Exhibit 99.3
EXECUTION COPY
GLOBAL ASSIGNMENT AGREEMENT
DATED 4TH MARCH, 2004
BETWEEN
CP FILMS VERTRIEBS GMBH
AS ASSIGNOR
AND
KBC BANK NV
AS ASSIGNEE
ALLEN & OVERY
FRANKFURT
CONTENTS
CLAUSE PAGE
1. Interpretation.....................................................2
2. Assignment.........................................................3
3. Security Purpose...................................................4
4. List of Claims.....................................................4
5. The Assignor Rights................................................5
6. Disclosure and Notification........................................5
7. Assignment of Claims against Conditional Vendors...................6
8. Enforcement and Collection.........................................7
9. Right of Inspection................................................7
10. Bookkeeping and Data-Processing....................................7
11. Maintenance of Liable Capital......................................7
12. Undertakings.......................................................9
13. Representations and Warranties....................................10
14. Indemnity.........................................................10
15. Duration and Independence.........................................10
16. Costs and Expenses................................................11
17. Miscellaneous.....................................................11
18. Assignment........................................................11
19. Severability......................................................12
20. Release of Security...............................................12
21. Notices...........................................................12
22. Governing Law.....................................................12
23. Jurisdiction......................................................13
Signatories................................................................14
THIS GLOBAL ASSIGNMENT AGREEMENT (the AGREEMENT) is made on 4th March, 2004
BETWEEN:
(1) CP FILMS VERTRIEBS GMBH, a limited liability company (Gesellschaft
mit beschrankter Haftung) organised under the laws of Germany,
having its corporate seat in Bielefeld, Germany, which is
registered in the Commercial Register (Handelsregister) at the
Local Court (Amtsgericht) of Bielefeld under registration number
HRB 33407
(the ASSIGNOR)
and
(2) KBC BANK NV a Belgian bank with registered office at Havenlaan 2,
B-1080 Brussels, Belgium, and registered at the Crossroads Bank for
Enterprises under enterprise number 0462.920.226
(the ASSIGNEE).
WHEREAS:
(A) Solutia Europe SA/NV (the ISSUER) and the holders of the Notes 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 (as defined below) and as
amended, modified or supplemented from time to time, the NOTES)
pursuant to an Agreement of Understanding and Restructuring dated
30th 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 has entered into the Fiscal Agency Agreement dated 11th
February, 2004 among the Issuer, 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 holders of the Notes 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 Assignor guarantees the prompt
payment and performance when due of all obligations of the Issuer
under the Credit Documents (as defined below) and assigns the
Claims (as defined below) to the Assignee to secure its obligations
to the Assignee as provided herein and undertakes the obligations
contemplated by this Agreement.
(C) 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 Assignor agrees to assign the
Claims (as defined below) in favour of the Assignee under the
following terms.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
AGREEMENT OF UNDERSTANDING has the meaning given to that
term under (A) of the preamble.
BUSINESS DAY means a day (other than a Saturday or a
Sunday) on which banks are open for general business in Brussels
and Frankfurt am Main.
CLAIMS means (i) all present and future monetary receivables and
claims the Assignor holds (Forderungsinhaber) against all clients,
purchasers or suppliers or any of them (Forderungen aus
Warenlieferungen und Leistungen) whether resulting from its present
or future business or from any other cause at law (the TRADE
RECEIVABLES), (ii) all present and future monetary receivables and
claims the Assignor (Forderungsinhaber) holds against any member of
the Group on account of any nature whatsoever (the INTRA-GROUP
RECEIVABLES), (iii) all present and future monetary receivables and
claims the Assignor holds (Forderungsinhaber) against any Person on
account of loans, advances or other financial credits made or
granted by the Assignor, or on account of any recourse against any
Person by reason of a guaranty or security given by the Assignor
for such Person's liabilities (the OTHER RECEIVABLES), and (iv) all
present and future rights and claims to payment the Assignor holds
against any insurance company on account of any insurance policy
(other than any life insurance, health insurance, third party
liability insurance, group insurance, employees' pension
insurance), whether as insurance indemnities, refunds of premium or
otherwise (the INSURANCE CLAIMS). To the extent that such Claims
are in existence or outstanding at the time this Agreement comes
into force, such Claims are referred to as the EXISTING CLAIMS, and
if such Claims will only come into existence in the future they are
referred to as the FUTURE CLAIMS.
