Exhibit 99.19
EXECUTION VERSION
ASSIGNMENT AGREEMENT
DATED 11 FEBRUARY 2004
BETWEEN
CARBOGEN AG
AS ASSIGNOR
AND
KBC BANK NV
AS ASSIGNEE
EXECUTION VERSION
THIS ASSIGNMENT AGREEMENT (the AGREEMENT) is made on 11 February 2004
BETWEEN:
(1) CARBOGEN AG, a stock corporation (Aktiengesellschaft) organised
under the laws of Switzerland, having its corporate seat at ▇/▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, which is registered in the Commercial Register
(Handelsregister) under registration number CH-400.3.020.068-6,
(the ASSIGNOR);
and
(2) KBC BANK NV, a Belgian bank, with registered office at ▇▇▇▇▇▇▇▇▇ ▇,
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, 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 ASSIGNEE).
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 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 Assignor guaranty the prompt
payment and performance when due of all obligations of the Issuer
under the Credit Documents and grant a receivables assignment to
the Assignee to secure its obligations to the Assignee as provided
herein and undertake the obligations contemplated by this
Agreement.
(C) Pursuant to Clause 2.1 of the Collateral Agency Agreement (as
defined below), the Assignee shall be the joint creditor (together
with the relevant Noteholder) of each and every obligation of the
Assignor, as guarantor, towards each of the Noteholders under the
Assignor Subsidiary Guaranty (as defined below) and the other
Credit Documents to which the Assignor is a party, and accordingly
the Assignee will have its own independent right to demand
performance by the Assignor of those obligations. There is as a
result a joint creditorship under New York law between the
Noteholders and the Assignee with regard to the sums owed under the
Assignor Subsidiary Guaranty (as defined below) and the other
Credit Documents.
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EXECUTION VERSION
(D) In consideration of the agreements set forth herein and in the
Terms and Conditions of Notes, the Agreement of Understanding and
the other Credit Documents, the Assignor agrees to create a
security assignment in respect of the Claims (as defined below) in
favour of the Assignee under the following terms (the AGREEMENT).
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
1. INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
ACCOUNT BALANCES means all present and future assets, such as
moneys standing to the credit of the Bank Accounts (as defined
below), and all entitlement to interest accruing to any such moneys
together with any other assets or rights on deposit on the Bank
Accounts.
ASSIGNMENT means the assignment of Claims (as defined below)
created or arising pursuant to this Agreement.
ASSIGNOR SUBSIDIARY GUARANTY means the Subsidiary Guaranty made by
the Assignor in favour of the Assignee on or about the date of this
Agreement.
BANKS means the banks with whom one or several Bank Accounts (as
defined below) have been or will be opened.
BANK ACCOUNT means any existing account opened in the name of
the Assignor including (without limitation) those listed in
Schedule 1-B hereto and any update thereof, or any new such
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account to be opened in the future in the name of the Assignor.
BANK ACCOUNT CLAIMS means all sums owing to the Assignor from the
balance from time to time, and as the case may be, the final
closing balance of any existing account opened in the name of the
Assignor including (without limitation) the Bank Accounts listed in
Schedule 1-B and any update thereof, and any other account (whether
a current account or a deposit account, or any other type of
account) held by the Assignor in any currency with any Person in
Switzerland or abroad, or any new such account to be opened in the
future in the name of the Assignor.
CHF means the lawful currency of Switzerland.
CLAIMS means all claims, present or future, actual or contingent,
owing to the Assignor, including but not limited to claims in
connection with any of the following: Intra-Group Receivables,
Loans and Guarantees, Insurance Claims, Trade Receivables, Bank
Account 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.
A list of the Existing Claims is attached hereto as Schedules 1-A
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to 1-C. The assignment of the assigned Claims also includes the
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assignment of all claims for unjust enrichment or claims in tort
which relate to any intended, concluded, invalid or rescinded
agreement.
CO means the Swiss Federal Code of Obligations, as amended.
