights


5.1        The Pledgor and the Collateral
Agent hereby stipulate (within the meaning of Article 2:198(3) NCC) that the
voting rights and all other consensual rights attaching to the Shares are
vested in (toekomen  aan)
the Collateral Agent subject to the fulfilment of each of the following
conditions precedent (opschortende voorwaarden):
(i) an Event of Default has occurred and (ii) the Collateral Agent has given
notice to the Company and the Pledgor that it wishes to exercise such rights.
Upon receipt of such notification by the Company, the Collateral Agent shall be
entitled to exercise the voting rights attached to the Shares and shall be
entitled to exercise all rights to give consents and waivers with respect to the
Shares, and the Pledgor shall no longer be entitled to exercise the voting
rights or such other rights. As long as the Collateral Agent does not hold the
voting rights with respect to the Shares, it shall not have the rights of
holders of depositary receipts, issued with the co-operation of a company. It
is understood that when the Collateral Agent will hold the voting rights with
respect to the Shares, both the Pledgor and the Collateral Agent shall have the
rights of holders of depositary receipts, issued with the co-operation of the
of a company, by operation of law. To the extent possible under Netherlands
law, the Pledgor waives these rights of holders of depositary receipts in
advance and the Collateral Agent accepts this waiver.


5.2        The Collateral Agent may, if
it deems it necessary to ensure that a transfer of voting rights attaching to
the Shares is effective, require the Pledgor to adopt a shareholders resolution
to approve the transfer of the voting rights attached to the Shares (under the
conditions precedent specified in Article 5.1).


5.3        No vote shall be cast or any
consent, waiver or rectification given or any action taken or omitted to be
taken by the Pledgor, which would violate or be inconsistent with any of the
terms of this Deed or the Bank Credit Agreement, the US Security Agreement or
any other Loan Document or Note Credit Document, or which would have the effect
of impairing the value of the Shares or any part thereof in any material
respect or the position or interests of the Collateral Agent in the Shares in
any material respect.


6.         Distributions on the Shares


The Collateral Agent shall be entitled to receive and
retain all cash dividends paid in respect of the Shares as well as all other
payments on the Shares, provided, however, that the Collateral Agent hereby
grants permission (toestemming) to
the Pledgor within the meaning of Article 3:246(4) NCC to exercise these
rights. The Pledgor shall be so entitled, and the permission is granted only as
long as no Event of Default has occurred and is continuing and as long as the
Collateral Agent has not notified the Company and the Pledgor in writing that
this permission is no longer granted.


 


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7.         Immediate foreclosure


7.1        If an Event of Default shall
have occurred and be continuing and there is a default (verzuim)
in the performance of any of the Obligations, the Collateral Agent shall be
empowered without notice or other demand, acting upon the instructions of the
Required Secured Creditors (as defined in the US Security Agreement, but
excluding clause (iii) of such definition for purposes of this Deed), subject
to the terms of the Intercreditor Agreement, to cause all or a part of the
Shares to be sold in accordance with the provisions of the Articles of
Association of the Company and the laws of the Netherlands, provided that the
Articles 3:234 and 3:249 and 3:252 NCC shall not apply.


7.2        The Pledgor hereby waives its
right pursuant to Article 3:251 (1) NCC, which waiver is hereby accepted by the
Collateral Agent. To the extent this pledge constitutes a third party security
right as referred to in the last sentence of Article 3:231(1) of the NCC, the
Pledgor hereby waives the right to invoke Article 3:233(2), Article 3:234 and
Article 6:139 of the NCC, which waiver is hereby accepted by the Collateral
Agent.


7.3        The Collateral Agent is
irrevocably authorised (without obligation) by each Pledgor to, in the event of
a sale as referred to in paragraph 1 of this Article 7, offer the Shares for sale
in the manner prescribed by the Company’s Articles of Association or to seek
the approval of the corporate body designated under the Company’s Articles of
Association as empowered to approve all proposed transfers of shares, as the
case may be, and to exercise any of the Pledgor’s rights in connection with the
sale and transfer of the Shares as provided in Article 2:198 (5) NCC.


7.4        To the extent permitted by
applicable law, the Pledgor as the sole shareholder of the Company hereby
waives its rights of first refusal, if any, in relation to the sale of the
Shares referred to in this Article 7, which waiver is hereby accepted by the
Collateral Agent.


7.5        If an Event of Default shall
have occurred and be continuing, then, and in every such case, the Pledgor and
the Company shall render such assistance and provide such information free of
charge as the Collateral Agent may reasonably deem necessary in connection with
the exercise by the Collateral Agent (acting at the direction of the Required
Secured Creditors (as defined in the US Security Agreement, but excluding
clause (iii) of such definition for purposes of this Deed), subject to the
terms of the Intercreditor Agreement, of its rights, powers or remedies
provided for in this Deed.


