EXHIBIT 7
PLEDGE AND PLEDGEHOLDER AGREEMENT
BETWEEN
A) --------------------------------------------(HEREAFTER "THE "PLEDGOR") AND
B) DEUTSCHE BANK AG, LONDON BRANCH AND
C) DEUTSCHE BANK (SUISSE) S.A.
1. The Pledgor hereby pledges to Deutsche Bank AG, London Branch (hereinafter
referred to as the "Bank" or "the Pledgee") its/their assets, claims,
tangible property and rights as per Article 22 now or later being held by
Deutsche Bank (Suisse) S.A. (hereinafter referred to as "DBS" or "the
Pledgeholder"), including its/their claims on DBS itself. Insofar as DBS
has the assets and rights held in safe custody in its own name in
Switzerland or abroad for the account of the Pledgor, the Pledgor hereby
pledges to the Bank all rights, especially the right to return, as well as
all co-ownership rights to collective deposits in Switzerland and in other
countries. Documents that are not bearer securities are hereby assigned to
the Bank as pledge pursuant to the Swiss Civil Code ("CC"), Section 901
(2). In the event of realisation in the Bank's favour, this assignment
shall be deemed at the time to be a blank assignment.
2. The Pledgor also creates a pledge in favour of the Bank in respect of its
valuable rights not in certificate form, notably shares whose confirmation
by document has been postponed, which are now or later administered for the
Pledgor's account by DBS or in the latter's name by third parties.
3. All rights that have already fallen due and all future rights attaching to
the aforementioned assets and rights (such as interest, dividends, coupons,
warrants, etc.) are also pledged and/or assigned.
4. As the pledged assets are at the Pledgee's disposal, the pledged items may
be sold, exchanged and repaid only with the Bank's express or implied
consent. The newly exchanged or purchased items and/or the claims against
DBS arising from repayment (hereinafter referred to as "Countervalue") will
take the place of the items pledged originally. The Countervalue can be
used with the Bank's consent to acquire new items. These automatically
serve as pledges to the Bank. Such items are always pledged and assigned in
their entirety even if their value was increased later (e.g. through
additional deposits or similar means).
5. In the event that mortgage titles, titles of presentation or legitimation,
inventories and other movables or goods certificates are pledged, the
Pledgor shall be obliged to take out the customary insurance policy for the
pledged items and/or the land, real property, objects or goods they
represent. The Pledgor hereby assigns to the Bank as security all claims
for compensation under insurance policies, under private and public law
(including compensation for compulsory requisition) arising to it in
respect of the above-mentioned assets. It authorises the Bank to take all
measures required for assertion and collection and to accept such
compensation for its account and to confirm receipt in a legally binding
form.
6. The pledged assets as well as the pledged and assigned claims and other
rights (hereinafter referred to as "Assets") shall serve as collateral to
the Bank for all claims that the Bank has and/or will have against the
Pledgor itself and/or against
----------------------------- (complete with full name and official address
of Pledgor)
(hereinafter, alone or collectively, referred to as the "Debtor")
--------------------------------------------------------------------------
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from any existing and future credit facilities, including all due, current
or future interest and commissions, as well all other judicial or
extrajudicial expenses and costs incurred in connection therewith or with
the realisation of the Assets (hereinafter collectively referred to as
"Claim" or "Claims").
7. The Assets shall as far as their nature allows be held and administered in
accordance with the safe custody regulations of DBS. Moreover, the Pledgor
shall be responsible for taking the precautions necessary to protect the
value of the Assets so pledged. The Bank is, however, entitled but not
obliged at its discretion to take such precautions itself at the Pledgor's
expense and risk. In particular, the Bank is authorised to take any actions
or issue any statements in Switzerland or abroad which are required to
pledge, protect and/or realise the Assets. In addition, the Bank may at any
time take custody of Assets held by DBS or any third parties, give notice
in respect of and collect such Assets and in respect of mortgages exercise
all rights accruing to the mortgagee (Section 793 et seq. of CC).
8. If securities, valuable rights not in certificate form or other claims
subject to termination, drawing, repayment or any other agreement, have
been pledged, the Pledgor shall be responsible for making any necessary
arrangements. Nevertheless, the Bank shall be entitled but not obliged to
make such arrangements itself if it deems this necessary to safeguard the
Pledgor's interests.
9. In the event that the Debtor/Pledgor is in arrears with the fulfilment of
the Claim or is in default with regard to any of its obligations towards
the Bank, the Bank is automatically entitled (but is not obliged) to
realise the Assets forthwith at its discretion, either freely by private
sale (including to itself) or by force of law and to apply the proceeds
thereof in full or partial reimbursement of the Claim. Such realisation
will be carried out regardless of the formalities contained in the Swiss
Federal Act concerning Debt Collection and Bankruptcy or of the provisions
prevailing at the place of realisation abroad. If there is more than one
claim, the Bank shall, at its discretion, decide to which claim the Assets
or the proceeds of realisation are to be allocated.
10. In the event that the Pledgor is not identical with the Debtor, the Bank
may decide, at its own discretion, not to realise any other items pledged
or assigned by the Debtor or any other third party until realisation of the
Assets by private sale or by force of law as mentioned in above Article 9
has been completed.