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EXECUTION VERSION
COLLATERAL AGENCY AGREEMENT means the collateral agency agreement
dated among the Issuer, the Subsidiary Guarantors, the Assignee and
the Noteholders party thereto, as amended, modified or supplemented
from time to time.
DEBTOR means each debtor of or counterparty to a Claim.
EURO, euro, EUR or (euro) means the lawful currency of the
Participating Member States.
GROUP means Solutia, Inc. and its Subsidiaries and all Affiliates
owned by Solutia, Inc. and its Subsidiaries.
INSURANCE CLAIMS means all sums owing to the Assignor from any
insurance company on account of any insurance policy (other than
any life, health, group insurance or similar insurance policy),
whether as insurance indemnities, refunds of premium or otherwise;
provided that Insurance Claims shall not include any insurance
outstanding as of the date hereof the assignment of which would
violate the insurance contract between the Assignor and the
relevant insurance company.
INTRA-GROUP RECEIVABLE means all sums owing to the Assignor by
other members of the Group on any account and of any nature
whatsoever.
ISSUER means Solutia Europe NV/SA, a Belgian company limited by
shares, having its registered office at Boondaelse ▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ and registered at the Crossroads Bank for
Enterprises, under enterprise number 0460.474.440.
LOANS AND GUARANTEES means all sums owing to the Assignor from any
Person, and in particular from any affiliated company or associated
company, on account of loans, advances (whether in current account
or not) or other financial credits made or granted by the Assignor,
or on account of any recourse (whether by way of subrogation or
otherwise) against any Person by reason of a guarantee or security
given by such Assignor for such Person's liabilities.
NOTES has the meaning given to such term under (A) of the Preamble.
PARTY means a party to this Agreement.
PAYMENT DEFAULT means the default of the Assignor to pay to the
Assignee any amounts when due owed by the Assignor under the
Assignor Subsidiary Guaranty, the Collateral Agency Agreement and
any other Credit Document to which it is party.
SECURED OBLIGATIONS means all present and future actual and
contingent indebtedness, obligations, and liabilities of the
Assignor to the Assignee which may arise under, out of, or in
connection with the Collateral Agency Agreement, the Assignor
Subsidiary Guaranty or any other Credit Document to which the
Assignor is party.
SECURITY means any and all security granted by any Credit Party to
the Assignee with a view to securing the Secured Obligations.
SUBSIDIARY 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.
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EXECUTION VERSION
TRADE RECEIVABLES means all present and future monetary receivables
and claims held by the Assignor against clients, purchasers or
suppliers of any of them whether resulting from its present or
future business or from any other cause at law.
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. ASSIGNMENT
(a) The Assignor hereby assigns all of the Claims to the Assignee (the
ASSIGNMENTS).
(b) 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.
(c) Together with the Claims all security interest, collateral and any
other rights pertaining thereto, as well as all rights resulting
from the underlying agreements including the Assignor's rights to
demand repossession against the direct possessor are transferred
and assigned to the Assignee.
(d) Notwithstanding the provisions of (b) - (c) above, the security
interest granted hereunder shall become effective at the time of
the execution of this Agreement.
(e) Insofar as additional declarations or actions are necessary for the
perfection of the security interest to be granted hereunder or its
enforcement, the Assignor shall, at the Assignee's request, make
such declarations or undertake such actions.
(f) The Assignee accepts the before mentioned Assignment.
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
Obligations.
4. LIST OF CLAIMS
(a) The Assignor shall provide the Assignee following the occurrence of
a Payment Default (or if so requested by the Assignee), in order to
permit the safeguarding of its legitimate interests, with a list of
those Claims which were still outstanding at the end of the
preceding month. Unless otherwise agreed, the list shall show the
names, addresses and telephone numbers of the Debtors as well as
the outstanding amounts, the invoice dates and the due dates. If
one or several Claims cannot be asserted, the Assignor shall
indicate which Claims are affected and for which reasons such
Claims cannot be asserted.