COLLATERAL AGENCY AGREEMENT means the collateral agency agreement
dated 11th February, 2004 among the Issuer, Amcis AG, Carbogen AG,
certain holders of the Notes and the Assignee, as amended, modified
or supplemented from time to time.
CREDIT DOCUMENTS means the Agreement of Understanding, the Fiscal
Agency Agreement, the Collateral Agency Agreement, the Notes
(including without limitation the Terms and Conditions of Notes),
the Subsidiary Guaranties, the Collateral Documents and any other
agreement, instrument, and other document executed and delivered
pursuant hereto or thereto or otherwise evidencing or securing any
Note or any other obligation of the Assignor, as amended, modified
or supplemented from time to time.
DEBTOR means each debtor of a Claim.
EURO, euro, or EUR means the lawful currency of the Participating
Member States.
EVENT OF DEFAULT has the meaning given to such term in the Terms
and Conditions of Notes.
FISCAL AGENCY AGREEMENT has the meaning given to that term under
(A) of the preamble.
GERMAN SUBSIDIARY GUARANTY means the guaranty made by the Assignor
in favour of the Assignee dated on or about the date of this
Agreement.
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GERMANY means the Federal Republic of Germany.
GROUP means Solutia Inc. and its Subsidiaries.
ISSUER has the meaning given to that term under (A) of the
preamble.
NOTES has the meaning given to such term under (A) of the Preamble.
PARTICIPATING MEMBER STATE means a member state of the European
Union that adopts or has adopted the euro as its lawful currency
under the legislation of the European Union pertaining to the
Economic and Monetary Union.
PAYMENT DEFAULT means the default of the Assignor to pay to the
Assignee any amounts owed by the Assignor to the Assignee under the
German Subsidiary Guaranty and any other Credit Document to which
it is party when due, provided that the enforcement of the German
Subsidiary Guaranty or the respective Credit Document is not
excluded pursuant to the maintenance of liable capital provisions
of the German Subsidiary Guaranty or the respective Credit
Document.
PARTY means a party to this Agreement.
SECURED CLAIMS means all present and future rights and claims
(Anspruche) (whether actual or contingent and whether held jointly
or severally or in any other capacity whatsoever) of the Assignee
against the Assignor which may arise under, out of, or in
connection with the Collateral Agency Agreement, the German
Subsidiary Guaranty or any other Credit Document to which the
Assignor is party.
SECURITY means any and all security granted by the Issuer or any
third party to the Assignee with a view to securing the Secured
Claims.
SUBSIDIARIES means an entity of which a person has direct or
indirect control or owns directly or indirectly more than 50% of
the voting capital or similar right of ownership and control for
this purpose means the power to direct the management and the
policies of the entity whether through the ownership of voting
capital, by contract or otherwise.
TERMS AND CONDITIONS OF NOTES means the terms and conditions of the
notes as set out in Schedule 1 of the Fiscal Agency Agreement as
amended, modified or supplemented from time to time.
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.
1.5 Unless 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.
2. ASSIGNMENT
(a) The Assignor hereby assigns all of the Claims to the Assignee (the
ASSIGNMENT).
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(b) The Assignee accepts such Assignment.
(c) The Existing Claims shall pass over to the Assignee on execution of
this Agreement, and any Future Claims shall pass over to the
Assignee on the date such Future Claims arise.
(d) Together with the Claims all security interest, collateral and any
other rights pertaining thereto are transferred and assigned to the
Assignee.
