EXECUTION COPY
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ACCOUNT PLEDGE AGREEMENT
between
TRIVENTURA AG
as pledgor
and
DEUTSCHE BANK AG
as pledgee
regarding
the pledge of a bank account with Deutsche Bank AG
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CONTENTS
CLAUSE PAGE
RECITALS.......................................................................3
1. DEFINITIONS AND INTERPRETATION............................................3
2. PLEDGE AND PLEDGORS' OBLIGATIONS..........................................5
3. ADMINISTRATION OF PLEDGED ASSETS..........................................6
4. FURTHER UNDERTAKINGS OF THE PLEDGOR.......................................7
5. APPLICATION OF PROCEEDS...................................................7
6. ENFORCEMENT...............................................................8
7. CONTINUING SECURITY; RELEASE OF THE PLEDGED ASSETS........................8
8. REPRESENTATIONS AND WARRANTIES............................................9
9. FURTHER ASSURANCES OF THE PLEDGOR........................................10
10. NO ASSIGNMENT OR TRANSFER................................................10
11. EFFECTIVENESS OF COLLATERAL; DISCHARGE OF SECURED DEBT...................10
12. POWER OF ATTORNEY AND NOTICES............................................11
13. EXCULPATION..............................................................11
14. EXPENSES AND TAXES.......................................................11
15. CURRENCY CONVERSION......................................................11
16. CONSENT BY BANK..........................................................12
17. SEVERABILITY.............................................................12
18. WAIVERS AND MODIFICATIONS................................................12
19. COUNTERPARTS.............................................................12
20. LAW AND JURISDICTION.....................................................12
SIGNATORIES...................................................................15
ANNEXES
Annex 1.0: Details of Pledgor's Account with the Bank.........................14
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THIS AGREEMENT (the "Agreement") is made BETWEEN:
1. Triventura AG, c/o Schatti + Partner AG, Xxxxxxxxxxxx 00x, 0000 Xxxx, as
pledgor;
(the "Pledgor" or "Triventura" as the case may be)
2. Deutsche Bank AG, Xxxxxxxxxxxx 00, 00000 Xxxxxxxxx xx Xxxx as pledgee ("DB"
or the "Pledgee", as the case may be).
RECITALS
(A) Triventura and DB have entered into a Bilateral Equity Linked Contract in
respect of Shares (as defined below) dated as of 8 November 2006 (the
"Contract").
(B) The Pledgor has agreed to secure Triventura's obligations under the Finance
Documents (as defined below) by way of pledge of the Account and the assets
deposited therein with the Bank (as defined below) in favour of the
Pledgee.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
(a) "Account" means the bank account opened by the Pledgor with the
Pledgee as further specified in Annex 1.0.
(b) "Astra" means Adecco S.A., Cheserex (CH).
(c) "Bank" means the Pledgee.
(d) "Calculation Agent" has the meaning ascribed to it in the Contract.
(e) "Call Option" means the call option granted to the Pledgee under
Schedule 1 Condition 2 of the Contract.
(f) "Collateral Rights" means all rights, powers and remedies of the
Pledgee provided by this Agreement or by law.
(g) "Custody Agreement" means the custody agreement dated on or about the
day hereof between the Pledgor and DB.
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(h) "Dividends" means all dividend payments relating to the Shares
resolved by a shareholders' meeting of Astra and effected by Astra
whether in cash or in the form of additional shares in Astra (stock
dividend) or in any other form.
(i) "Enforcement" means the foreclosure or any other kind of realisation
of the Pledged Assets.
(j) "Event of Default" means an Event of Default as defined in the
Contract.
(k) "Finance Documents" means the Contract, the Share Pledge Agreement,
the Custody Agreement and this Agreement.
(l) "Fixed Amount" has the meaning given to it in the Contract.
(m) "including" means "including without limitation", not delimiting the
term(s) to which the word relates to the example(s) thereafter
mentioned.
(n) "Pledge" means a pledge pursuant to Art. 899 et seq. of the Swiss
Federal Civil Code over the Pledged Assets in accordance with the
terms of this Agreement.
(o) "Pledged Assets" means any and all present and future assets, cash,
cash equivalents, term deposits, call deposits, claims and other
assets held by the Pledgor with the Bank in or in respect to the
Account in Swiss francs or in foreign currency which are now or may at
any time in the future be held in the Account and any rights
pertaining to such Account.