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EXECUTION VERSION
(b) In order to protect its legitimate interests, the Assignee is
entitled to request upon the written instructions of the Requisite
Noteholders additional information or documents from the Assignor
in order to protect its legitimate interests, and the Assignor
shall promptly upon request (but in any event within ten (10)
Business Days) provide the Assignee with such information or
documents; provided that, unless a Payment Default has occurred and
is continuing, the Assignor may retain such information and
documents that are subject to a confidentiality undertaking to
which the Assignor is bound.
(c) 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.
(d) 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.
(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 instruct the third party to provide
the Assignee with the list in accordance with the terms and
conditions of this Agreement.
5. THE ASSIGNOR RIGHTS
(a) 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).
(b) The Assignee may revoke the right mentioned in Clause 5(a) at any
time after the occurrence and continuance of a Payment Default.
6. DISCLOSURE AND NOTIFICATION TO BANKS
(a) The Assignor shall notify, without delay and in any event within 5
(five) Business Days following the date hereof, the Persons listed
on Schedule 1-B at which it currently maintains Bank Accounts of
the fact that such Bank Accounts have been assigned to the Assignee
pursuant to this Agreement, and the Assignor shall use its best
efforts to deliver to the Assignee such Persons' signed
acknowledgements thereto no later than ten (10) Business Days
following the date hereof. Each such notification shall be
substantially in the form of Schedule 2 to this Agreement. With
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respect to each Person other than listed in Schedule 1-B (as said
Schedule is supplemented or amended in accordance with Clause 11(j)
and paragraph (b) below) at which the Assignor maintains any other
Bank Account after the date hereof, the Assignor shall notify,
without delay and in any event no later than five (5) Business Days
following the date it opens such Bank Account, such Persons of the
fact that such Bank Accounts have been assigned to the Assignee
pursuant to this Agreement, and the Assignor shall use its best
efforts to deliver to the Assignee such Persons' signed
acknowledgements thereto no later than ten (10) Business Days
following the date thereof. Each such notification shall be
substantially in the form of Schedule 2 to this Agreement. For the
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avoidance of doubt, the Assignee shall not have any obligation to
obtain the signed acknowledgements itself.
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EXECUTION VERSION
(b) Subject to and in accordance with the terms and conditions of the
Credit Documents and of this Agreement, the Assignee hereby
authorises the Assignor to use any Account Balances in the ordinary
course of business or where such a disposal is required by law
until such authorisation is revoked in accordance with Clause
8.(a).
(c) The Assignor hereby acknowledges that following the Assignment, the
Assignee is authorised to obtain at any time from the Bank all
required information regarding the Bank Accounts, and, upon the
occurrence and continuance of a Payment Default, to dispose of any
Account Balance without the consent of the Assignor within the
limits of this Agreement.
7. DISCLOSURE AND NOTIFICATION TO OTHER DEBTORS
(a) As long as no Payment Default shall have occurred and is
continuing, the Assignor shall be free to collect all amounts due
under the Claims as it sees fit. The Assignor shall notify, without
delay and in any event no later than five (5) Business Days
following the date hereof, the debtors and counterparties listed on
Schedule 1-A against whom it currently holds 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 hereof. Each such notification shall be
substantially in the form of Schedule 3 to this Agreement. With
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respect to each Intra-Group Receivable arising from debtors other
than those listed in Schedule 1-A to this Agreement (as said
Schedule 1-A is supplemented or amended pursuant to Clause 11(a))
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 pledged 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 3 to this Agreement.
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For the avoidance of doubt, the Assignee shall not have any
obligation to obtain the debtors' and counterparties' signed
acknowledgements itself.
(b) Upon the occurrence of a Payment Default that is continuing, the
Assignor shall immediately notify the debtors and counter parties
against whom it holds Trade Receivables of the fact that the Trade
Receivables owing from them have been pledged to the Assignee
pursuant to this Agreement, and that such Claims may only be
discharged by payment to the Assignee. Such notification shall be
substantially in the form of Schedule 4 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, the
counterparties to the insurance contracts listed on Schedule 1-C of
the fact that any insurance owed or to be owed under such insurance
contracts 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
thereto no later than twenty (20) Business Days following the date
hereof. Each such notification shall be substantially in the form
of Schedule 5 to this Agreement. With respect to any Insurance
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Claims owed or to be owed under insurance contracts other than
those listed in Schedule 1-C to this Agreement (as said Schedule
1-C is supplemented or amended pursuant to Clause 11(a)) 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
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EXECUTION VERSION
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. Each such
notification shall be substantially in the form of Schedule 5 to
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this Agreement. For the avoidance of doubt, the Assignee shall not
have any obligation to obtain the counterparties' signed
acknowledgements itself.
