Exhibit 99.17
EXECUTION VERSION
TRADEMARK PLEDGE AGREEMENT
between
CARBOGEN AG, c/o Carbogen Laboratories AG, Schachenallee 29, CH-5000 Aarau,
Switzerland
(the PLEDGOR)
and
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 0462.92.0.226, acting for itself and as joint creditor
pursuant to Clause 2.1 of the Collateral Agency Agreement (as defined
below),
(the PLEDGEE)
EXECUTION VERSION
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WHEREAS
A. Solutia Europe SA/NV (the ISSUER) and the Noteholders have agreed
to amend and restate the Issuer'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 Issuer and the Noteholders party thereto (as amended,
modified or supplemented from time to time, the AGREEMENT OF
UNDERSTANDING). In connection with the Notes, the Issuer will enter
into a Fiscal Agency Agreement dated on or about the date of this
Agreement among the Issuer, Kredietbank S.A. Luxembourgeoise as
fiscal agent and paying agent, and KBC Bank NV as principal paying
agent (as defined herein) (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 guaranty the prompt
payment and performance when due of all obligations of the Issuer
under the Credit Documents and grant a pledge of its trademark
"CarboGen" (as defined below) 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, the
Pledgee shall be the joint creditor (together with the relevant
Noteholder) of each and every obligation of the Pledgor, as
guarantor, towards each of the Noteholders under the Pledgor
Subsidiary Guaranty and the other Credit Documents to which it is a
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 Pledgor Subsidiary Guaranty and the other Credit
Documents.
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D. The Pledgor is the legal and beneficial owner of the trademark
"CarboGen" (the TRADEMARK, as hereinafter defined).
E. 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 Trademark in favour of the Pledgee
under the following terms (the AGREEMENT).
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Parties agree as follows:
1. INTERPRETATION
1.1. In this Agreement the following terms have the following meanings:
AGREEMENT has the meaning given to it in the Preamble.
COLLATERAL AGENCY AGREEMENT means the collateral agency agreement
dated on or about the date of this Agreement among the Issuer, the
Subsidiary Guarantors, the Pledgee and the Noteholders party
thereto, as amended, modified or supplemented from time to time.
PARTY means a party to this Agreement.
PAYMENT DEFAULT means the default of the Pledgor to pay to the
Pledgee any amounts when due owed by the Pledgor under the Pledgor
Subsidiary Guaranty, the Collateral Agency Agreement and any other
Credit Document to which it is party.
PLEDGE means the pledge of the Trademark created or arising
pursuant to this Agreement.
PLEDGOR SUBSIDIARY GUARANTY means the Subsidiary Guaranty made by
the Pledgor in favour of the Pledgee on or about the date of this
Agreement.
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 Pledgor
Subsidiary Guaranty or any other Credit Document to which the
Pledgor is party.
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TRADEMARK means any and all trademarks registered and pending
applications owned by Pledgor in any countries or registration
systems which consist of or contain the element "CarboGen",
including without limitation the trademarks listed in Schedule 1.
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Unless the context otherwise requires or 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.
1.2. Where the context so admits, the singular includes the plural and
vice versa.
1.3. The headings in this Agreement are for convenience only and are to
be ignored in construing this Agreement.
1.4. Any reference in this Agreement to a defined document is a
reference to that defined document as amended, supplemented or
novated from time to time in accordance with its terms.
2. PLEDGE
2.1. As security for the Secured Obligations, the Pledgor hereby pledges
the Trademark to the Pledgee as a first and first priority pledge.
2.2. Within 5 (five) Business Days of the date hereof, the Pledgor shall
deliver to the Pledgee a letter substantially in the form as set
forth in Schedule 2 for the registration of the Pledge with the
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Swiss Federal Intellectual Property Institute, duly signed by the
Pledgor.
2.3. The Pledgor authorizes the Pledgee to register the Pledge in other
countries or registration systems and undertakes to do all acts and
things necessary or useful, and to procure that any and all such
acts and things be done to properly effect such further
registrations. The costs of such registrations shall be borne by
the Pledgor.
2.4. The Pledgor shall when applying for new trademarks containing or
consisting of the element "CarboGen" in any country or registration
system simultaneously register at its own cost the Pledge
thereupon. The Pledgor shall without delay inform the Pledgee of
any such new applications for trademarks and provide the Pledgee
with copies thereof.
