Exhibit 4.5.40


 


Execution copy December 21,
2005


 


DEED OF DISCLOSED PLEDGE


 


OF


 


REGISTERED SHARES


 


between


 


STUURGROEP HOLLAND B.V.


 


as Pledgor


 


BNP PARIBAS


and


BNS AUTOMOBILE FUNDING B.V.


 


as Pledgees


 


and


 


HERTZ AUTOMOBIELEN NEDERLAND
B.V.


 


as Company


 


 






 





 


Strawinskylaan 1999


1077 XV Amsterdam


 






 


2005


 


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DEED OF PLEDGE ON REGISTERED SHARES


HERTZ AUTOMOBIELEN NEDERLAND B.V.


 


On this, the
twenty-first day of December two thousand and five, appeared before me,


 


Wijnand Hendrik
Bossenbroek, civil law notary in Amsterdam, the Netherlands:


 


1.             Thijs Paul Heino Olthoff, employed at my office at 1077 XV Amsterdam,
Strawinskylaan 1999, born in Hilversum on the twenty-fifth day of July nineteen
hundred and seventy-seven, acting for the purposes of this deed as the holder
of a written power of attorney from:


 


Stuurgroep Holland B.V., a private company with limited liability, incorporated under the laws
of the Netherlands, having its corporate seat at Amsterdam, the Netherlands
(address: 2132 WT Hoofddorp, Siriusdreef 34 – 36, the Netherlands, trade
register number 34056220), hereinafter referred to as: the “Pledgor”;


 


2.             Paul Cornelis Simon van der Bijl, employed at my office at 1077 XV
Amsterdam, Strawinskylaan 1999, born in Haarlemmermeer on the twenty-sixth day
of January nineteen hundred and eighty, acting for the purposes of this
deed as the holder of a written power of attorney from:


 


a.             BNS Automobile Funding B.V., a private company with limited liability, incorporated under the laws
of the Netherlands, having its corporate seat at Amsterdam, the Netherlands
(address: 1076 EE Amsterdam, Fred. Roeskesstraat 123, the Netherlands, trade
register number 34238138), hereinafter referred to as: “BNS”;
and


 


b.            BNP Paribas S.A., a
company incorporated under the laws of France, registered at Registre du
Commerce de Paris under number B662042449, with address in the Netherlands
(1017 BS Amsterdam, Herengracht 477, registered with the Dutch trade register
under number 33148246), hereinafter referred to as: “BNP”,
and jointly with BNS hereinafter referred to as: the “Pledgees”;


 


3.             Robin Alexander van Bokhorst, employed at my office at 1077 XV
Amsterdam, Strawinskylaan 1999, born in Curacao, the Netherlands Antilles, on
the eleventh day of September nineteen hundred and seventy-six, acting for
the purposes of this deed as the holder of a written power of attorney from:


 


Hertz Automobielen Nederland B.V., a private company with limited liability, incorporated under the laws
of the Netherlands, having its corporate seat at Amsterdam, the Netherlands
(address: 2132 WT Hoofddorp, Siriusdreef 34 – 36, the Netherlands, trade
register number 34049337), hereinafter referred to as: the “Company”.


 


WHEREAS


 


A.           the Pledgor has or will have payment
obligations towards BNS under or pursuant to the Loan Agreement entered into by
BNS as lender and the Pledgor 


 


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as borrower, dated on or about the twenty first day of December two
thousand five, (the “Loan Agreement”);


 


B.            the Pledgor has or will have payment
obligations towards BNP under or pursuant to the Bridge Facilities Agreement
(as hereinafter defined);


 


C.            the Pledgor has agreed to enter into this
Deed as security for the payment when due of the payment obligations referred
to under A. and B;


 


D.            The Pledgor, the Company and the Pledgees
acknowledge that BNS shall pledge its claims referred to under A. to BNP
Paribas as security for the Bridge Facilities Agreement, including, without
limitation, all accessory rights (afhankelijke rechten)
and all ancillary rights (nevenrechten)
which includes (its share in) the right of pledge contemplated in this Deed.