(d) The Assignor shall provide the Assignee without delay with a copy
of any notification given pursuant to this Clause 7, together with
the adequate evidence of such notification having been sent and
received. For the avoidance of doubt, the Assignee shall not have
any obligations to investigate or verify whether the Assignor has
complied with any of its notification obligations.
(e) The Assignee may give any notice required to be given pursuant to
this Clause 7 if the Assignor has not given such notice within five
(5) Business Days after the Assignor is required or at any time
following the occurrence and during the continuance of a Payment
Default. For this purpose, the Assignor will deliver to the
Assignee simultaneously with the execution of this Agreement,
notifications in the form of Schedules 2, 3, 4 and 5 to this
Agreement, duly printed on its letterhead and duly executed by the
Assignor. Each notification made by the Assignee in accordance with
Clause 6 or this Clause 7 may be accompanied by a photocopy of such
notification. The Assignee shall only give any notice in accordance
with this Clause, upon instructions of the Requisite Noteholders.
(f) The Assignee shall have no responsibility in connection with the
perfection measures contemplated in Clause 6 and this Clause 7
except for its gross negligence or wilful misconduct.
8. ENFORCEMENT AND COLLECTION
(a) If a Payment Default occurs and is continuing, the Assignee is
entitled, without regard to the procedures and formalities provided
for in the Swiss Federal Act Debt Collection and Bankruptcy of
1889, as amended:
(i) to immediately realise any and all of the Claims to the
extent necessary to satisfy any outstanding Secured
Obligations by collecting all or part of the Claims;
(ii) to revoke, with immediate effect, the Assignor's
authorisation to dispose of the Account Balances vis-a-vis
the Banks; and
(iii) to realize, at its discretion, all or part of the Account
Balances (including, for the avoidance of doubt, any new
payments of Trade Receivables made to the Bank Accounts
subsequent to the revocation mentioned above).
(b) To the extent the Assignee is entitled to collect the Claims, it
may request upon the written instructions of the Requisite
Noteholders 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 a Payment Default is not
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 Obligations.
(c) If and to the extent the Assignee collects any Claims pursuant to
this Clause 8 (Enforcement and Collection) hereof, it may take all
measures and enter into all agreements with such
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EXECUTION VERSION
Debtors which it considers to be expedient. In particular, the
Assignee may grant discounts or indulgence to Debtors and/or enter
into settlement agreements.
9. RIGHT OF INSPECTION
The Assignor shall allow the Assignee 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 and
enforcing the Claims. However, as long as no right of realisation
exists a right of inspection for the purpose of inspecting and
checking the Claims only shall only be upon reasonable advance
notification and during normal business hours.
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 authorises the Assignee to
obtain these services, and instructs such third party to handle the
processing of data for the Assignee upon its instructions as it did
for the Assignor.
(b) If, and to the extent, documents required for the inspecting,
checking, 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 instructs
the third party to provide the Assignee with such information and
documents required to inspect, check, evaluate and realise the
assigned Claims. In so far as an electronic data processing is
executed by third parties the Assignor hereby assigns to the
Assignee all its claims for performance and instructs these third
parties to execute the electronic data processing on behalf of the
Assignee in the same manner as they were obliged towards the
Assignor, provided that the Assignee requests them to do so. The
Assignee hereby accepts the aforementioned assignments.
11. UNDERTAKINGS
The Assignor undertakes:
(a) not to take any steps, including without limitation to the
exercise of any right it has under any agreement under which
the Claims arise, which may jeopardise or materially
adversely affect the security interest constituted in this
Agreement.