(p) "Relevant Proportion" means, in relation to any release of Pledged
Assets pursuant to Clause 7(c) upon an exercise of the Call Option,
the proportion which the number of Units (as defined in the Contract)
the subject of such exercise bears to the Number of Outstanding Units
(as defined in the Contract) immediately prior to such exercise.
(q) "Secured Debt" means any and all present and future obligations and
liabilities of any nature (whether actual or contingent, matured,
liquidated or unliquidated and whether owed jointly or severally and
whether as principal or surety or in any other capacity whatsoever) of
the Pledgor due, owing or incurred under or in connection with the
Finance Documents (or any of them) to the Pledgee or any receiver
(including, without limitation, under any amendments, supplements or
restatements of any of the Finance Documents) in any currency or
currencies, in each case together with all interest accruing thereon
whether before or after judgment, and all costs, charges and expenses
incurred by the Pledgee in connection with the protection,
preservation or Enforcement of its respective rights under the Finance
Documents or any other document evidencing or securing any such
liabilities.
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(r) "Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having the effect of Security.
(s) "Shares" means shares in Astra.
(t) "Share Pledge Agreement" means the share pledge agreement dated on or
about the day hereof between Pledgor as pledgor and DB as pledgee
regarding the pledge of Shares.
(u) "Triventura" means Triventura AG, c/o Schatti + Partner AG,
Xxxxxxxxxxxx 00x, 0000 Xxxx (ZG).
1.2 INTERPRETATION
In this Agreement:
(a) references to any person includes a reference to any individual, firm,
company, corporation or other body corporate, government, state or
agency of a state or any joint venture, association or partnership,
(whether or not having separate legal personality), as well as to any
of its successors, permitted assignees and transferees;
(b) references to any agreement or document are references to that
agreement or document as substituted, novated, supplemented, amended
or changed (however fundamental, including, without limitation,
accessions and changes to any facility provided or increases in their
maximum amount), from time to time, in accordance with its terms but
excluding for this purpose any amendment, variation, supplement or
modification which is contrary to any provision of the Finance
Documents;
(c) references to Clauses and Annexes are references to, respectively,
clauses of and annexes to this Agreement;
(d) words importing the plural shall include the singular and vice versa;
and
(e) the terms "it / its" are used gender neutral.
2. PLEDGE AND PLEDGORS' OBLIGATIONS
2.1 UNDERTAKING TO PLEDGE
The Pledgor agrees (i) to pledge to the Pledgee all the Pledged Assets,
including as at the date hereof, as continuing security for the Secured
Debt until such time as the Secured Debt has been paid and discharged in
full, and no further Secured Debt is capable of aris-
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ing as further set out in Clause 7 and, therefore, (ii) to effect this
Pledge on the date hereof.
2.2 EFFECTING OF THE PLEDGE
For the purposes of effecting the Pledge under Clause 2.1, the Pledgor
hereby pledges to the Pledgee the Pledged Assets. The Pledgee hereby
accepts the Pledge. The Pledgor undertakes to execute all such instruments
or documents and to take all appropriate steps for the purpose of
perfecting the Pledge over the Pledged Assets.
2.3 CORPORATE APPROVALS
On the date of this Agreement, the Pledgor has furnished to the Pledgee:
(a) a copy of the resolutions of the board of directors of the Pledgor by
which
(i) the terms of and the transactions contemplated by this Agreement
as well as the execution, delivery and performance of this
Agreement are acknowledged and approved; and
(ii) a specified person or persons are authorised to conclude the
negotiations, sign, execute and perform this Agreement and to
conclude the negotiations, sign, execute and/or dispatch all
documents and notices to be signed and/or dispatched in
connection with this Agreement.
(b) a certified copy of its articles of association and a certified
extract from the commercial register in its respect.
3. ADMINISTRATION OF PLEDGED ASSETS
3.1 ACCESS BY PLEDGOR
(a) The Pledgor shall have no access to the Account and may not withdraw
or dispose of the Pledged Assets held in the Account.
(b) The Pledgor may at the Payment Date request the Pledgee to apply
Available Dividend Proceeds and/or the Sale Proceeds (as defined in
the Share Pledge Agreement) in or towards payment of any Fixed Amount
falling due for payment by the Pledgor under the Contract, or any
amount so falling due for payment by the Pledgor under Item 2 lit. (c)
of Schedule 2 to the Contract. In such event, on the due date for such
payment under the Contract the Pledgee shall release from the Pledge
an amount thereof up to the amount of the relevant payment and
appropriate it for its own ac-
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count in or towards satisfaction of the Pledgor's payment obligations in
respect of such payment.