(e) In case any kind of a current account relationship (unechtes oder
echtes Kontokorrentverhaltnis) exists at present or comes into
existence in the future between the Assignor and Debtors, the
Assignor assigns to the Assignee, and the Assignee accepts such
assignment, its rights for termination of the current account
relationship, for fixing an actual balance (Saldofeststellung) and
all present and future claims as a result of fixing a balance.
(f) Notwithstanding the provisions of Clause 2 (c) above, the security
interest granted hereunder shall become effective at the time of
the execution of this Agreement.
(g) Insofar as additional declarations or actions are necessary for the
perfection of the security interest to be granted hereunder or the
rights mentioned in Clause 2 (d) and (e) above, the Assignor shall,
at the Assignee's request, make such declarations or undertake such
actions.
3. SECURITY PURPOSE
The Claims shall serve as collateral in order to secure the prompt
and complete payment and discharge of any and all Secured Claims.
4. LIST OF CLAIMS
(a) The Assignor undertakes to promptly (but in any event within 10
Business Days) deliver to the Assignee upon the occurrence of a
Payment Default (or at such other time as the Assignee may
reasonably request in order to protect its legitimate interests) an
up-to-date, accurate and complete list of those Claims which were
still outstanding at the end of the previous month. Unless
otherwise agreed, the list shall show the names and telephone
numbers of the Debtors as well as the outstanding amounts and the
invoice dates and invoice reference numbers. An up-to-date,
accurate and complete list of all Claims separate according to the
nature of the Claims (Trade Receivables, Intra-Group Receivables,
Other Receivables and Insurance Claims) as per the date of this
Agreement is attached hereto as Schedule 1 Part 1, Part 2 and Part 3.
(b) The Assignor shall from time to time promptly upon request (but in
any event within 10 Business Days) provide the Assignee with the
following data:
(i) a copy of all relevant contractual documentation in respect
of any Claims provided that unless a Payment Default has
occurred and is continuing such documentation is not subject
to a confidentiality undertaking to which the Assignor
is bound;
(ii) all relevant details of the amounts currently owing under any
Claim, provided that unless a Payment Default has occurred
and is continuing such information is not subject to a
confidentiality undertaking to which the Assignor is bound;
(iii) the amounts collected under any Claim over the last twelve
months; and
(iv) such other data and information in relation to the Claims
as from time to time may be requested by the Assignee,
provided that unless a Payment Default has occurred and
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is continuing such data and information are not subject
to a confidentiality undertaking to which the Assignor
is bound.
(c) The Assignor shall have the right to deliver the list of Claims on
a readable hard disk compatible with usual business software. The
Assignee will contact the Assignor from time to time with a view to
agreeing the necessary details.
(d) For the avoidance of doubt, the Assignee shall also be entitled to
any and all Claims if for any reason whatsoever such Claims are
not, or are incompletely contained in the list presented to the
Assignee.
(e) If the Assignor employs a third party for its bookkeeping and/or
data-processing, the Assignor hereby authorises the Assignee to
obtain the lists of Claims directly from such third party at the
Assignor's expense and hereby instructs the third party to provide
the Assignee with the list in accordance with the terms and
conditions of this Agreement.
5. THE ASSIGNOR RIGHTS
The Assignor shall have the right to collect and recover the Claims
and to take all measures and enter into all agreements with the
respective Debtors in the ordinary course of business provided that
the Assignor shall not be entitled to collect any amount under any
Insurance Claim in excess of EUR 1,000,000. The Assignor may in
particular grant reasonable discounts or indulgence to Debtors
and/or enter into settlement agreements. The Assignor shall in
doing so act with the care of an orderly acting merchant (Sorgfalt
eines ordentlichen Kaufmannes). The Assignee may revoke the
aforementioned right (i) at any time after the occurrence of a
Payment Default that is continuing, (ii) after the Assignee has
made a claim under the German Subsidiary Guaranty which the
Assignor has not paid when due, if (x) the Assignor breaches any of
the undertakings set out in Clause 12 hereof or (y) the Assignor
fails to deliver on due time any lists of Claims according to
Clause 4 (a) and (b) hereof.