(b) to provide the Assignee promptly at its reasonable request
all information and documents which are necessary to
asserting the Claims.
(c) to procure, to the extent possible under Swiss law, that no
executory seizure is made on the Claims, and that any
conservatory seizure thereon is lifted within sixty (60) days
of it first being made; and to inform the Assignee promptly
of any attachments (Pfandungen, Arrest) 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 (Pfandungsurkunde, Arrestbefehl) and all
other documents necessary for a defence against the
attachment or its realisation. The Assignor shall inform the
attaching creditor promptly about the Assignee's security
interests;
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EXECUTION VERSION
(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 upon written
instructions from the Requisite Noteholders;
(f) not to assign or sell any of the Claims to any third party
without the Assignee's prior written consent, except as
permitted under the Credit Documents;
(g) not to enter into any kind of arrangement that would provide
for the non-assignability of any assigned Claims or subject
the assignability to the consent of a party other than the
Assignee, without the prior written consent of the Assignee;
(h) not to dispose of the amounts standing to the credit of any
Bank Account other than in the ordinary course of business or
where such a disposal is required by law or approved by the
Assignee in advance in writing; and
(i) in relation to the conduct of its business, to exclusively
use the Bank Accounts, and, in particular, (i) to generally
use its best endeavours to ensure that all Debtors and other
persons make payments in relation to Claims to the Bank
Accounts, and (ii) promptly forward any Trade Receivables
that have been paid otherwise than into the Bank Accounts to
the Bank Accounts.
(j) 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-A (as supplemented from time
to time), the Assignor shall deliver a written notice to the
Assignee, setting forth the name and address of such
additional debtor or counterparty (it being understood that
such written notice shall be deemed to supplement Schedule
1-A 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 opens any
Bank Account at a Person that is not listed on Schedule 1-B
(as supplemented from time to time), the Assignor shall
deliver a written notice to the Assignee, setting forth the
name and address of such Person and the account number of
such Bank Account (it being understood that such written
notice shall be deemed to supplement Schedule 1-B 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 Schedule 1-C (as
supplemented from time to time), the Assignor shall deliver a
written notice to the Assignee, setting forth the name and
address of such Person and the contract number of such
insurance contract (it being understood that such written
notice shall be deemed to supplement Schedule 1-C annexed
hereto for all purposes of this Agreement).
(k) If not done so before, to notify without delay and in any
event no later than five (5) Business Days following the date
hereof the Persons listed on Schedule 1-B at which currently
Bank Accounts are maintained in the name of "CarboGen
Laboratories (Aarau) AG", "CarboGen Laboratories (Neuland)
AG" and/or "CarboGen Laboratories (Marly) AG"of the fact that
in 2003 the Assignor took over by way of a merger all assets
and liabilities of the companies "CarboGen Laboratories
(Aarau) AG", "CarboGen Laboratories (Neuland) AG" and
"CarboGen Laboratories (Marly) AG" including such companies'
Bank Accounts;
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EXECUTION VERSION
(l) to do all acts necessary and/or practical, and use best
efforts, in order to effectuate that without delay and in any
event no later than twenty (20) Business Days following the
date hereof the Bank Accounts listed on Schedule 1-B which
currently still are maintained in the name of "CarboGen
Laboratories (Aarau) AG", "CarboGen Laboratories (Neuland)
AG" and/or "CarboGen Laboratories (Marly) AG" will be changed
to list the Assignor as account holder.