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3. CONTINUING SECURITY
3.1. This Agreement shall create a continuing security and no change or
amendment or increase whatsoever to the Notes or in any document or
agreement related thereto nor any release of Security shall affect
the validity or the scope of this Agreement. This Agreement shall
not be discharged or in any way 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. The Pledgee or, as the case may
be, Requisite Noteholders may at any time without discharging or in
any way affecting this Agreement (a) grant the Issuer or any
Subsidiary Guarantor any time or indulgence, (b) concur in any
moratorium of the Secured Obligations, (c) abstain from taking or
perfecting any other security and discharge any other security, (d)
abstain from exercising any right or recourse or from proving or
claiming any debt and waive any right or recourse, (e) amend the
terms and conditions of the Secured Obligations in accordance with
the Terms and Conditions of Notes and applicable law, and (f) apply
any payment received from the Pledgor or for its account towards
the Secured Obligations or any other obligations of the Pledgor of
the Pledgee's choice.
3.2. Without prejudice to the scope of the Secured Obligations, the
Pledgor and the Pledgee agree that in the event of a transfer of
all or any part of the Secured Obligations by way of assignment or
novation in accordance with the Credit Documents or in the event of
a change or replacement of the Pledgee or the Pledgor in accordance
with the Credit Documents, the Assignments will be maintained,
automatically and without any further formality or consent, to
secure the Secured Obligations as assigned or novated in favour of
the Pledgee (or the new Pledgee, if any). To the extent that any
such further formality or consent on the part of Pledgor will,
nevertheless, be required, the Pledgor hereby undertakes to perform
any such formality or consent without delay upon request of the
Pledgee, who shall itself act upon the written instructions of the
Requisite Noteholders.
4. REPRESENTATIONS AND WARRANTIES
Without prejudice and in addition to the representations and
warranties of the Pledgor under the Pledgor Subsidiary Guaranty and
the other Credit Documents to
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which the Pledgor is party, the Pledgor represents and warrants to
the Pledgee as of the date hereof and undertakes during the
subsistence of this Agreement as follows:
4.1. the Trademark is duly registered in the countries and registration
systems listed in Schedule 1 and Pledgor does not own any other
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Trademarks than those listed in Schedule 1;
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4.2. in the past the Pledgor had pledged the Trademark to Citibank N.A.,
New York, in its capacity as administrative agent, and such pledge
is today released. However, it is possible that such released
pledge is still registered in certain countries and registration
systems; the Pledgor is the sole legal and beneficial owner of the
Trademark and subject to any remaining registrations of such
released pledge, the Trademark is free and clear of any Liens,
except for Permitted Liens imposed by mandatory operation of law;
this Agreement creates a valid and enforceable pledge over the
Trademark in favour of Pledgee under the laws of Switzerland;
4.3. the Pledgor has not assigned, transferred or otherwise disposed of
the benefit of the Trademark;
4.4. there are no agreements between the Pledgor and any third party
relating to the Pledge that could negatively affect the obligations
of the Pledgor or the rights of the Pledgee under this Agreement or
the enforcement of the Pledge or the proceeds of the enforcement of
the Pledge;
4.5. no third party has made, or to the Pledgor's knowledge threatened
to make, any claim against the Pledgor based on the alleged
infringement of its intellectual property right in connection with
the use of the Trademark in the ordinary course of the Pledgor's
business;
4.6. no third party has challenged, or to the Pledgor's knowledge
threatened to challenge, the validity of any of the Trademark in
any invalidity lawsuit or similar proceedings before competent
authorities;
4.7. the Pledgor is not aware of any infringement of the Trademark by
third parties;
4.8. the Pledgor is a corporation duly incorporated and validly existing
under the laws of Switzerland and is not in liquidation, with the
power to enter into this Agreement and to exercise its rights and
perform its obligations hereunder; all corporate and other actions
required to authorise the execution and performance of this
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Agreement have been duly taken; no consent of any Person is
required for the execution, delivery and performance of this
Agreement, other than those that have been obtained;
4.9. the Pledgor is not insolvent, nor subject to any insolvency
proceedings or in any other similar situation of conflicting claims
of creditors in a way, which could give these creditors reasonable
grounds for a claim against the Pledgor. No resolutions have been
taken, nor has any petition been filed, to dissolve or liquidate
the Pledgor, nor has the Pledgor been declared bankrupt nor has a
suspension of payments been granted to the Pledgor;
4.10. this Agreement does not violate any law or regulation applicable to
the Pledgor as of the date hereof, its constitutional documents or
any material contractual or other obligation binding upon it, that
would prevent it from pledging the Trademark.
