Exhibit 99.12
Execution copy
INSTRUCTIONS TO THE NOTARY
FLOATING CHARGE AGREEMENT
DATED 11 FEBRUARY 2004
BETWEEN
SOLUTIA EUROPE SA/NV
AS PLEDGOR
AND
KBC BANK NV
AS PLEDGEE
[NOTE: FOR TRANSLATION PURPOSES ONLY - DEFINITIVE FLOATING
CHARGE AGREEMENT TO BE IN DUTCH]
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TABLE OF CONTENTS
1. Definitions........................................................4
2. Pledge.............................................................4
3. The Business.......................................................5
4. Representations, warranties and undertakings.......................6
5. Continuing security and other matters..............................7
6. Enforcement........................................................9
7. Application of proceeds............................................9
8. Indemnity..........................................................9
9. Discharge of the pledge............................................9
10. Liability of Pledgee..............................................10
11. Responsibility of the Pledgee.....................................10
12. Expenses..........................................................10
13. Notices...........................................................11
14. General...........................................................12
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FLOATING CHARGE AGREEMENT
BETWEEN:
(1) SOLUTIA EUROPE SA/NV, a Belgian company limited by shares, having
its registered office at Boondaelse Steenweg 6, B-1050 Brussels,
Belgium and registered at the Crossroads Bank for Enterprises,
under enterprise number 0460.474.440,
(the PLEDGOR);
AND:
(2) KBC BANK NV, a Belgian bank, with registered office at Havenlaan 2,
B-1080 Brussels, Belgium, registered at the Crossroads Bank for
Enterprises, under enterprise number 0462.920.226 and acting for
itself and as joint creditor pursuant to Clause 2.1 of the
Collateral Agency Agreement (as defined below),
(the PLEDGEE).
WHEREAS:
(A) The Pledgor and the Noteholders have agreed to amend and restate the
Pledgor's euro 200,000,000 6.25 percent Notes due 2005, as amended and
restated, the euro 200,000,000 10.00 percent Senior Secured Notes due
2008 (together with the Terms and Conditions of Notes annexed thereto,
as amended, modified or supplemented from time to time, the NOTES and
such Terms and Conditions of Notes, as amended, modified or
supplemented from time to time, the TERMS AND CONDITIONS OF NOTES)
pursuant to an Agreement of Understanding and Restructuring dated 30
January 2004 among the Pledgor and the Noteholders party thereto (as
amended, modified or supplemented from time to time, the AGREEMENT OF
UNDERSTANDING). In connection with the Notes, the Pledgor will enter
into the Fiscal Agency Agreement dated 11 February 2004 among the
Pledgor, Kredietbank S.A. Luxembourgeoise as fiscal agent and paying
agent, and KBC Bank NV as principal paying agent (as amended, modified
or supplemented from time to time, the FISCAL AGENCY AGREEMENT). The
Noteholders and the Couponholders are entitled to the benefit of, are
bound by and are deemed to have notice of all of the provisions of the
Fiscal Agency Agreement.
(B) It is a requirement of the Agreement of Understanding and the Terms
and Conditions of Notes that the Pledgor grant a floating charge to
the Pledgee to secure its obligations to the Pledgee as provided
herein and undertake the obligations contemplated by this
Agreement.
(C) Pursuant to Clause 2.1 of the Collateral Agency Agreement (as
defined below), the Pledgee shall be the joint creditor (together
with the relevant Noteholder) of each and every obligation of the
Pledgor towards each of the Noteholders under the Notes and the
other Credit Documents to which the Pledgor is party, and
accordingly the Pledgee will have its own independent right to
demand performance by the Pledgor of those obligations. There is as
a result a joint creditorship under New York law between the
Noteholders and the Pledgee with regard to the sums owed under the
Notes and the other Credit Documents.
(D) In consideration of the agreements set forth herein and in the
Terms and Conditions of Notes, the Agreement of Understanding and
the other Credit Documents, the Pledgor agrees to create a first
ranking pledge in respect of the Business (as defined below) in
favour of the Pledgee under the following terms (the AGREEMENT).