7.6        To the extent permitted by
applicable law, the Collateral Agent (acting at the direction of the Required
Secured Creditors (as defined in the US Security Agreement, but excluding
clause (iii) of such definition for purposes of this Deed) subject to the terms
of the Intercreditor Agreement), shall apply the proceeds of the sold Shares in
the manner provided in


 


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Section 9.4, excluding paragraphs (iv) and
(v) thereof, of the US Security Agreement and the provisions of the Intercreditor
Agreement.


7.7        The Collateral Agent and the
Secured Creditors shall not be liable to the Pledgor for any damages caused by
the sale of the Shares pursuant to this Article 7.


7.8        The Additional Senior Secured
Notes Trustee has expressly acknowledged and agreed in Article 10.7 of the Existing
First Shares Pledge that, pursuant to Section 9.1 of the US Security Agreement
and pursuant to the Intercreditor Agreement (both as defined in such Existing
First Shares Pledge), this Deed may be enforced only by the action of the
Collateral Agent, acting upon the instructions (made subject to the provisions
of the Intercreditor Agreement) of the Required Secured Creditors (as defined
in the US Security Agreement, but excluding clause (iii) of such definition for
purposes of this Deed) (as defined in the US Security Agreement), and that
neither the Additional Senior Secured Notes Trustee nor any of the Additional
Senior Secured Noteholders shall have any right individually to seek to enforce
or to enforce this Deed or to realize upon the security granted hereby.


7.9        The Additional Senior Secured
Notes Trustee has acknowledged and agreed in Article 10.8 of the Existing First
Shares Pledge that the obligations of the Collateral Agent as holder of the
first priority right of pledge with respect to the Shares and with respect to
the disposition thereof, and otherwise under such deed, are only those
expressly set forth in such deed and as provided in Annex N to the US Security
Agreement.


8.         Subrogation claims


8.1        Until such time as all
Obligations have been irrevocably paid, and the Termination Date (as defined in
the US Security Agreement) has occurred, the Pledgor hereby waives (to the
fullest extent permitted by applicable law) all, and agrees not to exercise
any, contractual, statutory or common law rights of reimbursement, contribution
or indemnity from the relevant US Borrowers which it may at any time otherwise
have as a result of this Deed.


8.2        After all Obligations have
been irrevocably paid in full, and the Termination Date (as defined in the US
Security Agreement) has occurred, if its Shares have been sold hereunder (and
it has not been reimbursed) the Pledgor shall be entitled to exercise its
rights pursuant to it being subrogated to the claims of the Secured Creditors
(with respect to any of the Obligations) against the relevant US Borrowers.
Except as expressly provided in the immediately preceding sentence, the Pledgor
waives (to the fullest extent permitted by applicable law) all, and agrees not
to exercise any, rights of subrogation which it may at any time otherwise have
as a result of this Deed (whether contractual, by law or otherwise) to the
claims of the Secured Creditors against the relevant US Borrowers. The Pledgor
hereby further waives (to


 


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the fullest extent permitted by applicable
law), and further agrees not to exercise, any right to enforce any other remedy
which the Secured Creditors now have or may hereafter have against the US
Borrowers or any endorser of all or any part of the Obligations and any benefit
of, and any right to participate in, any security or collateral given to or for
the benefit of the Secured Creditors to secure payment of any of the
Obligations.


8.3                       To the extent
this Article 8 is inconsistent with Section 11.4 of the Bank Credit Agreement,
such Section 11.4 shall control.


9.         Currencies


9.1        All moneys received or held by
the Collateral Agent under this Deed on or after the date on which an Event of
Default has occurred and is continuing in a currency other than a currency in
which the Obligations is denominated may from time to time be sold for the
currency in which the Obligations is denominated as the Collateral Agent
reasonably considers necessary or desirable and the Pledgor shall be liable to
the Collateral Agent for the full cost (including all costs, charges and
expenses) properly incurred in relation to such sale. The Collateral Agent and
the Secured Creditors shall not have any liability to the Pledgor in respect of
any loss resulting from any fluctuation in exchange rates before or after any
such sale.


9.2        No payment to the Collateral
Agent or the Secured Creditors (whether under any judgement or court order or
otherwise) shall discharge the obligation or liability of the Pledgor in
respect of which it was made unless and until the Collateral Agent or the
Secured Creditors shall have received payment in full in the currency in which
such obligation or liability was incurred. To the extent that the amount of any
such payment shall on actual conversion into such currency fall short of such
obligation or liability expressed in that currency, the Collateral Agent or the
Secured Creditors, as the case may be, shall have a further separate cause of
action against the Pledgor to recover such shortfall and shall be entitled to
enforce the security hereby created to recover the amount of the shortfall.


10.       Unfettered discretion


Save as otherwise provided in this Deed or the US
Security Agreement any liability or power which may be exercised or any
determination which may be made under this Deed by the Collateral Agent may be
exercised or made in its absolute and unfettered discretion and it shall not be
obliged to give reasons therefore.


11.       Notices


All such notices and communications hereunder shall be
sent or delivered by mail, telegraph, telex, fax, cable or overnight courier
service and all such notices and communications shall, when mailed,
telegraphed, telexed, faxed, or cabled or sent by overnight courier, be
effective when delivered to the Person to whom such notice or communication is
addressed, except that notices and communications to


 


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the Collateral Agent or to the Pledgor shall not be
effective until received by the Collateral Agent or the Pledgor, as the case
may be. All notices and other communications shall be in writing and addressed
as provided for under Article 12.1 of the US Security Agreement.