(c) If the Pledgor so requests the Pledgee in writing prior to the Event
of Default Termination Date or a Regulatory Termination Date (as these
terms are defined in the Contract), the Pledgee shall apply all or any
part of the Pledged Assets in or towards satisfaction of Triventura's
payment obligations under the Contract in respect of its termination
on the Event of Default Termination Date or the Regulatory Termination
Date (as the case may be).
3.2 DEFINITIONS
"Available Dividend Proceeds" means, at any time, the balance then credited
to the Account, but only to the extent that it consists of the proceeds of
Dividends paid in respect of Shares pledged pursuant to the Share Pledge
Agreement.
"Exchange Property" has the meaning given to it in the terms and conditions
of the Contract.
3.3 DIVIDEND PAYMENTS
Triventura undertakes to deposit any dividend payment received in relation
to the Shares pledged pursuant to the Share Pledge Agreement in the
Account.
4. FURTHER UNDERTAKINGS OF THE PLEDGOR
Except with the Pledgee's prior written consent the Pledgor shall not enter
into any legal instrument relating to, or granting any lien, encumbrance,
charge or other third party right over, or dispose of, or assign the
Pledged Assets or take any other action with respect to the Pledged Assets
that would jeopardize any rights of the Pledgee under the Pledge, or would
jeopardize the Enforcement or the value of the Pledged Assets.
5. APPLICATION OF PROCEEDS
Any proceeds received hereunder by the Pledgee, after the security hereby
constituted shall have become enforceable, in particular any proceeds
received under Clause 6, shall be applied in accordance with the following
order: (a) cost and expenses owed by the Pledgor under the Finance
Documents, (b) fees owed by the Pledgor to the Pledgee under the Finance
Documents, (c) unpaid (default) interest due under the Finance Documents
and (d) any other debt due under the Finance Documents, in each case to the
extent that they constitute Secured Debt.
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6. ENFORCEMENT
(a) Upon the occurrence of an Event of Default, the Pledgee or any such
other institution instructed by the Pledgee for this purpose, shall
without any further prior notice or communication to the Pledgor be
entitled, at its discretion, to:
(i) effect Enforcement by either (1) private realisation (Private
Verwertung, including, without limitation, self-sale
(Selbsteintritt)) of Pledged Assets or (2) enforcement
proceedings pursuant to the Swiss Federal Statute on Debt
Collection and Bankruptcy under the exclusion of Art. 41 of the
Swiss Federal Statute on Debt Collection and Bankruptcy (waiver
of the beneficium excussionis realis) and the parties hereto
agree in advance that a "Freihandverkauf" shall be admissible;
(ii) act as Pledgee contracting in its own name and in the name or for
the account of third persons in private or official Enforcement;
(iii)instruct the Bank to do any of the foregoing for the account of
the Pledgee.
(b) Failure by the Pledgee to sell Pledged Assets or to exercise any right
or remedy including, but not limited to, the acceptance of partial or
delinquent payments, shall not result in any liability of the Pledgee
and shall not prejudice any of the rights the Pledgee may have under
this Agreement or the Finance Documents be a waiver of any obligation
of the Pledgor hereunder and/or thereunder.
(c) Notwithstanding previous sales or transfers of Pledged Assets without
formality or notice, the Pledgee retains the right at all times to
take any measure it deems necessary or appropriate in accordance with
the Swiss Federal Statute on Debt Collection and Bankruptcy.
(d) In addition, the Pledgee shall, following the occurrence of an Event
of Default, be entitled to set-off any claim it may have under the
Finance Documents with the Pledgor's rights and claims towards the
Bank regarding the Account and the Pledged Assets thereon.
7. CONTINUING SECURITY; RELEASE OF THE PLEDGED ASSETS
(a) The Pledge constitutes a continuing security interest. The security
created hereby shall only terminate and the Pledgee shall, subject to
Clause 3 and to this Clause 7, only be obliged to release the Pledged
Assets or the remainder thereof if and once the Pledgee is satisfied
that all the Secured Debt has been irrevocably paid in full and that
all the agreements which might give rise to Secured Debt have been
terminated.
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(b) Any Pledged Assets to be returned pursuant to the preceding paragraph
upon termination of this Agreement shall be delivered net of any
transfer taxes or other expenses in connection with such return or
release. Neither the Pledgee will make or shall be deemed to have made
any representation or warranty, whether express or implied, with
respect to any Pledged Assets so delivered, except that any such
Pledged Assets shall be delivered to the Pledgor free and clear of any
third party right granted by the Pledgee.