 


HAVE AGREED AS FOLLOWS


 


1.            DEFINITIONS
AND INTERPRETATION


 


1.1          Definitions


 


In this Deed:


 


	
  “Article”

  	
   

  	
  means an
  article of this Deed.

  
	
   

  	
   

  	
   

  
	
  “Bridge Facilities Agreement”

  	
   

  	
  means
  the senior bridge facilities agreement dated on or about the twenty first day
  of December two thousand and five between, among others, Hertz
  International, Ltd., the Borrowers (as defined therein), the Guarantors (as
  defined therein), BNP Paribas and The Royal Bank of Scotland Plc as Mandated
  Lead Arrangers, CALYON as Co-Arranger and BNP Paribas as Facility Agent and
  the other financial institutions named therein.

  
	
   

  	
   

  	
   

  
	
  “Principal Obligations”

  	
   

  	
  means
  all present and future monetary payment obligations (vorderingen
  tot voldoening van een geldsom) (whether actual or contingent and
  whether owed jointly or severally or in any other capacity whatsoever) of the
  Pledgor to the Finance Parties or any one or more of them under or pursuant to
  the Finance Documents (as defined in the Bridge Facilities Agreement).

  
	
   

  	
   

  	
   

  
	
  “Deed”

  	
   

  	
  means
  this deed of pledge of Share Collateral.

  
	
   

  	
   

  	
   

  
	
  “Default”

  	
   

  	
  has the
  meaning given to that term in the Bridge Facilities Agreement.

  
	
   

  	
   

  	
   

  
	
  “Depositary Receipt Rights”

  	
   

  	
  means
  the rights conferred by law on holders of depositary receipts for shares,
  issued with the relative company’s co-operation.

  
	
   

  	
   

  	
   

  
	
  “Enforcement Event”

  	
   

  	
  a
  default (verzuim) of the Pledgor with respect
  to the Secured Liabilities, within the meaning of Article 3:248 NCC,
  provided that an Event of 

  



 


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  Default
  has occurred which is continuing and has not been waived under the Bridge
  Facilities Agreement and has resulted in the Facility Agent serving a notice
  under Clause 21.19 (Acceleration and
  Cancellation) of the Bridge Facilities Agreement.

  
	
   

  	
   

  	
   

  
	
  “Event of Default”

  	
   

  	
  has the meaning given to that term in the
  Bridge Facilities Agreement.

  
	
   

  	
   

  	
   

  
	
  “NCC”

  	
   

  	
  means the Netherlands Civil Code.

  
	
   

  	
   

  	
   

  
	
  “New Shares”

  	
   

  	
  means any and all shares in the share
  capital of the Company that the Pledgor shall acquire after the date of this
  deed of pledge.

  
	
   

  	
   

  	
   

  
	
  “Parallel Debt”

  	
   

  	
  means the Parallel Debt as defined in
  Article 2.

  
	
   

  	
   

  	
   

  
	
  “Party”

  	
   

  	
  means a party to this Deed.

  
	
   

  	
   

  	
   

  
	
  “Secured Liabilities”

  	
   

  	
  means (i) with respect to BNS all
  present and future monetary payment obligations (vorderingen
  tot voldoening van een geldsom) (whether actual or contingent and
  whether owed jointly or severally or in any other capacity whatsoever) of the
  Pledgor to BNS under or pursuant to the Loan Agreement and (ii) with
  respect to BNP the Parallel Debt.

  
	
   

  	
   

  	
   

  
	
  “Share Collateral”

  	
   

  	
  means the Shares, the New Shares and all
  present and future rights related thereto, including but not limited to
  rights of dividend or of conversion, redemption, bonus, stock dividend,
  liquidation or dissolution proceeds, warrants, claims, options or otherwise.