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IT HAS BEEN AGREED AS FOLLOWS:
1. DEFINITIONS
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
BUSINESS means the business described in Clause 3 of this Agreement;
COLLATERAL AGENCY AGREEMENT means the collateral agency agreement
dated 11 February 2004 among the Pledgor, the Subsidiary Guarantors,
the Pledgee and the Noteholders party thereto, as amended, modified
or supplemented from to time to time;
PLEDGE means the pledge of the Business created or arising pursuant
to this Agreement;
RECEIVABLES PLEDGE AGREEMENT means the receivables pledge
agreement dated the date hereof between the Pledgor and the
Pledgee, as amended, modified or supplemented from time to time;
SECURED OBLIGATIONS means all present and future actual and
contingent indebtedness, obligations, and liabilities of the
Pledgor to the Pledgee which may arise under, out of, or in
connection with the Collateral Agency Agreement, the Fiscal Agency
Agreement, the Notes, or any other Credit Document to which the
Pledgor is party.
Unless otherwise defined in this Agreement, words and expressions defined in
the Terms and Conditions of Notes shall have the same meaning when used in
this Agreement.
In this Agreement, each reference to a document will be deemed to be a
reference to such document as amended and/or supplemented by the parties to
such document from time to time.
1.2 SUCCESSORS AND ASSIGNS
The expressions PLEDGEE, NOTEHOLDERS and PLEDGOR include their respective
successors, and, in the case of the Pledgee, its nominee or such other
person as may from time to time be appointed Collateral Agent for the
Noteholders and, in the case of the Noteholders, their respective
transferees and assignees to whom any Note or any Secured Obligations shall
have been transferred.
1.3 HEADINGS
Clause headings and the table of contents are inserted for convenience of
reference only and shall be ignored in the interpretation of this Agreement.
2. PLEDGE
(a) The Pledgor hereby pledges its Business (fonds de commerce/handelszaak)
to the Pledgee in first rank, as security for the Secured Obligations
in accordance with the law of 25 October 1919.
(b) This pledge is granted up to the following amounts:
(i) in respect of principal EUR 200,000,000
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(ii) three years of interest calculated at the rate of 18%, or
such other rate as may be agreed between the parties, in
accordance with article 87 of the Mortgage Law
pro memorie/memoire
(iii) for accessories such as retaining fees, reinvestment and
broken funding, costs for subrogation and inscription,
expenses and fees concerning collection of debt, costs and
fees concerning the perfection, foreclosure, release and
preservation of the security, estimate and file costs as
well as all amounts exceeding the above mentioned
principal, because of accounting matured interests,
retaining fees or unpaid negotiable instruments.
EUR 20,000,000
With a view to the limitation of inscription costs, the Pledgee may apply in
certain judicial districts for this Pledge to be recorded in lower amounts.
The Pledgee shall have no obligation whatsoever to do so, and in so doing
shall not be prevented from subsequently applying in such districts for the
Pledge to be recorded in its full amount.
In the event that Pledgor operates its Business in any judicial district in
Belgium other than the four judicial districts in which the Pledge will be
recorded on or about the date hereof (any such district, an ADDITIONAL
JUDICIAL DISTRICT), the Pledgor shall, as required by Article 4.2 (c),
notify the Pledgee in writing and this Pledge shall be recorded in such
Additional Judicial District as set out in Article 3, second paragraph
below, and the Pledgor shall pay all inscription and other costs and
expenses in connection therewith as required by Article 12.
On the date of this Agreement, the parties have agreed to register this
Pledge in the following judicial districts for the following amounts:
- - Nivelles: EUR 200,000,000; in principal and EUR 20,000,000 in
accessories;
- - Bruxelles: EUR 25,000 in principal and accessories;
- - Ghent: EUR 200,000,000 in principal and EUR 20,000,000 in
accessories; and
- - Antwerp: EUR 100,000,000; in principal and EUR 10,000,000 in
accessories.