5. UNDERTAKINGS
The Pledgor hereby undertakes:
(a) with the exception of the Pledge or Permitted Liens by
mandatory operation of law, not to grant, create or permit any
Lien, or otherwise transfer the Trademark or take any other
action with respect to the Trademark that could reasonably be
expected to jeopardize any rights of the Pledgee under this
Agreement, or could reasonably be expected to jeopardize the
enforcement or the value of the Pledge;
(b) to promptly inform the Pledgee of any fact or event which
could reasonably be expected to at any time to jeopardize or
affect the Plegdee's right over the Trademark or the Pledgee's
ability to enforce the Pledge;
(c) to promptly execute and deliver all instruments and documents,
and take all action that the Pledgee may reasonably request
upon the written instructions of the Requisite Noteholders in
order to register, perfect and protect the Pledge or to enable
the Pledgee to exercise and enforce its rights and remedies
under this Agreement in any country or registration system;
(d) to promptly inform the Pledgee of all infringements of the
Trademark by third parties, of all third party challenges to
the validity of the Trademark and of all third party claims
based on the alleged infringement of their intellectual
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property rights in connection with the use of the Trademark in
the ordinary course of the Pledgor's business;
(e) to do all acts and things necessary to maintain the legal
validity and prevent any deterioration of the legal standing
of the Trademark, in particular to defend the Trademark
against each and every nullity claim by third parties and to
take at its own costs legal steps against each and every
infringement of the Trademark to the extent such acts, things
or steps are reasonable in view of the value of the relevant
Trademark.
(f) to have the released pledge of the Trademark in favour of
Citibank N.A., New York, in its capacity as administrative
agent, removed without delay from all registration systems in
all countries in which the Trademark is registered.
6. DURATION AND RELEASE
6.1. This Agreement shall remain in full force and effect until the
earlier of (a) the date upon which all Secured Obligations have
been irrevocably paid and discharged in full; and (b) the date
notified by the Pledgee to the Issuer. This Agreement shall not
cease to exist if any payments made in satisfaction of the Secured
Obligations have only temporarily discharged the Secured
Obligations.
After the full and complete satisfaction of all Secured Obligations
or if so required by Swiss mandatory law, the Pledgee shall release
and cancel the security constituted by this Agreement and procure
the reassignment to the Pledgor of the property and assets assigned
to the Pledgee pursuant to this Agreement.
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
(a) is avoided or declared invalid as against the creditors of the
maker of such payment; or
(b) becomes repayable by the Pledgee to a third party; or
(c) proves not to have been effectively received by the Pledgee;
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and the Pledgee shall be entitled to enforce the Pledge as if such
release or discharge had not occurred.
6.2. This security is in addition to any existing or future collateral,
guarantee or other security held by the Pledgee.
7. ENFORCEMENT
7.1. At any time after the occurrence of a Payment Default that is
continuing, the Pledge shall become immediately enforceable and the
Pledgee shall in particular have the right, in addition to all the
rights and remedies of a secured party on default under applicable
law and subject to the Collateral Agency Agreement and to the Terms
and Conditions of Notes, to:
(a) enforce the Pledge in respect of the Trademark, in accordance
with applicable legal provisions and as set forth in this
Agreement; and
(b) apply any payments which may be received or receivable by the
Pledgee in respect of the Trademark to satisfaction of the
Secured Obligations and as provided in the Collateral Agency
Agreement; and
(c) exercise all rights and remedies it possesses, and to act
generally in relation to the Trademark in such manner as it
shall determine within the limit of the applicable law and its
rights under this Agreement.
7.2. When exercising its right to enforce the Pledge after the
occurrence of a Payment Default that is continuing, the Pledgee
shall be entitled, at its discretion,
(a) to sell the Trademark either through public auction
(offentliche Versteigerung) or by way of private sale
(Selbstverkaufsrecht), without regard to the procedures and
formalities provided for in the Swiss Federal Act Debt
Collection and Bankruptcy of 1889, as amended, and without any
notice thereof to the Pledgor other than a notice intending to
inform the Pledgor that a sale of the Trademark will take
place, this notice being sent in accordance with Clause 10.8
of this Agreement to the Pledgor no later than 10 (ten)
Business Days prior to such sale; or
(b) notwithstanding the foregoing and the provisions of Art. 41 of
the Swiss Federal Law on the Recovery of Debts and Bankruptcy
or any other
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applicable law, to institute and pursue the ordinary procedure
for recovery of debt without having first to dispose of the
Trademark or to institute statutory proceedings for the
realization thereof.
