Bank Account Pledge
Agreement
( Convention de Nantissement de Comptes Bancaires
)
A cting in its capacity as
Pledgor
JPMORGAN
CHASE BANK, N.A.
J.P. MORGAN EUROPE
LIMITED
Dated as of 19 September, 2008
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NA PALI , a French société par
actions simplifiée , a company organized under the laws of
France, with a share capital of EUR 3 444 300 having its registered
office 162 rue Belharra 64500 St Jean de Luz, France, registered
with the Trade and Companies Registry of Bayonne, under number 331
377 036 R.C.S., represented by an authorised signatory, duly
authorized for the purposes hereof,
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hereinafter referred to as the
“ Pledgor ” (which term includes its
successors and assigns),
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J.P. MORGAN EUROPE
LIMITED, a
company acting through its office at 125 London Wall, London EC2Y
5AJ , United Kingdom and,
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JPMORGAN CHASE BANK, N.A. London
Branch a
company having its registered office at 125 London Wall, London
EC2Y 5AJ, United Kingdom
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hereinafter individually referred to
as the “ Beneficiary ” and collectively
referred to as the “ Beneficiaries ”
(which term includes their successors and assigns),
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SOCIÉTÉ
GÉNÉRALE , a company having its registered
office at 2 avenue du 11 novembre 1918, BP 315, 64 103 Bayonne
Cedex, France,
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hereinafter referred to as the
“ Account Bank ” (which term includes its
successors and assigns),
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hereinafter
individually referred to as a “ Party ”
or collectively as the “ Parties
”.
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(A)
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Pursuant to the terms of an issuance
and reimbursement agreement dated September 14, 2007 between
the Pledgor and J.P. Morgan Europe Limited (the “
Issuance and Reimbursement Agreement ”) and of
an application and agreement for irrevocable Standby Letter of
Credit signed between the Pledgor and JPMorgan Chase Bank, N.A.
dated September 2007 (the “ Application and
Agreement ”), as such documents may be amended,
varied, novated or supplemented, J.P. Morgan Europe Limited has
agreed to issue a Bank Guarantee (the “ Bank
Guarantee ”) in the amount of EUR 35.6 million
in order to secure the payment of the purchase price of 146.169
Pilot SAS shares sold by the Boix-Vives Family.
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(B)
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Pursuant to the terms of the
Issuance and Reimbursement Agreement and of the Application and
Agreement referred in (A) above, the Pledgor has agreed to
reimburse to the Beneficiaries any sum which may become payable by
any of them under the terms of the Bank Guarantee.
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(C)
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On
August 22, 2008, the Pledgor has entered into a receivables
financing agreement with GE Factofrance, pursuant to which the
Pledgor may obtain financing of up to EUR 100 Million in exchange
for the collateralization of all or substantially all of its trade
receivables (the “ Receivables Financing
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(D)
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As
a consequence of the entry into the receivables Financing, the
Pledgor has agreed to further secure its obligations under
paragraph (B) above and to pledge in favour of the
Beneficiaries, a bank account described below in which an amount of
EUR 35.6 million will be deposited by the Pledgor.
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It has been agreed as
follows:
Article 1.
— Definitions
and Interpretation
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1.1
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Terms defined in the Issuance and
Reimbursement Agreement
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All
the terms defined in the Issuance and Reimbursement Agreement and
used in this Agreement but not otherwise defined herein shall have
the same meaning in this Agreement as in the Issuance and
Reimbursement Agreement.