  
	
   

  	
   

  	
   

  
	
  “Shares”

  	
   

  	
  means three thousand five hundred (3,500)
  registered ordinary shares in the share capital of the Company, with a
  nominal value of four hundred fifty euros (EUR 450) each, numbered 1 up to
  and including 3,500.

  
	
   

  	
   

  	
   

  
	
  “Voting Rights”

  	
   

  	
  means the voting rights, voting powers,
  consensual rights and other similar rights attaching to the Shares and the
  New Shares.

  



1.2          Interpretation


 


a.             Unless the context otherwise requires or unless otherwise defined in
this Deed, words and expressions defined in the Bridge Facilities Agreement
have the same meanings when used in this Deed.


 


b.             Words denoting the singular include the plural and vice versa. Words
denoting one gender include the other gender.


 


c.             The words “include”, “included” or “including” are used to indicate
that the matters listed are not a complete enumeration of all matters covered.


 


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d.             No provision of this Deed is to be interpreted adversely against a
Party solely because that Party was responsible for drafting that particular
provision.


 


e.             English language words used in this Deed intend to describe Netherlands
legal concepts only and the consequences of the use of those words in English
law or any other foreign law are to be disregarded.


 


f.              References in this Deed to the Finance Documents and the Loan Agreement
will be deemed to include references to these agreements as they may be varied,
amended, modified, novated or restated from time to time (including by way of
increase of the facilities made available under them or accession or retirement
or the parties to these agreements). Similarly, references in this Deed to
Secured Liabilities will be deemed to include any obligations which the Pledgor
may have to the respective Pledgees under or in connection with the Loan
Agreement or the Finance Documents as they may be so varied, amended, modified,
novated or restated from time to time.


 


2.            Parallel Debt


 


a.             The Pledgor hereby irrevocably and unconditionally undertakes to pay to
BNP an amount equal to the aggregate amount payable by the Pledgor in respect
of its Corresponding Obligations as they may exist from time to time. The
payment undertaking of the Pledgor to BNP under this Article 2 is
hereinafter to be referred to as the “Parallel
Debt”.


 


b.             The Parallel Debt of the
Pledgor will become due and payable (opeisbaar)
as and when one or more of the Corresponding Obligations of the Pledgor become
due and payable.


 


c.             Each of the Parties hereby acknowledges that:


 


i.              the Parallel Debt constitutes an undertaking, obligation and liability
of the Pledgor to BNP which is separate and independent from, and without
prejudice to, the Corresponding Obligations; and


 


ii.             the Parallel Debt represents BNP’s own separate and independent claim (eigen en zelfstandige vordering) to receive payment of the
Parallel Debt from the Pledgor it being understood, in each case, that pursuant
to subsection a. of this Article the amount which may become payable
by the Pledgor as its Parallel Debt shall never exceed the total of the amounts
which are payable under the Corresponding Obligations of the Pledgor.


 


d.             For the avoidance of doubt, the Parties confirm that in accordance with



 


5

















 


subsections
a. and c. of this Article the claim of BNP against the Pledgor in respect
of the Parallel Debt and the claims of anyone or more of the Finance Parties
against the Pledgor in respect of the Corresponding Obligations payable by the
Pledgor to such Finance Party do not constitute common property (gemeenschap) within the meaning of article 3:166 NCC
and that the provisions relating to common property shall not apply. If,
however, it shall be held that such claim of BNP and such claims of anyone or
more of the Finance Parties do constitute common property and the provisions
relating to common property do apply, the Parties agree that the Intercreditor
Agreement shall constitute the administration agreement (beheersregeling)
within the meaning of article 3:168 NCC.


 


e.             To the extent BNP irrevocably (onaantastbaar)
receives any amount in payment of the Parallel Debt of the Pledgor, BNP shall
distribute that amount among the Finance Parties that are creditors of the
Corresponding Obligations of the Pledgor in accordance with the applicable
provisions of the Intercreditor Agreement. Upon irrevocable receipt by BNP of any
amount so distributed to it (a “Received Amount”),
the Corresponding Obligations of the Pledgor to the relevant Finance Party or
Finance Parties shall be reduced by amounts totalling an amount (a “Deductible Amount”) equal to the Received Amount in the manner
as if the Deductible Amount were received as a payment of the Corresponding
Obligations on the date of receipt by that Finance Party of the Received
Amount.