12. REPRESENTATIONS AND WARRANTIES
Without prejudice and in addition to the representations and
warranties of the Assignor under the Collateral Agency Agreement,
Subsidiary Guaranty and the other Credit Documents to which the
Assignor is a party, the Assignor represents and warrants to the
Assignee as of the date hereof and undertakes during the
subsistence of this Agreement as follows:
(a) it is validly existing and neither 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
Assignor. No resolutions have been taken, nor has any
petition been filed, to dissolve or liquidate the Assignor,
nor has the Assignor been declared bankrupt nor has a
suspension of payments been granted to the Assignor;
(b) it has all requisite power and authority to execute, deliver
and perform this Agreement and this Agreement has been duly
authorized, executed and delivered and constitutes the
legally valid and binding obligations of the Assignor,
enforceable against it in accordance with its terms;
(c) it is the holder (Forderungsinhaber) of the Existing Claims
and the rights assigned hereunder, and such Existing Claims
are free of Liens other than Permitted Liens imposed by
mandatory operation of law;
(d) it is the unrestricted creditor and beneficiary of the Bank
Accounts, free from any Lien (save for Permitted Liens
imposed by mandatory operation of law) and that none of the
Bank Accounts have been assigned to any Person other than the
Assignee;
(e) all Claims can be transferred and assigned under the laws and
agreements by which they are governed;
(f) Schedule 1-A, as said Schedule 1-A may be supplemented from
------------ ------------
time to time pursuant to the provisions of Clause 11(j),
contains a true, accurate and complete list of the names and
addresses of all the debtors and counterparties against whom
it currently holds Intra-Group Receivables and Trade
Receivables; Schedule 1-B, as said Schedule 1-B may be
------------ ------------
supplemented from time to time pursuant to the provisions of
Clause 11(j), contains a true, accurate and complete list of
the names and addresses of all Persons at which the Assignor
currently maintains Bank Accounts; Schedule 1-C, as said
------------
Schedule 1-C may be supplemented from time to time pursuant
------------
to the provisions of Clause 11(j), contains a true, accurate
and complete list of the names and addresses of all the
Persons with which the Assignor currently holds insurance
contracts;
(g) 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;
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EXECUTION VERSION
(h) This Agreement does not violate any law or regulation
applicable to the Assignor as of the date hereof, its
constitutional documents or any material contractual or other
obligation binding upon it, that would prevent it from
assigning the Claims.
13. INDEMNITY
13.1 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. The Assignee shall not be under any obligation to
the Assignor to take any steps necessary to preserve any rights in
the Claims 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 Assignor and shall be part of the Secured
Obligations. If any such expenses are borne by the Assignee, the
Assignor shall on first demand reimburse the Assignee therefor, and
its reimbursement obligation shall be part of the Secured
Obligations.
13.2 INDEMNIFICATION
The Assignor will indemnify the Assignee and keep the Assignee and
any attorney, manager, agent or other Person appointed by the
Assignee under this Agreement in accordance with and to the extent
required under the Notes indemnified 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 caused by any breach of the Assignor of any of
its obligations or undertakings contained herein 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 any Assignee.
14. DURATION AND INDEPENDENCE
14.1 DURATION
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 Assignee 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.
14.2 CONTINUING SECURITY
(a) 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 shall any release of Security 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 Assignor or any other
Person or by any legal limitation, disability, incapacity or other
circumstances relating to the Assignor or any other Person, by any
invalidity, illegality or unenforceability of the obligations of
the Assignor or any other Person. The Assignee 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
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EXECUTION VERSION
and Conditions of Notes and applicable law, and (f) apply any
payment received from the Assignor or for its account towards the
Secured Obligations or any other obligations of the Assignor of the
Assignee's choice.
(b) Without prejudice to the scope of the Secured Obligations, the
Assignor and the Assignee 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 Assignee or the Assignor 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 Assignee (or a new assignee, if any). To the
extent that any such further formality or consent on the part of
Assignor will, nevertheless, be required, the Assignor hereby
undertakes to perform any such formality or consent without delay
upon the Assignee request.
14.3 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. If there is a conflict between this
Agreement and the Terms and Conditions of Notes then (to the extent
permitted by law) the Terms and Conditions of Notes shall take
priority over the provisions of this Agreement.
15. COSTS AND EXPENSES
The Assignor will pay to the Assignee the amount of all costs,
charges, fees and expenses (including fees for legal advisers)
reasonably incurred by the Assignee in connection with the
preparation, execution, performance, enforcement and amendment of
this Agreement, or any waiver in relation thereto, together in each
case with any applicable value added tax or other taxes.