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1.2
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General
definitions
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The
following terms and expressions used in this Agreement and in the
Preamble of this Agreement shall, unless the context requires
otherwise, have the following meanings:
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“
Account Bank ”:
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means the bank
described in Exhibit 1 hereto, in the books of which the
Pledged Account is opened;
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“
Agreement ”:
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means the
present account pledge agreement together with the Exhibits hereto,
as the same may be amended, restated or supplemented or otherwise
modified from time to time;
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“
Beneficiaries ”:
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means JPMorgan
Chase Bank, N.A. and/or J.P. Morgan Europe Limited and its
respective successors and assigns;
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“
Business Day ”:
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means a day
(other than a Saturday or Sunday) on which banks are open for
general business in Paris, and London;
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“
Default ”:
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means the
occurrence of any “Event of Default” under and as
defined in the Issuance and Reimbursement Agreement;
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“
Pledge ”:
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means the
pledge ( nantissement ) over the Pledged Account created
hereby in favour of the Beneficiaries pursuant to the terms of this
Agreement;
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“
Pledged Account ”:
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means the
Société Générale Term Account ( Compte
à Terme ) described in Exhibit 1 and maturing on
December 10, 2008;
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“
Secured Obligations ”:
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means all
liabilities and obligations of the Pledgor to pay to the
Beneficiaries any sum payable to them under the terms of the
Issuance and Reimbursement Agreement or the Application and
Agreement in connection with the issuance of the Bank
Guarantee.
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1.3
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Interpretation
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The
words “hereof”, “herein”,
“hereto” and “hereunder” and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and Article and Exhibit references are to this Agreement
unless otherwise specified.
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The
meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
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The
Article headings used in this Agreement are for convenience of
reference only and are not to affect the construction hereof or be
taken into consideration in the interpretation hereof.
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Article 2.
— Grant of
Pledge over the Pledge Account
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2.1
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As
security for the punctual payment of the Secured Obligations when
due (whether at the stated maturity, by acceleration or otherwise)
and in accordance with Article 2355 et seq. of the
French Civil Code, the Pledgor hereby pledges in favor of the
Beneficiaries, by way of a pledge of account ( nantissement de
compte ), the Pledged Account and an amount of EUR 35.6 million
(thirty five million, six hundred thousand Euros) deposited in such
Pledged Account.
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2.2
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The
Pledgor hereby acknowledges that this Agreement shall constitute a
security for the prompt and complete payment and performance when
due (whether at the stated maturity, by acceleration or otherwise)
of the Secured Obligations to the Beneficiaries.
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2.3
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The
Beneficiaries, hereby accept the benefit of such pledge of
account.
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2.4
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Société Générale
intervenes to this Agreement in order to confirm that it is
informed of the terms of this Agreement and of the creation of the
Pledge over the Pledged Account in accordance with
Article 2362 of the French Civil Code.
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Article 3.
— Operation of
the Pledged Account Blocking
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3.1
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The
Pledged Account will remain blocked and, subject to paragraph 3.2
to 3.4 below, the Pledgor shall not be permitted to withdraw any
sum from the Pledged Account until all its obligations under the
Secured Obligations are fully performed and the Beneficiaries have
no further liability under the Bank Guarantee.
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3.2
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The
Pledgor will instruct the Account Bank not to accept any withdrawal
or debiting from the Pledged Account without the prior written
consent of J.P. Morgan Europe Limited; however the Pledgor will be
authorized to withdraw any amounts from the Pledged Account
provided that (i) following such withdrawal, the credit balance of
the Pledged Account is at least equal to EUR 35.6 million and,
(ii) no Default has occurred and is continuing at the time of
such withdrawal.
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3.3
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Until the release and discharge by
the Beneficiaries of the pledge created by this Pledge Agreement,
Société Générale will not allow the Pledged
Account to be debited by the Pledgor if after such withdrawal, the
credit balance of the Pledged Account is less than EUR
35.6 million or if it has been notified by any of the
Beneficiaries of a Default (and has not later been notified by such
Beneficiary that such Default is not continuing.
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3.4
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On
the maturity date of the Pledged Account ( i.e.
December 10, 2008), the proceeds of the Pledged Account will
be either (i) applied by Société Générale
to the payment of such subscription price of money market funds (
SICAV monétaires ) which will be pledged to the
Beneficiaries as described in Article 5.2 (v) or
(ii) if the Pledgor has not complied with the actions
described in Article&nb
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