6. DISCLOSURE AND NOTIFICATION
(a) For the purpose of disclosing the assignment constituted by
this Agreement, the Assignor shall notify, without delay and in any
event no later than five (5) Business Days following the date
hereof and in form of Schedule 2, the Debtors, if any, listed in
Schedule 1 Part 1 against whom it currently holds Intra-Group
Receivables of the fact that such receivables owing from them have
been assigned pursuant to this Agreement, and the Assignor shall
use its best efforts to deliver to the Assignee such Debtors'
signed acknowledgements no later than ten (10) Business Days
following the date hereof. With respect to each Intra-Group
Receivable arising from Debtors that are not listed in Schedule 1
Part 1 of this Agreement (as supplemented from time to time) that
the Assignor acquires after the date hereof, the Assignor shall
notify, without delay and in any event no later than five (5)
Business Days following the date of such acquisition, the debtors
and counterparties against whom it holds such Intra-Group
Receivables of the fact that such Intra-Group Receivables owing
from them have been assigned to the Assignee pursuant to this
Agreement, and the Assignor shall use its best efforts to deliver
to the Assignee such debtors' and counterparties' signed
acknowledgements thereto no later than ten (10) Business Days
following the date of such acquisition. Each such notification
shall be substantially in the form of Schedule 2 to this Agreement.
(b) Upon the occurrence of a Payment Default that is continuing, the
Assignor shall immediately notify in the form of Schedule 3 the
Debtors against whom it holds Trade Receivables and Other
Receivables that such receivables owing from them have been
assigned to the Assignee pursuant to this Agreement.
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(c) The Assignor shall notify, without delay and in any event no
later than ten (10) Business Days following the date hereof and in
form of Schedule 4 (in the German language as the case may be), the
counterparties, if any, to insurance contracts listed in Schedule 1
Part 2 of the fact that such receivables owing from them have been
assigned pursuant to this Agreement, and the Assignor shall use its
best efforts to deliver to the Assignee such counterparties' signed
acknowledgements, no later than twenty (20) Business Days following
the date hereof. With respect to any Insurance Claims owed or to be
owed under insurance contracts other than those listed in Schedule
1 Part 2 to this Agreement (as supplemented from time to time) that
the Assignor enters into after the date hereof, the Assignor shall
notify, without delay and in any event no later than ten (10)
Business Days following the date of such entering into such
insurance contracts, the counterparties to such insurance contracts
of the fact that such Insurance Claims owing or to be owed from
them have been assigned to the Assignee pursuant to this Agreement,
and the Assignor shall use its best efforts to deliver to the
Assignee such counterparties' signed acknowledgements no later than
twenty (20) Business Days following the date of entering into such
insurance contracts.
(d) The Assignor shall provide the Assignee without delay with a copy
of any notification given pursuant to this Clause 6, together with
the adequate evidence of such notification having been sent and
received.
(e) The Assignee may give any notice required to be given by the
Assignor pursuant to this Clause 6 if the Assignor has not given
such notice within five (5) or ten (10) Business Days, as the case
may be, after the Assignor is required to do so, or at any time
following the occurrence and during the continuance of a Payment
Default. For this purpose, the Assignor authorises the Assignee to
notify each and any Debtor accordingly.
(f) The Assignor undertakes to forward to the Assignee at its request
notification letters executed in blank substantially in the form
attached as Schedule 2, 3 and 4 for the purpose of notifying the
Debtor(s) of the assignment of the respective Claims. The Assignor
hereby authorises the Assignee to copy blank notification
certificates signed by the Assignor.
7. ASSIGNMENT OF CLAIMS AGAINST CONDITIONAL VENDORS
(a) If a Claim is assigned to the Assignee which any supplier of the
Assignor can at present or in future assert by reason of an
extended retention of title (verlangerter Eigentumsvorbehalt), the
assignment of such Claim shall only become effective with the
discharge of such extended retention of title. As long as the
supplier is only partly entitled to the Claim the assignment of
such Claim to the Assignee hereunder shall be limited to the part
of the Claim to which the Assignor is entitled. The other part of
the Claim will be transferred to the Assignee at such time as that
part is no longer affected by any extended retention of title.