7.3. The Pledgee has the right to acquire the Trademark for itself in
any such public auction or private sale. In case of an acquisition
of the Trademark by the Pledgee in a private sale, such sale has to
be at arm's length, i.e. at the real value (the REAL VALUE
(wirklicher Wert)) of the acquired Trademark. If the Pledgor and
the Pledgee do not reach an agreement on the Real Value within 30
calendar days following the Pledgee's corresponding offer, the Real
Value shall be determined by an independent expert to be mutually
appointed by the Parties. The expert's determination of the Real
Value shall be final (Schiedsgutachten). If the parties hereto
cannot, within 60 days following the Pledgee's offer, agree on the
expert to be appointed, the independent expert shall be appointed
by the president of the "Treuhand-Kammer", Zurich, Switzerland.
7.4. In view of a realization of the Pledge in accordance with the terms
and conditions set forth above, the Pledgor, being the sole owner
and holder of the Trademark, hereby expressly declares its approval
of the assignment and transfer of the Trademark being subject to
such realization to the acquirer of such Trademark. The Pledgor
further agrees that the respective acquirer will hold the Trademark
following their assignment and transfer and Pledgor will see for it
that such acquirer will without any delay be registered as the
owner of the Trademark with the Swiss Federal Intellectual Property
Institute and/or any other relevant country and registration system
listed in Schedule 1.
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7.5. The proceeds from the realization of the Pledge shall be applied to
towards the Secured Obligations, including any costs and expenses
of the Pledgee, in accordance with the Collateral Agency Agreement,
but without prejudice to the rights of the Pledgee to recover any
shortfall from the Pledgor.
8. EXPENSES AND COSTS; DUTIES OF THE PLEDGEE
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 realization upon, any of
the Trademark, (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
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the provisions hereof, shall be borne by the Pledgor. All other
expenses and duties reasonably incurred in connection with this
Agreement, in particular with regard to the establishment and
perfection of the Pledge, its enforcement 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 it, and the same shall be part of the Secured Obligations.
The Pledgee shall not be liable for any acts or omissions with
respect to the Trademark or the enforcement or the losses arising
in connection with the exercise of any of its rights, powers and
discretions hereunder, save for liabilities and expenses arising
from the gross negligence or willful misconduct of the Pledgee. The
Pledgee shall not be under any obligation to the Pledgor to take
any steps necessary to preserve any rights in the Trademark against
any other parties but may do so at its option, and all expenses
reasonably incurred in connection therewith shall be for the
account of the Pledgor and shall be part of the Secured
Obligations. 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.
9. TAXES
The Pledgor shall pay, promptly on demand of the Pledgee all stamp,
registration, notarial and other similar Taxes or fees paid or
payable by the Pledgee in connection with any action taken or
contemplated by or on behalf of the Pledgee for perfecting,
enforcing, releasing, canceling, reassigning or resolving any doubt
concerning, or for any other purpose in relation to this Agreement,
any amendment thereto, any transfer and/or assignment of the rights
and/or obligations under the same or the security created or
intended to be created in respect of the Trademark and shall, from
time to time, indemnify the Pledgee promptly on demand against any
liabilities, costs, claims and expenses resulting from any failure
to pay by the Pledgor or any delay by any Pledgor in paying any
such Taxes or fees.
10. MISCELLANEOUS
10.1. The Pledgee may disclose and deliver a copy of the present
Agreement to any tax or other authority, if asked to do so.
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10.2. Changes to and amendments of this Agreement including this Clause
10.2 must be made in writing. No oral supplements to this Agreement
have been or will be made.
10.3. The rights of each Party under this Agreement:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights or remedies
provided by law;
(c) may be waived only in writing and specifically.
No failure or delay of a Party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
All the rights of the Pledgee hereunder shall be in addition to any
other right vested in the Pledgee and all 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 to proceed against or claim payment from any
other party, or enforce any guarantee or security before enforcing
this Pledge.
10.4. If any of the provisions of this Agreement should be or become
invalid, unenforceable or impractical in whole or in part, the
validity of the other provisions hereof shall not be affected. In
that case the invalid, unenforceable or impractical provision is
deemed to be replaced by such valid and enforceable provision or
arrangement, which corresponds as closely as possible to the
invalid, unenforceable or impractical provision and to the Parties'
economic aims pursued by and reflected in this Agreement. The same
applies in the event that this Agreement does not contain a
provision which it needs to contain in order to achieve the
economic purpose as expressed herein (Regelungslucke).