The pledge made in this Clause 2 and Clause 3 shall not include a pledge of
Pledgor's rights under the Master Operating Agreement effective as of 1
September 1997 between Monsanto Company and the Parent including its
appendixes between Monsanto Europe SA and the Pledgor relating to Pledgor's
use thereunder of facilities located in Antwerp and Ghent to the extent that
such pledge would violate the express and enforceable provisions of such
Master Operating Agreement binding on the Pledgor under applicable law.
3. THE BUSINESS
The Business being pledged hereunder is the business which consists of
(i) all acts, whether alone or with the participation of third parties, in
connection with the production, exploitation, distribution, creation of
profitability in and the sale of chemical, plastic products, synthetic
fibres and of similar products, (ii) the building of, the fabrication, the
sale and purchase and the exploitation of appliances, machines and
installations that serve the fabrication and utilisation of these products
(described in (i) above), (iii) the improvement, the exploitation by way of
licenses, the study, the investigation, the acquisition, the improvement of
all patents, inventions and fabrication procedures in relation to these
products (described in (i) above), and of any other activities that the
Pledgor may from time to time carry out, operated by the Pledgor at
Brussels, Gent, Antwerp, Louvain-la-Neuve, and/or at any other
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place where the Pledgor may now or in the future operate such business,
registered at the Crossroads Bank for Enterprises with the enterprise number
0440.474.440.
The parties declare that they regard such Business, irrespective of the
number of places in which it may now or in the future be operated, as
constituting one single handelszaak/fonds de commerce. The Pledgee shall
nevertheless be authorised, for the sake of certainty, to proceed with the
registration of this Pledge in the judicial districts as referred to in
Clause 4.1 (f) and in all judicial districts where it is or will be
operated, and such multiple registrations shall not affect the nature of the
Business as a single handelszaak/fonds de commerce.
The Business is comprised of all constitutive parts thereof, including
without limitation (i) the administrative licences and authorisations
connected with the operation of the Business; (ii) goodwill, the commercial
names and signs, the commercial organisation; (iii) trade and service marks,
patents and all other intellectual property rights; (iv) know-how whether
the subject of exclusive rights or not; (v) all rights under leases,
licences and other contracts; (vi) all on-going contracts (including
insurance contracts); (vii) all records, materials, machines, equipment,
computers and vehicles; (viii) all items of stock (subject as the case may
be to limitations provided by law), in each case whether located on the
premises of the Pledgor or in the hands of third parties; (ix) all
shareholdings and participations; (x) all cash, receivables, negotiable
instruments and securities; (xi) all assets on accounts with financial
institutions; (xii) all items of movable property deemed immovable by
destination; (xiii) all additions, replacements and improvements; and
(xiv) all such items as may lawfully form part of a handelszaak/fonds de
commerce for the purposes of the law of 25 October 1919 as amended from time
to time. For the avoidance of doubt, the receivables including but not
limited to the trade receivables, that are subject to the Receivables Pledge
Agreement are also included in the Business being pledged hereunder.
For the avoidance of doubt, the Pledgee recognises that the machinery and
equipment situated on the Ghent site as listed in Annex 4 (as said Annex may
be supplemented, amended or updated from time to time to include only
machinery and equipment owned by Monsanto), are owned by Monsanto SA and
consequently are not part of the Business.
4. REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
4.1 REPRESENTATIONS AND WARRANTIES
Without prejudice and in addition to the representations and warranties of
the Pledgor under the other Credit Documents to which the Pledgor is party,
the Pledgor represents and warrants to the Pledgee and undertakes during the
subsistence of this Agreement as follows:
(a) it is a naamloze vennootschap/societe anonyme duly established
under the laws of Belgium, validly existing and not in liquidation,
with power to enter into this Agreement and to exercise its rights
and perform its obligations hereunder and all corporate and other
action required to authorise its execution and performance of this
Agreement has been duly taken;
(b) it does not conduct any business, has no place of business and is
not registered in any register of commerce, in Belgium or abroad,
other than as specifically mentioned in Clause 3 above and as
listed in Annex 1;
(c) it owns the Business free and clear of any Liens save for Permitted
Liens and except for the lien granted to the City of Ghent pursuant
to article 20 of the Belgian Mortgage Law under the long term lease
agreement (erfpacht) between the City of Ghent and NV Monsanto
Europe, to the extent valid and enforceable;
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(d) as of the date hereof, neither the Business nor any part thereof is
subject to any seizure or other enforcement measure for more than
an aggregate amount of EUR 100,000;
(e) it maintains adequate insurance cover against risks normally
insured against by companies carrying on a similar business, and in
particular maintains all insurance required by statute;
(f) the properties as described in Annex 2, in which part of the
Business is operated are owned by the Pledgor free and clear of any
Liens save for Permitted Liens; the properties as described in
Annex 3, in which part of the Business is operated, and any other
properties in which part of the Business is currently operated, are
held on lease (or as otherwise specified in Annex 3) by the
Pledgor;
(g) this Agreement does not violate any material contractual or other
obligation binding upon the Pledgor; and
(h) this Agreement creates a valid first ranking pledge of the Business.
4.2 UNDERTAKINGS
The Pledgor undertakes as follows:
(a) except as permitted under the Credit Documents and as long as all
Secured Obligations have not been unconditionally and irrevocably
discharged, it (i) shall not dispose in any way of the Business,
(ii) save for the Lien pursuant to the Floating Charge Mandate,
shall not create any other Lien (or mandate anyone to do so) in
respect of the Business and shall, save for Permitted Liens, not
permit the existence of any such Lien, and (iii) in general shall
not take any action that could intentionally negatively influence
the value of the Pledge;
(b) it shall procure that no executory seizure (saisie executoire/
uitvoerend beslag) is made on the Business or any part thereof
and that any conservatory seizure (saisie conservatoire/bewarend
beslag) thereon is lifted within 60 days of its first being made;
(c) it shall notify the Pledgee in advance of any transfer, opening or
closure of any place in which it operates its Business. For the
avoidance of doubt the Pledgor is entitled to put consigned stock
and certain equipment at a customer in the ordinary course of
business without having to notify the Pledgee thereof, prior to the
occurrence and continuance of an Event of Default;
(d) it shall procure that it is and remains at all times duly
registered in the appropriate register of commerce in Belgium or
abroad for each of the places in which it operates its Business
from time to time, and shall forthwith upon making any new
registration supply the Pledgee with evidence of such registration,
to the extent that this evidence is available; and
(e) it shall co-operate with the Pledgee and sign or cause to be signed
all such further documents and take all such further action as the
Pledgee may from time to time reasonably request to perfect and
protect the Pledge under Belgian law and to carry out the
provisions and purposes of this Agreement. The Pledgee shall not be
obligated to request any action under this Clause (e) except upon
written instructions from the Requisite Noteholders.