12.       Irrevocable power of attorney


12.1      The Pledgor hereby grants to the
Collateral Agent an irrevocable and unconditional power of attorney (without
obligation), with the right of substitution, to perform on its behalf and at
its expense any and all of its obligations under this Deed.


12.2      The Pledgor and the Collateral
Agent hereby in accordance with Article 3:68 NCC agree that the Collateral
Agent shall also be authorized to represent the Pledgor under the said power of
attorney in case of a conflict of interests between the interest of the Pledgor
and the Collateral Agent.


13.          Severability


To the extent possible under applicable law, in the
event a provision hereof were to be ruled at any time by any applicable
authority or court to be invalid or null and void or unenforceable, such
invalidity or nullity or unenforceability shall not affect the validity or
enforceability of the other provisions hereof and the parties hereto shall
agree on a new provision consistent with the purposes of the invalid or
unenforceable provision of this Deed.


14.          Termination: Release


14.1      Article 12.2 of the US Security
Agreement shall apply to this Deed and the rights of pledge created hereunder,
other than as provided in Articles 14.2 and 14.3 of this Deed.


14.2      It is expressly agreed that the
Collateral Agent (upon the direction (made subject to the provisions of the
Intercreditor Agreement) of the Required Secured Creditors (as defined in the
US Security Agreement, but excluding clause (iii) of such definition for
purposes of this Deed), unless such direction is not required pursuant to the
US Pledge Agreement) will be entitled to terminate the rights of pledge created
in this Deed in whole or in part by notice (opzegging) to
the Pledgor, with a copy to the other parties of this Deed.


14.3      The parties to this Deed agree
that, upon termination of the rights of pledge by notice pursuant to Article
14.2 of this Deed, the rights and obligations under this Deed can be terminated
in whole or in part by the Collateral Agent (acting upon the direction of the
Required Secured Creditors (as defined in the US Security Agreement, but
excluding clause (iii) of such definition for purposes of this Deed), unless
such direction is not required pursuant to the US Pledge Agreement) and the
Pledgor by means of a private deed (onderhandse akte).


 


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15.       Headings descriptive


The headings in this Deed are for purposes of
reference only and shall not limit or define the meaning hereof.


16.       Applicable law and jurisdiction


16.1      This Deed and any dispute,
controversy, proceedings or claim of whatever nature arising out of or in any
way relating to this Deed and the rights of pledge created hereby shall be
governed by and construed in accordance with the laws of the Netherlands.


16.2      Each of the parties hereto
irrevocably agrees that all disputes arising out of this Deed shall be
submitted in first instance to the competent court at Amsterdam, the
Netherlands. Nothing in the preceding sentence shall limit the Collateral Agent’s
right to bring proceedings against the Pledgor in any other court of competent
jurisdiction.


17.       Acknowledgement


The person appearing acting on behalf of the Company,
declared that (i) the Company acknowledges the right of pledge created by this
Deed on the Shares and that the Company will cause such right of pledge to be
recorded in its shareholders’ register without delay, and (ii) the Company has
received notice of the right of pledge to the extent consisting of claims
against the Company in accordance with Article 3:236 (2) and Article 3:94 (1)
of the NCC.


18.       Acquisition


The Total Shares were acquired by RPP USA by virtue of
a deed of transfer, executed before R.J.C. van Helden, civil law notary in
Amsterdam, the Netherlands, on the fourteenth day of November two thousand.


19.       Civil Law Notary


The civil law notary who executes this Deed is a civil
law notary holding office with Allen & Overy LLP, the Collateral Agent’s legal
adviser. The Pledgor, the Collateral Agent and the Company hereby acknowledge
that they have been informed of the existence of the Ordinance Containing Rules
of Professional Conduct and Ethics (Verordening beroeps- en
gedragsregels) of the Royal Professional Organisation of Civil Law
Notaries (Koninklijke Notariële Beroepsorganisatie)
and explicitly agree and acknowledge (i) that Allen & Overy LLP may advise
and act on behalf of the Collateral Agent with respect to this Deed, and any
agreements or any disputes related to or resulting from this Deed, and (ii)
that the civil law notary holding office with Allen & Overy LLP executes
this Deed.


Close.


The persons
appearing are known to me, civil law notary.


This deed was executed in Amsterdam, the Netherlands,
on the date first above written. Before reading out, a concise summary and an
explanation of the contents of this deed were given to the persons appearing.
The persons appearing then declared that they had taken note of and agreed to
the contents of this deed and did


 


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not want the complete deed to be read to them.
Thereupon, after limited reading, this deed was signed by the persons appearing
and by me, civil law notary.


(Signed by: M.J.O. Moerdijk; M.W. Galjaart; Chr.M.
Stokkermans)


 


	
   

  	
  FOR TRUE COPY:

  



 


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