(b) The Assignor hereby assigns to the Assignee all its present and
future rights to reassignment of the Claims assigned to a supplier
by reason of an extended retention of title as well as any present
and future claims to the transfer of all present and future
proceeds paid out to the supplier, together with all rights
pertaining thereto. The same applies to any possible inchoate right
(Anwartschaftsrecht) with respect to the assignment of any Claims
which are subject to a condition subsequent (auflosende Bedingung).
The Assignor accepts such assignments.
(c) Upon the occurrence of a Payment Default the Assignee is entitled
to discharge the extended retention of title by itself satisfying
the supplier.
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8. ENFORCEMENT AND COLLECTION
(a) The Assignee is entitled to realise the Claims immediately upon the
occurrence of a Payment Default which is continuing and has not
been remedied if and to the extent the Assignor has not satisfied a
Secured Claim when due and payable.
(b) The Assignee may realise any and all of the Claims to the extent
necessary to satisfy any outstanding Secured Claims by collecting
all or part of the Claims.
(c) To the extent the Assignee is entitled to collect the Claims, it
may request that all documents relating to the Claims be handed
over to the Assignee and the Assignor hereby agrees to comply
promptly with any such request. If no Payment Default is
continuing, the Assignee's right to collect the Claims shall cease
and the Assignee shall pay over to the Assignor all moneys received
in connection with such collection and retained by it during the
continuance of the Payment Default (such payments being inclusive
of daily interest) save to the extent any such moneys have been
applied in payment of any of the Secured Claims.
(d) If and to the extent the Assignee collects any Claims pursuant to
this Clause 8 hereof, it may take all measures and enter into all
agreements with such Debtors which it considers to be expedient. In
particular, the Assignee may grant discounts or indulgence to
Debtors and/or enter into settlement agreements.
(e) Any enforcement proceeds shall be applied in accordance with Clause
4.1 of the Collateral Agency Agreement.
9. RIGHT OF INSPECTION
The Assignor shall allow the Assignee or any representative of its
choice acting reasonably to inspect at any time during normal
business hours its records, or to have them inspected by a duly
authorised representative, for the purpose of evaluating,
enforcing, inspecting and checking the Claims.
10. BOOKKEEPING AND DATA-PROCESSING
(a) If the Claims have been stored in an electronic data-processing
system, the Assignor shall allow the Assignee access to the
computer, including the peripheral equipment and all data
concerning the Claims. Moreover, software operators shall be made
available insofar as required, and any assistance required shall be
provided to the Assignee. If a third party handles the electronic
processing of data, the Assignor hereby assigns to the Assignee all
its claims to obtain these services, and hereby instructs such
third party to handle the processing of data for the Assignee upon
its instructions as it did for the Assignor. The Assignee hereby
accepts such assignment.
(b) If, and to the extent, documents required for the evaluation or
realisation of the assigned Claims have been delivered by the
Assignor to a third party (especially to an accountant or tax
advisor) the Assignor hereby assigns to the Assignee its claims
against such third party for providing information and for
delivering such documents and hereby authorises the third party to
provide the Assignee with such information and documents required
to evaluate and realise the assigned Claims. The Assignee accepts
such assignments.
11. MAINTENANCE OF LIABLE CAPITAL
(a) The enforcement of this Agreement shall be, at the date hereof and
at any time hereafter, limited to an amount equal to the net assets
of the Assignor, which are calculated as the
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Assignor's total assets (the calculation of which shall take into
account the captions reflected in Section 266 (2) A, B and C
of the German Commercial Code (Handelsgesetzbuch)) less its reserves
for own shares (Section 266 (3) A III. 2. of the German Commercial
Code) less its liabilities (the calculation of which shall take into
account the captions reflected in Section 266 (3) B, C and D of the
German Commercial Code) less its registered share capital
(Stammkapital) (the NET ASSETS).