11. The Pledgor undertakes, if necessary, to participate in the transfer of the
Assets to a new purchaser and to fulfil upon first demand all formalities
and legal acts required by the Bank in this respect.
12. The Pledgor confirms that he is and will be the unrestricted bearer and/or
owner of the pledged Assets, that these Assets have not already been
transferred to third parties or encumbered with third-party rights, apart
from any right of pledge to which DBS may be entitled under its General
Business Conditions and Deposit Regulations or Pledge Agreement.
13. THE PLEDGOR IRREVOCABLY AND UNCONDITIONALLY AUTHORISES DBS TO PROVIDE THE
BANK WITH UNRESTRICTED INFORMATION ABOUT THE ASSETS AND ITS BANKING
RELATIONSHIP WITH DBS, VERBALLY, IN WRITING OR BY ANY OTHER MEANS OF
COMMUNICATION. THEREFORE, THE PLEDGOR EXPRESSIVELY WAIVES THE BENEFITS OF
SWISS BANKING SECRECY (IN PARTICULAR ARTICLE 47 SWISS BANKING ACT) AND THE
BENEFITS OF THE SWISS FEDERAL LAW ON DATA PROTECTION. THE PLEDGOR IS AWARE
THAT THE BANK WHO RECEIVES THE INFORMATION MAY NOT BE BOUND BY THE SWISS
BANKING SECRECY AND MAY BE FORCED UNDER THE LAW OF THE JURISDICTION, TO
WHICH THE BANK IS SUBJECT, TO DISCLOSE ANY SUCH INFORMATION TO GOVERNMENTAL
OR QUASI-GOVERNMENTAL AUTHORITIES OR AGENCIES (INCLUDING TAX AUTHORITIES).
14. The Pledgor irrevocably and unconditionally instructs DBS to follow
immediately any and all instructions from the Bank (or its representative)
regarding the Assets, including sale and
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realisation and transfer instructions (of the Assets or of the sales
proceeds thereof), without liability whatsoever on DBS's part. The
Pledgeholder undertakes to execute the instructions issued by the Pledgee
concerning the Assets without examining the legal basis and waiving all
objections and exceptions and, in the event the Assets are realised, to
transfer the net sale proceeds to the Pledgee.
15. Unless otherwise agreed between DBS and the Bank, DBS incurs no liability
whatsoever towards the Bank with regards to the performance of the Assets
at any time pledged to the Bank.
16. This pledge is effected in addition to and independently of any existing or
future security/collateral and shall remain in force until the Bank's
Claims have been met in full.
17. The Bank cannot be held responsible if it does not or not fully exercise
the rights accruing to it under this Pledge and Pledgeholder Agreement nor
for any consequential damages from any actions taken under paragraph 9.
18. The authorisations given to the Bank and to DBS under this Agreement shall
not expire in the event of the Pledgor's death or for any of the reasons
for expiry as stipulated in Article 35 of the Swiss Code of obligations.
These authorisations are deemed to have been issued irrevocably in the
interest of the Bank.
19. In addition to its customary fees and banking charges, DBS is also entitled
to levy a commission for its activity as Pledgeholder.
20. This Pledge and Pledgeholder Agreement and with it the sole right of
disposal over the pledged assets given to the Pledgee expire only on
notification of the Pledgeholder by the Pledgee to this effect. The
Pledgeholder in turn can terminate the Pledgeholder Agreement at any time
with immediate effect and with delivery of all Assets to the Pledgee.
21. THIS PLEDGE AND PLEDGEHOLDER AGREEMENT IS GOVERNED BY SWISS LAW. PLACE OF
PERFORMANCE, PLACE OF COLLECTION FOR PLEDGORS RESIDING ABROAD AND SOLE
PLACE OF JURISDICTION FOR ALL PROCEEDINGS SHALL IN EACH CASE BE THE PLACE
WHERE THE RESPECTIVE DBS OFFICE IS LOCATED. FOR THIS PURPOSE THE PLEDGOR
ELECTS THE RESPECTIVE OFFICE OF DBS AS THE LEGAL AND SPECIAL DOMICILE.
HOWEVER, THE PLEDGEE SHALL ALSO HAVE THE RIGHT TO BRING AN ACTION AGAINST
THE PLEDGOR BEFORE THE COMPETENT COURT AT ITS PLACE OF RESIDENCE OR BEFORE
ANY OTHER COMPETENT COURT.
22. List of the Assets pursuant to Article 1 of this Agreement:
ANY AND ALL ASSETS WHATSOEVER DEPOSITED OR RELATING TO
ACCOUNT N(DEGREE)------------------- OF THE PLEDGOR WITH DEUTSCHE BANK
(SUISSE)S.A. AT PRESENT AND IN FUTURE.
PLACE:--------------------- DATE:---------------------------------
THE PLEDGOR, ----------------- SIGNATURE ----------------------
(FULL NAME)
THE PLEDGEE, DATE----------------- SIGNATURE(S)---------------------
THE PLEDGEHOLDER, DATE------------ SIGNATURE(S)---------------------
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