5. CONTINUING SECURITY AND OTHER MATTERS
5.1 CONTINUING SECURITY
The security created by this Agreement:
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(a) shall be a continuing security for the Secured Obligations;
(b) shall be in addition to and shall not prejudice or affect, and may
be enforced by the Pledgee and the Noteholders without prior
recourse to, any other security interest or remedy;
(c) shall not be satisfied by any intermediate payment or satisfaction
of any part of the Secured Obligations or by any settlement of
accounts;
(d) shall not be discharged by the entry of any Secured Obligations
into any current account, in which case this Pledge shall secure
any provisional or final balance of such current account up to the
amount in which the Secured Obligations were entered therein;
(e) shall not in any way be prejudiced or affected by any time or
waiver granted to, or composition with, the Pledgor or any other
Person, by any amendment (however fundamental) or supplement to any
Credit Document or any other document, by the taking, variation,
compromise, exchange, renewal or release of or refusal or neglect
to perfect or enforce any right, remedy or security over the
Business or by anything done or omitted which but for this
provision might operate to exonerate the Pledgor;
(f) shall not in any way be prejudiced or affected by any change in the
constitution or status of the Pledgor or any other Person or by any
legal limitation, disability, incapacity or other circumstances
relating to the Pledgor or any other Person, by any invalidity,
illegality or unenforceability of the obligations of the Pledgor or
any other Person; and
(g) the Pledgee or, as the case may be, Requisite Noteholders may at
any time without discharging or in any way affecting this Pledge
(a) grant the Pledgor any time or indulgence, (b) concur in any
moratorium of the Secured Obligations, (c) amend the terms and
conditions of the Secured Obligations in accordance with the
provisions of the Terms and Conditions of Notes and the applicable
laws, (d) abstain from taking or perfecting any other security and
discharge any other security, (e) abstain from exercising any right
or recourse or from proving or claiming any debt and waive any
right or recourse, and (f) apply any payment received from the
Pledgor or for its account towards Secured Obligations or any other
obligations of the Pledgor of the Pledgee's choice.
5.2 RIGHTS ADDITIONAL
All the rights of the Pledgee hereunder shall be in addition to any other
right vested in the Pledgee and such rights may be exercised from time to
time and as often as the Pledgee may deem expedient. The Pledgor waives any
right it may have of first requiring the Pledgee (or any agent on its
behalf) to proceed against or claim payment from any other party, or enforce
any guarantee or security before enforcing the Pledge.
5.3 NO SUBROGATION
Until all Secured Obligations have been unconditionally and irrevocably
discharged, the Pledgor shall not by virtue of any payment made, security
realised or monies received hereunder for or on the account of the liability
of any other party:
(a) be subrogated to any rights, security or monies held, received or
receivable by the Pledgee or be entitled to any right of
contribution or indemnity; or
(b) claim, rank, prove or vote as a creditor of any party or its estate
in competition with the Pledgee; or
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(c) receive, claim or have the benefit of all payment, distribution or
security from or on account of any party, or exercise any right of
set-off as against such other party, other than as expressly
permitted by the Credit Documents.
5.4 PRESERVATION OF SECURITY IN THE EVENT OF NOVATION
In accordance with article 1278 of the Belgian Civil Code and without
prejudice to the scope of the Secured Obligations, the Pledgor and the
Pledgee agree that in the event of novation of all or any part of the
Secured Obligations or the change or replacement of the Pledgee or the
Pledgor, this Pledge will be maintained, automatically and without any
further formality or consent, to secure the Secured Obligations as novated
and in favour of the Pledgee or the new pledgees.
5.5 SETTLEMENTS CONDITIONAL
Any release, discharge or settlement between the Pledgor and the Pledgee
shall be conditional upon no security disposition or payment to the Pledgee
being void or set aside or ordered to be refunded and if such condition
shall not be fulfilled, the Pledgee shall be entitled to enforce the
security created by this Agreement as if such release, settlement or
discharge had not occurred and any such payment had not been made.
6. ENFORCEMENT
(a) Following the occurrence of an Event of Default that is continuing,
the Pledgee shall be entitled to enforce the security created by
this Agreement, and to exercise all rights and remedies, to the
fullest extent permitted by law and the Collateral Agency Agreement
and the Terms and Conditions of Notes.
(b) All enforcement costs will be considered as accessories to the main
obligation and will be borne by the Pledgor.
7. APPLICATION OF PROCEEDS
(a) Subject to the rights of any creditor with prior security or
preferential claims, the proceeds of the enforcement of the
security created by this Agreement shall be paid to the Pledgee.
Any such proceeds and all other amounts paid to the Pledgee under
this Agreement shall be applied in accordance with the Collateral
Agency Agreement.
(b) Should the proceeds of the enforcement of the Pledge be greater
than the outstanding amount of the Secured Obligations, the Pledgee
shall pay to the Pledgor any such excess.