(b) For the purposes of calculating the Net Assets the balance sheet
shall be adjusted in a way that (i) any amounts which the Assignor
has received from funds from the issuance of the Notes which have
been on-lent by the Issuer to the Assignor and are still
outstanding at the time of the enforcement of this Agreement shall
be disregarded or (ii) the amount of any increase of the Assignor's
registered share capital out of retained earnings (Kapitalerhohung
aus Gesellschaftsmitteln) after the date of this Agreement that has
been effected without the prior written consent of the Assignee
shall be deducted from the Assignor's registered share capital.
(c) Furthermore, the Assignor shall, in a situation where
(i) it does not have sufficient assets to maintain its
registered share capital; and
(ii) the Assignee would (but for this Clause) be entitled and
is seeking to enforce the security granted under this
Agreement,
realise any and all of its assets that are shown in the
balance sheet with a book value (Buchwert) which is significantly
lower than the market value of such assets, provided such asset is
not necessary for the Assignor's business (betriebsnotwendig).
(d) For the purpose of the calculation of the Net Assets and thus the
enforceable amount, the Assignor will deliver within 30 Business
Days after the notification by the Assignee of an Payment Default,
to the Assignee an up to date balance sheet drawn-up by its
auditors or any other reputable firm of auditors together with a
determination of the Net Assets by the respective auditors. The
balance sheet and determination of Net Assets shall be prepared in
accordance with accounting principles pursuant to the German
Commercial Code (Handelsgesetzbuch) and be based on the same
principles that were applied when establishing the previous year's
balance sheet.
(e) Should the Assignor fail to deliver such balance sheet and/or
determination of the Net Assets within the 30 Business Day period
referred to above or if the Assignor has generally ceased to make
payments or upon filing of an application for insolvency
proceedings by the Assignor, the Assignee shall be entitled to
enforce security granted under this Agreement, without the
enforcement limitations provided for above applying at the time of
such enforcement, but is obliged to retransfer proceeds from such
enforcement to the extent that the Assignor demonstrates in
reasonable detail that the enforcement of this Agreement violated
the rules on preservation of the stated share capital
under Sections 30, 31 GmbH-Act as set out in paragraph (a)-(c) above
by resulting or enhancinG negative assets (Unterbilanz) of the
Assignor.
(f) This Agreement shall further not be enforced to the extent that the
Assignor demonstrates in reasonable detail that such enforcement
would lead to a breach of the Gebot der Rucksichtnahme auf die
Eigenbelange der Gesellschaft (duty of care owing by the relevant
shareholders vis-a-vis the respective company) and of the Verbot
des existenzvernichtenden Eingriffs (prohibition of
insolvency-causing intervention), as developed by the recent
jurisdiction (in particular BGH II ZR 178/99 "Bremer Vulkan", BGH
ZR 196/00 and BGH II ZR 300/00 "KBV"), of the Federal Supreme Court
(Bundesgerichtshof), caused for example, as far as this would be
within the scope of the cited court rulings, if the entering into
this Agreement and its enforcement results in the illiquidity
(Zahlungsunfahigkeit) of the
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Assignor. The Assignee shall be obliged to retransfer proceeds
from such enforcement to the extent that the Assignor demonstrates in
reasonable detail that the enforcement of this Agreement violated
the rules of the cited Federal Supreme Court rulings. Otherwise,
any claim for damages to the Assignee (excluding, for the avoidance
of doubt, any claim relating to unjust enrichment) by the Assignor,
any shareholders of the Assignor or its managing directors shall be
excluded.
(g) Notwithstanding paragraph (a)-(f) above the Assignee shall be
entitled to immediate enforcement of the security granted under
this Agreement, if and to the extent the Assignee has already made
a claim under the German Subsidiary Guaranty and the enforcement of
the German Subsidiary Guaranty was not excluded pursuant to its
maintenance of capital rules, but is obliged to retransfer proceeds
from such enforcement of the security granted under this Agreement
in accordance with paragraphs (e) and (f) above.