16. MISCELLANEOUS
16.1 AMENDMENTS
Changes to and amendments of this Agreement including this Clause
16.1 (Amendments) must be made in writing. No oral supplements to
this Agreement have been or will be made.
16.2 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.
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 Assignee hereunder shall be in addition to
any other right vested in the Assignee and all such rights may be
exercised from time to time and as often as the Assignee
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EXECUTION VERSION
may deem expedient. The Assignor waives any right it may have of
first requiring the Assignee to proceed against or claim payment
from any other party, or enforce any guarantee or security before
enforcing the Assignment.
17. SEVERABILITY
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).
18. RELEASE OF SECURITY
After the full and complete satisfaction of all Secured Obligations
or if so required by Swiss 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 it is obliged to do so.
Any release or discharge shall be null and void and without effect
if any payment received by the Assignee 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 Assignee to a third party; or
(c) proves not to have been effectively received by the Assignee;
and the Assignee shall be entitled to enforce this Agreement as if
such release or discharge had not occurred.
19. NOTICES AND THEIR LANGUAGE
19.1 NOTICES
All communications to be made hereunder shall be made in writing to
the following addresses:
If made to the Assignor: Solutia Europe ▇▇/▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Parc Scientifique-▇▇▇▇▇▇▇
rue Laid Bumiat 3
▇-▇▇▇▇ ▇▇▇▇▇▇▇-▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇
Att.: For the Attention of
Legal Department
Fax: ▇▇▇ (▇)▇ ▇▇▇ ▇▇▇▇
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EXECUTION VERSION
If made to the Assignee: KBC Bank NV
▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Att.: ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Fax: ▇▇▇ (▇)▇ ▇▇▇ ▇▇▇▇
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(es) with acknowledgement of receipt or when it has
been delivered to the addressee by registered mail;
(c) and, if a particular department or officer is specified as
part of its address details provided under this Clause 19.1,
if addressed to that department or officer.
19.2 LANGUAGE
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.
20. GOVERNING LAW
This Agreement shall be governed by the substantive laws of
Switzerland.
21. 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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EXECUTION VERSION
22. DELEGATION OF POWERS
The Assignee 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 Assignee in its absolute discretion may think
fit.
23. BENEFIT OF THIS AGREEMENT
This Agreement shall be binding on, and inure for the benefit of,
the Assignor and the Assignee and their respective successors and
assigns. The expressions Assignee and Assignor include their
respective successors, and, in the case of the Assignee, its
nominee or such other Person as may from time to time be appointed
Collateral Agent.
24. ASSIGNMENT
This Agreement shall be binding upon the parties hereto and their
respective successors in law. The Assignee shall be entitled to
assign or otherwise transfer any and all of its rights and duties
under this Agreement to third parties. The Assignor may not assign
or transfer any of its rights or obligations under this Agreement,
save prior agreement in writing of the Assignee.
25. EVIDENCE OF THE SECURED OBLIGATIONS OWING BY THE ASSIGNOR
A certificate by the Assignee as to the amount and the terms and
conditions of the Secured Obligations owing to the Assignee from
the Assignor is, prima facie evidence of the matters to which it
relates.
26. RESPONSIBILITY OF THE ASSIGNEE
(a) The Assignee shall not be responsible to any Noteholder for:
(i) the adequacy, accuracy or completeness of any recitals,
statements, representations or warranties contained in any
Subsidiary Guaranty or Collateral Document;
(ii) 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
(iii) 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 ▇▇ ▇▇▇▇ sur fonds de commerce) between
the Issuer and the Collateral Agent).
(b) 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).
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EXECUTION VERSION
SIGNATORIES
Made in three (3) originals, of which one will be held by the Assignor, one
will be held by the Assignee and one will be held by counsel to the ad hoc
committee of Noteholders, on 11 February 2004.
CARBOGEN AG,
AS ASSIGNOR
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Attorney
-----------------------------------
Name:
Title:
KBC BANK NV,
AS ASSIGNEE
/s/ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Head Operations & Accounting
-----------------------------------
Name:
Title:
16