8. INDEMNITY
The Pledgor shall fully indemnify and pay on demand to the Pledgee in
respect of all liabilities and justified costs and expenses reasonably
incurred by the Pledgee or any attorney, manager, agent or other Person
appointed by the Pledgee, in the execution of any rights, powers or
discretions vested in it pursuant hereto, save for liabilities and expenses
arising from the gross negligence (faute grave/ grove fout) or wilful
misconduct of the Pledgee.
9. DISCHARGE OF THE PLEDGE
(a) This Pledge shall be discharged by, and only by, the express
release thereof granted by the Pledgee.
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(b) Without delay when all Secured Obligations have been
unconditionally and irrevocably discharged, the Pledgee shall
grant, in accordance with the Collateral Agency Agreement, an
express release of this Pledge in such form as will permit
de-registration thereof at the Pledgor's expense.
(c) Any release or discharge of the Pledge shall be null and void and
without effect if any payment received by the Pledgee and applied
towards satisfaction of all or part of the Secured Obligations
(i) is avoided or declared invalid as against the creditors
of the maker of such payment; or
(ii) becomes repayable by the Pledgee to a third party; or
(iii) proves not to have been effectively received by the Pledgee;
and the Pledgee shall be entitled to enforce the pledge as if such
release or discharge had not occurred.
10. LIABILITY OF PLEDGEE
(a) The Pledgee shall not be liable for any acts or omissions with
respect to the Business pledged hereunder or the enforcement
or the losses arising in connection with the exercise of any of its
rights and powers hereunder, save for liabilities and expenses
arising from the gross negligence (faute grave/grove fout) or
wilful misconduct of the Pledgee.
(b) The Pledgee shall not be under any obligation to the Pledgor to
take any steps necessary to preserve any rights in the Business
against any other parties but may do so at its option, and all
reasonable expenses incurred in connection therewith shall be for
the account of the Pledgor and shall be part of the Secured
Obligations.
(c) If any such expenses are borne by the Pledgee, the Pledgor shall on
first demand reimburse the Pledgee therefor, and its reimbursement
obligation shall be part of the Secured Obligations.
11. RESPONSIBILITY OF THE PLEDGEE
The Pledgee shall not be responsible to any Noteholder for:
(i) the adequacy, accuracy or completeness of any recitals,
statements, representations or warranties contained in
this Agreement;
(ii) the adequacy, accuracy or completeness of any statement or
information (whether written or oral) made in or supplied
in connection with this Agreement; or
(iii) the legality, validity, effectiveness, adequacy or
enforceability of this Agreement.
12. EXPENSES
All expenses that the Pledgee may incur in connection with (i) the
administration of this Agreement as further provided in the Collateral
Agency Agreement, (ii) the custody or preservation of, or the sale of,
collection from, or other realisation upon, any of the Business, (iii) the
exercise or enforcement of any of the rights of the Pledgee hereunder, or
(iv) the failure by the Pledgor to perform or observe any of the provisions
hereof, shall be borne by the Pledgor. All other expenses and duties
reasonably
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incurred in connection with this Agreement, in particular with regard to the
establishment and perfection of the Pledge and the granting of any release,
shall be borne by the Pledgor. The Pledgor shall on first demand reimburse
the Pledgee for any such expenses or duties paid by them, and the same shall
be part of the Secured Obligations.
13. NOTICES
13.1 COMMUNICATION IN WRITING
Any communication to be made under or in connection with this Agreement
shall be made in writing and, unless otherwise stated, may be made by fax or
letter.
13.2 ADDRESSES
The address(es) and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each party for any
communication or document to be made or delivered under or in connection
with this Agreement is that identified with its name below or any other
substitute address(es), fax number or department or officer as any party may
notify to the other parties by not less than five Business Days' notice.