10.5. Notwithstanding any provision to the contrary contained herein, the
parties hereto agree that this Agreement is subject in all respects
to the Collateral Agency Agreement and for the avoidance of doubt,
in the event of any inconsistency, the provisions of the Collateral
Agency Agreement shall prevail.
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10.6. No modification or amendment of this Agreement shall be binding
upon any party hereto unless such modification or amendment shall
be in writing and signed a duly authorized officer of the Pledgee
and the Pledgor.
10.7. No failure or delay by a party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof
nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
All the rights of the Pledgee hereunder shall be in addition to any
other right vested in the Pledgee and all 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 to proceed against or claim payment from any
other party, or enforce any guarantee or security before enforcing
the Pledge.
10.8. All communications to be made hereunder shall be made in writing to
the following addresses:
If made to the Pledgor: Solutia Europe SA/NV
Boondaelse Steenweg 6
B-1050 Brussels
Belgium
Parc Scientifique-Fleming
rue Laid Bumiat 3
B-1348 Louvain-la-Neuve
Belgium
Att.: For the Attention of
Legal Department
Fax: +32 (0)1 048 1224
If made to the Pledgee: KBC Bank NV
Havenlaan 12
B-1080 Brussels
Belgium
Att.: Mr Dirk De Bleser
Fax: +32 (0)2 429 4920
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10.9. Any communication or document made or delivered by one Person to
another under or in connection with this Agreement shall 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 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 10.8, if
addressed to that department or officer.
10.10. This Agreement is executed in English only, and no translation
thereof shall be binding on the parties hereto or consulted in
order to interpret this Agreement. Without prejudice to any other
procedural rule applicable to any dispute, any notice or other
communication under or in connection with this Agreement shall be
in the English language or, if in any other language, accompanied
by a translation into English. In the event of any conflict between
the English text and the text in any other language, the English
text shall prevail except that where a German translation of a
legal term appears in such text, the German translation shall
prevail.
10.11. This Agreement shall become effective on 11 February 2004.
11. GOVERNING LAW
This Agreement shall be governed by, and construed in accordance
with, the substantive laws of Switzerland.
12. JURISDICTION
Any and all disputes arising out of or in connection with this
Agreement including but not limited to matters of validity,
conclusion, binding effect, interpretation, construction,
performance or non-performance and remedies shall be subject to the
non-exclusive jurisdiction of the Commercial Court (Handelsgericht)
of the Canton of Zurich, Switzerland, venue being Zurich 1, subject
to review as provided for by law. If there is no ordinary place of
foreclosure in Switzerland according to the Federal Statute on Debt
Collection and Bankruptcy (SchKG), the place of foreclosure
(Betreibungsort) shall be Zurich 1, which shall be the place of
performance for obligations arising under this Agreement.
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13. 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. 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. The expressions Pledgee 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.
15. ASSIGNMENT
The Pledgee shall be entitled to assign or otherwise transfer any
and all of its rights and duties under this Agreement to third
parties. The Pledgor may not assign or transfer any of its rights
or obligations under this Agreement, save prior agreement in
writing of the Pledgee.
16. 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.
17. RESPONSIBILITY OF THE PLEDGEE
17.1. The Pledgee shall not be responsible to any Noteholder for:
(a) the adequacy, accuracy or completeness of any recitals,
statements, representations or warranties contained in any
Subsidiary Guaranty or Collateral Document;
(b) the adequacy, accuracy or completeness of any statement or
information (whether written or oral) made in or supplied in
connection with any Subsidiary Guaranty or Collateral
Document; or
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(c) the legality, validity, effectiveness, adequacy or
enforceability of any Subsidiary Guaranty or Collateral
Document (including but not limited to validity of the
Floating Charge Agreement (overeenkomst pand op
handelszaak/contrat de gage sur fonds de commerce) between the
Issuer and the Pledgee).
17.2. Each Noteholder is responsible to make, and to continue to make,
its own independent appraisal of all risks arising under or in
connection with the Notes, the Subsidiary Guaranties and the
Collateral Documents (including but not limited to the financial
condition and affairs of the Issuer and the Subsidiary Guarantors,
the nature and extent of any recourse against any party or its
assets or the legality, validity, effectiveness, adequacy or
enforceability of any Subsidiary Guaranty or Collateral Document).
11 February 2004
Executed by:
CARBOGEN AG, AS PLEDGOR
/s/ Kristel Deroover
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Attorney
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KBC BANK NV, AS PLEDGEE
/s/ Dirk De Bleser
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Head Operations & Accounting
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