 


3.            CREATION
OF PLEDGE ON SHARE COLLATERAL


 


3.1          Creation of pledge on Share
Collateral


 


As
security for the payment when due of the respective Secured Liabilities the
Pledgor agrees to create and hereby creates, as the case may be in advance (bij voorbaat), in favour of the Pledgees a
disclosed right of pledge (openbaar
pandrecht) on the Share Collateral. The Pledgees accept this right
of pledge, where appropriate in advance.


 


3.2          Ranking


 


If
the right of pledge purported to be created pursuant to Article 3.1 cannot
be first ranking as a result of an encumbrance created prior to the date of
this Deed over (part of) the Share Collateral, the right of pledge shall
nonetheless have been created pursuant to Article 3.1 with the highest
possible rank.


 


3.3          Common Property


 


The
right of pledge established in favour of the Pledgees pursuant to this Deed constitutes
common property (gemeenschap) within the meaning
of Article 3:166 NCC and the provisions relating to common property shall
apply. The Parties agree that the Intercreditor Agreement shall constitute the
administration agreement (beheersregeling)
within the meaning of Article 3:168 NCC.


 


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4.            INFORMATION
UNDERTAKING


 


4.1          Additional
information


 


At the Pledgees’
first reasonable request, the Pledgor must provide all information, evidence
and documents relating to the Share Collateral which the Pledgees may deem
necessary to exercise their rights under this Deed (including the enforcement
of their rights of pledge) and the perfection or protection of their security
on the Share Collateral. The Pledgor will upon reasonable notice allow each of
the Pledgees to inspect its books relating to the Share Collateral during
office hours (subject to the terms of the Bridge Facilities Agreement).


 


4.2          Attachments and Disputes of Share Collateral


 


The
Pledgor agrees to notify the Pledgees without delay of any attachment (beslag) levied on (part of) the Share
Collateral or any dispute with respect to (part of) the Share Collateral, if
the dispute would have a material adverse effect on the right of pledge created
under this Deed or the value of the Share Collateral.


 


5.            FURTHER
ASSURANCES


 


At the Pledgees’ first request, the Pledgor
agrees to execute any further encumbrances and assurances in favour of, or for
the benefit of the Pledgees, and do all acts and things as the Pledgees may
reasonably deem necessary to exercise their rights under this Deed (including,
following an Enforcement Event, the enforcement of their right of pledge) and
the perfection or protection of their security on the Share Collateral.


 


6.            REPRESENTATIONS
AND WARRANTIES


 


6.1          Representations and Warranties


 


The
Pledgor represents and warrants to the Pledgees that:


 


a.             the Pledgor has full, unencumbered legal title to the Shares and all
present and future rights related thereto and has full power to dispose (beschikkingsbevoegd) in respect thereof;


 


b.             the Shares constitute the entire issued share capital of the Company
and have all been validly issued and fully paid-up and no depository receipts (certificaten van aandelen) have been issued in respect of
the Shares;


 


c.             the Pledgor has the power and authority to create a first ranking right
of pledge (pandrecht eerste in rang) on the Shares
and all present and future rights related thereto;


 


d.             there are no outstanding options or other rights entitling the holder
thereof to the transfer of the Shares or any of the present and future rights
related thereto and no rights to receive future dividends with respect to any
of the Shares and/or any of the New Shares, have been granted to any party
other than to the Pledgees pursuant to this deed;


 


e.             except as provided herein, neither the Shares nor any of the present or



 


7

















 


future
rights related thereto are subject to any limited rights (beperkte
rechten), nor has the Pledgor prior to this deed of pledge created
limited rights or other rights on or against the Shares or any of the present
or future rights related thereto, nor has the Pledgor made any promise or any
undertaking to that effect, nor has any attachment (beslag)
been levied to date on the Shares or any of the present or future rights related
thereto;


 


f.              there are no outstanding claims on the Company for the issue of any
shares in the share capital of the Company.