12. UNDERTAKINGS
The Assignor undertakes:
(a) to inform the Assignee without undue delay (unverzuglich)
of any subsequent material changes in the value of any of
the Claims resulting from any complaints, price discounts,
set off or other reasons, after becoming aware of such
changes. The same applies if the maturity of the Claims
materially changes or the Assignor becomes aware of
circumstances which impair the ability of Debtors to make
payment;
(b) to provide the Assignee promptly (unverzuglich) at its
reasonable request all information and documents which are
necessary for asserting the Claims;
(c) to inform the Assignee promptly of any attachments
(Pfandungen) regarding any and all of the Claims or any
other measures which may impair or jeopardise the
Assignee's rights relating to the Claims. In the event of
an attachment, the Assignor undertakes to forward to the
Assignee without undue delay a copy of the attachment
order (Pfandungsbeschluss), the garnishee order
(Uberweisungsbeschluss) and all other documents
necessary for a defence against the attachment. The
Assignor shall inform the attaching creditor promptly
about the Assignee's security interests; and
(d) to notify the Assignee promptly of any event or
circumstance which might materially adversely affect the
validity or enforceability of this Agreement;
(e) to promptly execute such further instruments and documents
and do such other acts as are necessary in order to fully
effect the purposes of this Agreement as the Assignee may
from time to time reasonably request;
(f) not to assign or sell any of the Claims to any third party
without the Assignee's prior written consent; and
(g) without delay and in any event no later than five (5)
Business Days following the date of acquisition of an
Intra-Group Receivable arising from a debtor or
counterparty that is not listed on Schedule 1 Part 1 (as
supplemented from time to time), the Assignor shall
deliver a written notice to the Assignee, setting forth
the details listed in Schedule 1 Part 1 (it being
understood that such written notice shall be deemed to
supplement Schedule 1 Part 1 annexed hereto for all
purposes of this Agreement); and without delay and in any
event no later than five (5) Business Days following the
date that the Assignor enters into an insurance contract
with a Person that is not listed on
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Schedule 1 Part 2 (as supplemented from time to time) and
that is subject to Insurance Claims, the Assignor shall
deliver a written notice to the Assignee, setting forth the
details listed in Schedule 1 Part 2 (it being understood that
such written notice shall be deemed to supplement Schedule 1
Part 2 annexed hereto for all purposes of this Agreement).
13. REPRESENTATIONS AND WARRANTIES
Without prejudice and in addition to the representations and
warranties of the Assignor under the Subsidiary Guaranty and the
other Credit Documents to which the Assignor is party, the Assignor
represents and warrants to the Assignee as of the date hereof that:
(a) it is validly existing and neither insolvent, nor subject
to any insolvency proceedings nor in a financial crisis
(Krise);
(b) it is the holder (Forderungsinhaber) of the Existing
Claims and the rights assigned hereunder;
(c) the specification of the Existing Claims set out in
Schedule 1 Part 1, Part 2 and Part 3 is a complete and
accurate specification of all Existing Claims;
(d) all necessary corporate action has been taken to authorise
the entry into this Agreement; and
(e) to the best of its knowledge and in accordance with the
principles of prudent businessmen (Sorgfalt eines
ordentlichen Kaufmanns), it has the right to freely
dispose (verfugen) of the Existing Claims and rights and
such disposition does not violate the rights of any third
party or any regulatory orders.
14. INDEMNITY
14.1 LIABILITY FOR DAMAGES
The Assignee shall not be liable for any loss or damage suffered by
the Assignor save in respect of such loss or damage which is
suffered as a result of the gross negligence or wilful misconduct
of the Assignee.
14.2 INDEMNIFICATION
The Assignor will indemnify the Assignee against any losses,
actions, claims, expenses, demands and liabilities which may be
reasonably incurred by or made against the Assignee for anything
done or omitted in the exercise or purported exercise of the powers
contained herein and occasioned by any breach of the Assignor of
any of its obligations or undertakings herein contained other than
to the extent that such losses, actions, claims, expenses, demands
and liabilities are incurred or made against the Assignee as a
result of the gross negligence or wilful misconduct of the
Assignee.