(c) Upon each exercise of the Call Option, the Pledged Assets subject to
the Pledge under this Agreement shall be reduced by an amount equal to
the Relevant Proportion of the Pledged Assets as of the date of such
exercise and the Pledgee shall release such amount of Pledged Assets
from the Pledge.
8. REPRESENTATIONS AND WARRANTIES
Without prejudice and in addition to the representations and warranties
under the Contract, which are incorporated herein by way of reference, the
Pledgor represents and warrants to the Pledgee and undertakes during the
subsistence of this Agreement as follows:
(a) the Pledgor is, and will be, the sole, absolute legal and beneficial
owner of its Pledged Assets and the Pledged Assets are and will
continue to be free and clear of any Security (except as created under
this Agreement) and/or any restriction on the ability to transfer or
realise all or any part of the Pledged Assets.
(b) All necessary governmental and other consents, approvals, licenses and
authorisations to enable it to enter into this Agreement have been
obtained and are, and will remain, in full force and effect.
(c) The Pledgor has, and will have, the necessary power to enable it to
enter into and perform its obligations under this Agreement and all
consents, approvals, and authorisations have been obtained and
corporate resolutions passed to make the Pledges valid, binding and
enforceable in accordance with the terms of this Agreement.
(d) The resolutions and corporate documents delivered in accordance with
Clause 2.3 relating to it are correct, complete and in full force and
effect as at the date hereof.
(e) The obligations expressed to be assumed by the Pledgor under this
Agreement are legal, valid, direct and unconditional obligations
binding on it and enforceable against it in accordance with the terms
thereof.
(f) It is not necessary that (i) the Agreement be filed, recorded or
enrolled with any court or other authority or (ii) any stamp,
registration or similar tax be paid on or in relation to the
Agreement.
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9. FURTHER ASSURANCES OF THE PLEDGOR
(a) The Pledgor shall promptly do all things (including the delivery,
transfer, assignment or payment of all or part of the Pledged Assets
to the Pledgee or its nominee(s)) and execute all documents that are
required or expedient for the purpose of the exercise of Collateral
Rights or securing or perfecting the Pledge.
(b) The Pledgor undertakes to enter into and procure the perfection of
additional pledge agreements, if and to the extent that a Pledge
requires as a matter of law, the execution and perfection of a
specific pledge agreement and/or any other action.
(c) Upon the occurrence of an Event of Default, the Pledgor shall, upon
demand from the Pledgee, execute all documents and do all other things
that the Pledgee may require to facilitate the Enforcement.
(d) The Pledgor undertakes to indemnify the Pledgee for any prejudice it
may suffer as a result of the Pledgor's non-performance and/or breach
of any terms, covenants or obligations under this Agreement and keep
the Pledgee indemnified against and harmless from any and all losses,
liabilities, costs and expenses incurred under or in connection with
this Agreement or its Enforcement as a result of such non-performance
or breach.
10. NO ASSIGNMENT OR TRANSFER
The rights and obligations of the Pledgor and the Pledgee under this
Agreement may not be assigned or transferred except for assignments and
transfers by the Pledgee upon prior written notice to the Pledgor, which
shall be given as soon as reasonably practicable but in any case not later
than 20 calendar days before such assignment or transfer, to any other
entity belonging to the Deutsche Bank Group, Sonata Securites SA, Bluebird
Securities SA and/or any other securitization vehicle established under
Luxembourg law and designated by DB from time to time, provided, however,
that such assignment can not be effected without the prior consent of the
Pledgor if supported by an opinion of legal counsel or tax advisor the
Pledgor informs the Pledgee that such assignment would be materially
adverse to the interests of the Pledgor.
11. EFFECTIVENESS OF COLLATERAL; DISCHARGE OF SECURED DEBT
The collateral constituted by this Agreement and the Collateral Rights
shall be cumulative, in addition to and independent of every other security
which the Pledgee may at any time hold for the Secured Debt or any rights,
powers and remedies provided by law.