 


6.2          Repetition


 


The
representations and warranties set out in Article 6.1 are deemed to be
repeated by the Pledgor on each date it acquires Share Collateral after the
date of this Deed.


 


7.            GENERAL UNDERTAKINGS


 


7.1          Disposal
and negative pledge


 


The
Pledgor shall not, without the prior written consent of the Pledgees, except as
permitted under the Bridge Facilities Agreement:


 


a.             sell, transfer or otherwise dispose of any of the Share Collateral;


 


b.             create or permit to subsist any security on any of the Share
Collateral;


 


c.             vote the Shares and the New Shares, whether in a meeting or by way of
written resolution outside a meeting, in favour of:


 


i.              the issuance, cancellation or transfer of any shares in the Company’s
share capital by the Company;


 


ii.             a resolution consenting to the acquisition by the Company of its own
shares;


 


iii.            any proposal to the general meeting of shareholders to transfer its
pertinent authority to issue shares to any other corporate body;


 


iv.           a resolution to amend the articles of association of the Company.


 


7.2          Obligation
of care


 


The
Pledgor shall not do or cause or permit to be done anything (including but not
limited to voting the Shares and the New Shares, whether in a meeting or by way
of written resolution outside a meeting) which will, or could be reasonably
expected to, materially adversely affect the right of pledge over the Share
Collateral or any part thereof, or the rights of the Pledgees thereunder or
which in any way is inconsistent with the terms of the Loan Agreement and/or
the Bridge Facilities Agreement or this Deed or materially depreciates,
jeopardises or otherwise prejudices the right of pledge over the Share
Collateral or any part thereof or negatively affects the economic value of the
Share Collateral.


 


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8.            VOTING
RIGHTS AND DEPOSITARY RECEIPT RIGHTS


 


8.1          Voting Rights


 


The
Voting Rights shall be vested in (toekomen aan)
the Pledgees, subject to the conditions precedent (opschortende
voorwaarden) – (the “Conditions”) – that an Enforcement Event has occurred
and that the Company and the Pledgor have been notified in writing by the
Pledgees that they wish to exercise the Voting Rights.


 


The
Company hereby confirms (and the Pledgor agrees) that a notice from the
Pledgees to it in accordance with this Article 8.1, shall be sufficient
for it to accept the Pledgees as being exclusively entitled to exercise the
Voting Rights attaching to the Shares and the New Shares.


 


8.2          Depositary Receipt Rights


 


Until
a notice as referred to in Article 8.1 has been sent, Depositary Receipt
Rights shall not accrue to the Pledgees.


 


9.            DIVIDENDS,
DISTRIBUTIONS AND OTHER PAYMENTS ON THE SHARE COLLATERAL


 


The
Pledgees shall be entitled to receive all dividends, distributions and other
payments on the Share Collateral, provided, however, that the Pledgees hereby
grant the Pledgor permission (toestemming)
within the meaning of Article 3:246(4) NCC to receive these payments,
to the extent such dividend payments are allowed under the Bridge Facilities
Agreement.


 


The
permission granted by the Pledgees to the Pledgor will automatically terminate
upon the occurrence of an Enforcement Event and a written notice thereof from
the Pledgees to the Pledgor and the Company, following which the Pledgees shall
be entitled to receive and retain all dividends, distributions and other
payments on the Share Collateral, to be applied by the Pledgees in accordance
with the applicable provisions of the Intercreditor Agreement.


 


10.          IMMEDIATE
FORECLOSURE


 


a.             After the occurrence of an Enforcement Event the Pledgees may sell or
cause the Share Collateral to be sold in accordance with Articles 3:248 NCC and following. The Pledgor waives its
rights under Article 3:251 NCC.