THE PLEDGOR: Solutia Europe SA/NV
Boondaelse Steenweg 6
B-1050 Brussels
Belgium
Parc Scientifique Fleming
Rue Laid Burniat 3
B-1348 Louvain-la-Neuve
Belgium
Fax: +32 10 48 12 24
Attention: Legal Department
THE PLEDGEE: KBC Bank NV
Havenlaan 12
B-1080 Brussels
Belgium
Fax: +32 2 429 4920
Attention: Mr. Dirk De Bleser
13.3 DELIVERY
Any communication or document made or delivered by one Person to another
under or in connection with this Agreement will only be effective:
(a) by way of fax, when received in legible form;
(b) if by way of letter, when it has been left at the relevant
address(es) with acknowledgement of receipt or when it has been
delivered to the addressee by registered mail;
(c) and, if a particular department or officer is specified as part of
its address details provided under Clause 13.2 (Addresses), if
addressed to that department or officer.
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13.4 ENGLISH LANGUAGE
Without prejudice to any other procedural rule applicable to any dispute,
any notice given under or in connection with this Agreement must be in
English.
14. GENERAL
14.1 ELECTION OF DOMICILE
For the purpose of the inscription of this Pledge at the mortgage registry
and for no other purposes, the Pledgee hereby elects domicile in the
judicial district of [TO BE COMPLETED FOR EVERY JUDICIAL DISTRICT] at [TO BE
COMPLETED].
14.2 NO WAIVER
No failure or delay by the Pledgee in exercising any right, power or remedy
under this Agreement shall operate as a waiver thereof nor shall any single
or partial exercise or waiver of any right, power or remedy. The remedies
provided in this Agreement are cumulative and are not exclusive of any
remedies provided by law.
14.3 SEVERABILITY
(a) Each of the provisions of this Agreement is several and distinct
from the others and if at any time one or more of such provisions
is or becomes invalid illegal or unenforceable the validity,
legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
(b) In case of any such illegality, invalidity or unenforceability, the
parties shall negotiate in good faith with a view to agree on the
replacement of such provision by a provision which is legal, valid
and enforceable and which is to the extent practicable in
accordance with the intents and purposes of this Agreement and
which in its economic effect comes as close as practicable to the
provision being replaced.
14.4 DELEGATION OF POWERS
The Pledgee shall be entitled, at any time and as often as may be expedient,
to delegate all or any of the powers and discretion vested in it by, this
Agreement in such manner, upon such terms and to such person as the Pledgee
in its absolute discretion may think fit.
14.5 BENEFIT OF THIS AGREEMENT
This Agreement shall be binding on, and inure for the benefit of, the
Pledgor and the Pledgee and their respective successors and assigns.
14.6 ASSIGNMENT
The Pledgor may not assign or transfer any of its rights or obligations
under this Agreement, save prior agreement in writing of the Pledgee.
14.7 EVIDENCE OF THE SECURED OBLIGATIONS OWING BY THE PLEDGOR
A certificate by the Pledgee as to the amount and the terms and conditions
of the Secured Obligations owing to the Pledgee from the Pledgor is, prima
facie evidence of the matters to which it relates.
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14.8 FURTHER ACTION
The parties undertake to execute a notarial deed substantially in the form
of this Agreement before notary Marcelis on 13 February 2004 at the latest.
14.9 GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with
Belgian law.
14.10 JURISDICTION
All disputes arising in connection with this Agreement shall be settled by
the courts of Brussels, without prejudice to the rights of the Pledgee to
take legal action before any other court of competent jurisdiction.
14.11 FINAL PROVISIONS
The usual provisions in respect of a declaration relating to VAT shall
apply.
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Made in 3 originals, of which one will be held by the Pledgor, one will be
held by the Pledgee and one will be held by counsel to the ad hoc committee
of Noteholders, on 11 February 2004.
SOLUTIA EUROPE SA/NV
AS PLEDGOR
/s/ Kristel DeRoover
- --------------------------
Name: Kristel DeRoover
Title: Attorney
KBC BANK NV
AS PLEDGEE
/s/ Dirk De Bleser
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Name: Dirk De Bleser
Title: Head Operations &
Accounting
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