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12. POWER OF ATTORNEY AND NOTICES
(a) The Pledgor authorises the Pledgee to be its attorney and in its name,
on its behalf and as its act and deed to execute, deliver and perfect
all documents and do all things that the Pledgee may consider to be
requisite for carrying out any obligation imposed on the Pledgor under
this Agreement or exercising any of the rights conferred on the
Pledgee by this Agreement or by law, in particular in connection with
a private realisation (Private Verwertung, including, without
limitation, self-sale (Selbsteintritt)) provided that as long as no
Event of Default has been declared the Pledgee agrees not to take any
such step unless the Pledgee would have the right under this Agreement
to request the Pledgor to take such step and the Pledgor has failed to
take such step within 10 business days upon being notified of that
failure and being requested to comply.
(b) Any notices by the Pledgee to the Pledgor under this Agreement shall
be sent by fax to Xxxxxxxxxx XX, X.X. Xxx, , XX-0000 Zurich, fax nr.
x00 00 000 0000 or such other fax number as the Pledgor may designate
for such purpose from time to time.
13. EXCULPATION
The Pledgee shall not be liable for any breach of this Agreement except in
the case of gross negligence or wilful default upon its part. In
particular, the Pledgee shall not be liable by reason of (a) taking or not
taking any action under this Agreement or exercising any Collateral Right,
(b) any neglect or default in connection with the Pledged Assets, or (c)
the Enforcement or collection of all or any part of the Pledged Assets,
except in case of proven wilful misconduct and gross negligence.
14. EXPENSES AND TAXES
Each party shall bear the registration costs and stamp duties or other
duties incurred by it in connection with the execution and perfection of
the Pledge. In the event of an Enforcement of the Pledge hereby constituted
or the exercise of any Collateral Right, the Pledgor shall reimburse and
indemnify the Pledgee for any costs and expenses incurred by it. Any
transfer or stamp duty taxes, incurred in connection with the Enforcement
of the Pledge shall be borne and indemnified by the Pledgor.
15. CURRENCY CONVERSION
For the purpose of or pending the discharge of any of the Secured Debt, the
Pledgee may convert any money received, recovered or realised or subject to
application by it under this Agreement from one currency to Swiss Francs.
Any such conversion shall be effected at the Pledgee's spot rate of
exchange for the time being for obtaining such other currency with the
first currency.
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16. CONSENT BY BANK
The Bank consents to the Pledge over the Account constituted by this
Agreement and agrees that any right of set-off or pledge in favour of it
shall be junior to the rights of the Pledgee under this Agreement.
17. SEVERABILITY
If any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, this shall not affect or impair (i) the
validity or enforceability in that jurisdiction of any other provision of
this Agreement or (ii) the validity or enforceability in any other
jurisdiction of that or any other provision of this Agreement, and the
parties will negotiate in good faith to replace the relevant provision by
another provision reflecting as closely as possible the original intention
and purpose of the parties.
18. WAIVERS AND MODIFICATIONS
(a) No failure on the part of the Pledgee to exercise, or delay on its
part in exercising, any Collateral Right shall operate as a waiver
thereof, nor shall any single or partial exercise of a Collateral
Right preclude any further or other exercise of that or any other
Collateral Right.
(b) This Agreement may be terminated, amended or modified only
specifically and in writing.
19. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
20. LAW AND JURISDICTION
(a) This Agreement shall in all respects, including, without limitation,
all the rights in rem aspects, be governed by, and construed in
accordance with, the substantive laws of Switzerland.
If and to the extent that the choice of the substantive laws of
Switzerland is not recognized by the relevant court, this Agreement
shall be governed by, and construed in accordance with, the
substantive laws of the Federal Republic of Germany.
(b) Each party submits to the exclusive jurisdiction of the Commercial
Court of the Canton of Zurich (Handelsgericht des Kantons Zurich),
Switzerland, venue being Zurich 1, with the right to appeal to the
Swiss Federal Court (Eidgenossisches
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Bundesgericht) in Lausanne as provided by law, whose judgment shall be
final, for all purposes relating to this Agreement. The Pledgee
reserves the right to bring an action against the Pledgor at its place
of domicile or before any other competent court.
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ANNEX 1.0: DETAILS OF PLEDGOR'S ACCOUNT WITH THE BANK
Account Number: [Deleted from this filing]
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SIGNATORIES
THE PLEDGOR
Date: 8.11.2006 TRIVENTURA AG
/s/ Xxxxxx Xxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxx
--------------------
Name: Xxxxxx Xxxxx
THE PLEDGEE:
Date: 14.11.2006 DEUTSCHE BANK AG
/s/ Pierre-Xxxxxx Xxxxxxxx
------------------------------
Name: Pierre-Xxxxxx Xxxxxxxx
/s/ Xxxxx Xxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxx
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