 


b.            To the extent such does not arise from Article 2:198(5) NCC,
the Pledgees are irrevocably authorised (without obligation) by the Pledgor, in
the event of a sale as referred to under a. of this Article, to offer the Share
Collateral for sale in the manner prescribed by the Company’s Articles of
association or to seek the approval of the corporate bodies designated under
the Company’s Articles of association as empowered to approve all proposed
transfers of shares, as the case may be, and to exercise any of  the Pledgor’s rights in connection with the sale and transfer of the
Share Collateral.


 


c.            The Pledgees are not obliged to:


 


9

















 


i.              first foreclose on other security rights created under or in connection
with the Loan Agreement and/or the Bridge Facilities Agreement. The Pledgor
waives its rights under Article 3:234 NCC; or,


 


ii.             notify any Pledgor or any other person referred to in Article 3:252
NCC of its intention to exercise, or of the exercise of, its rights under Article 10(a).
Each Pledgor waives its rights under Articles 3:249 and 3:252 NCC.


 


11.          APPLICATION
OF PROCEEDS


 


The
Pledgees shall apply the proceeds from the sale of the Share Collateral in accordance
with the applicable provisions of the Intercreditor Deed, subject to mandatory
provisions of Netherlands law.


 


12.          CONTINUING
SECURITY AND OTHER MATTERS


 


12.1        Continuing security


 


This
Deed extends to the ultimate balance from time to time of the Secured Obligations
and is a continuing security, notwithstanding any intermediate payment, partial
settlement or other matter.


 


12.2        No prejudice


 


Subject to Article 13,
this Deed does not intend to prejudice, limit or affect any right of BNP under
the Bridge Facilities Agreement or BNS under the Loan Agreement (or applicable
banking conditions) or the rights of the Pledgor thereunder and the Bridge
Facilities Agreement and Loan Agreement do not intend to prejudice, limit or
affect any right of the Pledgees or the Pledgor under this Deed.


 


12.3        Waiver


 


Without prejudice
to the other provisions of this Deed, the Pledgor waives its rights under
Articles 3:233 and 6:139 NCC.


 


13.          CONFLICT


 


If there
is a conflict between this Deed and the Bridge Facilities Agreement then (to
the extent permitted by law) the provisions of the Bridge Facilities Agreement
will take priority over the relevant provisions of this Deed.


 


14.          TERMINATION
AND RELEASE OF PLEDGE


 


14.1        The Pledgee shall release and, in respect of (b) at the request
and cost of the Parent release the right of pledge created by this Deed if any
of the following events occur:


 


a.             (i) the Secured Liabilities being discharged in full and none of
the Secured Parties being under any further actual or contingent obligation to
make advances or provide other financial accommodation to the Pledgor or any
other person under any of the Finance Documents; or (ii) the Pledgor
ceasing to be both a Borrower and a Guarantor subject to, and in accordance
with, the Bridge Facilities Agreement;


 


b.            (i) any Permitted Disposal of the Share Collateral; (ii) any
sale or other 


 


10

















 


disposition
of the Share Collateral otherwise permitted by the Bridge Facilities Agreement;
(iii) any sale or other disposition of the Share Collateral where the
Facility Agent or the Security Agent has consented to the disposal pursuant to
the Bridge Facilities Agreement; (iv) any sale or any other disposition of
the Share Collateral pursuant to a merger, consolidation, reorganisation,
winding-up, securitisation, Take-Out Financing, or sale and leaseback permitted
by the Bridge Facilities Agreement and to the extent necessary to ensure that
such merger, consolidation, reorganisation, winding-up, securitisation,
Take-Out Financing or sale and leaseback is completed; or (v) the creation
of any Encumbrance permitted by paragraph (x) of the definition of “Permitted
Encumbrances” under the Bridge Facilities Agreement, provided that, to the
extent that the disposal of the Share Collateral is a Permitted Disposal or a
sale or disposition otherwise permitted by the Bridge Facilities Agreement, the
Share Collateral shall be declared to be automatically released from the pledge
created by this Deed with effect from the day of such disposal and the Security
Agent and the Facility Agent shall each do all such acts which are reasonably
requested by the Parent in order to release such property.