15. DURATION AND INDEPENDENCE
15.1 DURATION
This Agreement shall remain in full force and effect until the
earlier of (a) the date upon which all Secured Claims have been
irrevocably paid and discharged in full; and (b) the date notified
by the Assignee to the Assignor. This Agreement shall not cease to
exist if any
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payments made in satisfaction of the Secured Claims have only
temporarily discharged the Secured Claims.
15.2 CONTINUING SECURITY
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.
15.3 INDEPENDENCE
This Agreement is independent from any other Security. No other
such Security shall prejudice, be prejudiced by, or be merged in
any way with, this Agreement.
16. COSTS AND EXPENSES
The Assignor shall on demand pay (or procure payment) to the
Assignee all expenses that the Assignee 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 Claims, (iii) the exercise or
enforcement of any of the rights of the Assignee hereunder, or (iv)
the failure by the Assignor to perform or observe any of the
provisions hereof. The Assignor shall on demand pay (or procure
payment) to the Assignee the amount of all other costs, charges,
fees and expenses (including fees for legal advisers) reasonably
and properly incurred by the Assignee in connection with the
preparation, execution, performance and amendment of this
Agreement, or any waiver in relation thereto, together in each case
with any applicable value added tax or other taxes.
17. MISCELLANEOUS
17.1 AMENDMENTS
Changes to and amendments of this Agreement including this Clause
must be made in writing.
17.2 WAIVERS AND REMEDIES CUMULATIVE
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.
Delay in exercising, partial exercising or non-exercising of any
rights is not a waiver of that right.
18. ASSIGNMENT
The Assignor may not assign or transfer any of its rights under
this Agreement, save prior agreement in writing of the Assignee.
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19. SEVERABILITY
(a) If a term of this Agreement is or becomes illegal, invalid or
unenforceable, that will not affect the legality, validity or
enforceability of any other terms of this Agreement.
(b) The illegal, invalid or unenforceable term shall be deemed to be
replaced by that term which best meets the intent of the replaced
term.
20. RELEASE OF SECURITY
After the full and complete satisfaction of all Secured Claims or
if so required by German mandatory law, the Assignee shall reassign
to the Assignor the Claims and surrender the excess proceeds, if
any, resulting from any realisation of the Claims. The Assignee
will, however, transfer any claims to a third party to the extent
he is obliged to do so.
21. NOTICES
21.1 NOTICES
Any notice or other communication under or in connection with this
Agreement to the Assignor or the Assignee shall be in writing and
shall be delivered personally, by post or facsimile and shall be
sent to the address or facsimile number of the party, and for the
attention of the individual, as set forth in Schedule 5 or such
other address or facsimile number as is notified by that party for
this purpose to the Assignee from time to time. Any notice under
this Agreement shall also be copied to the Issuer.
21.2 LANGUAGE
Unless otherwise agreed, 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 of
this Agreement, any notice or other communication 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.
21.3 DELIVERY
Any communication made by one Party to another under or in
connection with this Agreement will only be effective:
(a) if by way of fax, when received in legible form; or
(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;
and, if a particular department or officer is specified as part of
its address details, if addressed to that department or officer.
22. GOVERNING LAW
This Agreement shall be governed by the laws of Germany.
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23. JURISDICTION
(a) The courts of Frankfurt am Main, Germany, have exclusive
jurisdiction to settle any dispute in connection with this
Agreement.
(b) The Assignee may also take legal action against the Assignor before
any other competent court of law having jurisdiction over the
Assignor.
This Agreement has been entered into on the date stated at the beginning of
this Agreement and has been executed in three originals.
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SIGNATORIES
CP FILMS VERTRIEBS GMBH
By: /s/ Kristel Deroover
--------------------
Kristel Deroover
Attorney
KBC BANK NV
By: /s/ Dirk De Bleser
------------------
Dirk De Bleser
Head of Operations & Accounting
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