 


14.2        The right of pledge on the Share Collateral and all the related rights
thereto may be cancelled (opgezegd) in
whole or in part by the Pledgees in accordance with Article 3:81 NCC.


 


15.          LIABILITY


 


The Pledgees are not liable to the Pledgor for any
loss or damage


 


arising from:


 


a.            any sale or collection of the Share Collateral by the Pledgees; or


 


b.             any exercise of, or failure to exercise, its rights under this Deed,


 


except for gross negligence or wilful misconduct (opzet of grove schuld) of the Pledgees.


 


16.          COSTS


 


A
Pledgee may charge reasonable costs and expenses in accordance with the Loan Agreement and/or the Bridge
Facilities Agreement.


 


17.          POWER
OF ATTORNEY


 


17.1        For the benefit of the Pledgees, the
Pledgor hereby irrevocably appoints each of the Pledgees to be its true and
lawful attorney (with full power of substitution and delegation) for and on
behalf of the Pledgor to sign, execute, seal, deliver, acknowledge, file,
register and perfect any and all such assurances, documents, instruments,
agreements, certificates and consents and to do any and all such acts and
things as the Pledgor itself could do in relation to the Share Collateral in
relation to any matters dealt with in this Deed and which the Pledgees may
reasonably deem to be necessary in order to give full effect to the purposes of
this Deed. Upon request of a Pledgee the Pledgor will 


 


11

















 


ratify and confirm whatever a Pledgee shall do or cause to be done in
pursuance of the powers conferred to it hereunder, for the duration of the
right of pledge created pursuant to this Deed.


 


17.2        In connection with the power of
attorney contained in this Article Parties agree that each of the Pledgees
may act as counterparty of the Pledgor, the Pledgor waives its rights pursuant
to Article 3:68 NCC, which waiver the Pledgees hereby accepts.


 


18.          GENERAL


 


18.1        No
Rescission


 


To the extent permitted by law, the Pledgor hereby
waives its rights under Articles 6:265 to 6:272 NCC inclusive to rescind (ontbinden), or demand in legal proceedings
the rescission (ontbinding) of,
this Deed, which waiver the Pledgees hereby accept.


 


18.2        Transfer of Legal Relationship


 


Subject
to the terms of the Bridge facilities Agreement, each of the Pledgees may transfer its legal relationship under
this Deed (contractsoverneming)
or assign its rights under this Deed (cessie).
The Pledgor irrevocably agrees in advance to cooperate with these assignments.


 


18.3        Notice


 


Any
notice or other communication under or in connection with this Deed must be
made in accordance with the Bridge Facilities Agreement.


 


18.4        Partial
Invalidity


 


In
the event that a provision of this Deed is invalid, illegal, non binding, or
unenforceable (either in whole or in part) under the law of any jurisdiction,
the remainder of this Deed continues to be effective to the extent that, in
view of the Deed’s substance and purpose, the remainder is not inextricably
related to and therefore inseverable from the invalid, illegal, non binding or
unenforceable provision. The Parties will make every effort to reach agreement
on a new Article which differs as little as possible from the invalid,
illegal, non binding or unenforceable provision, taking into account the
substance and purpose of this Deed.


 


18.5        Amendment


 


This
Deed may only be amended by a written agreement, to the extent required by
Netherlands law in the form of a notarial deed executed before a civil law
notary.


 


18.6        No Implied
Waiver, No “Rechtsverwerking”


 


a.             Any waiver under this Deed must be given by notice to that effect.


 


b.            Where a Party does not exercise any right under this Deed (which
includes the granting by a Party to any of the other Parties of an extension of
time in which to perform its obligations under any of these provisions), this
is not deemed to constitute a forfeiture of that Party’s right under this Deed
(rechtsverwerking).


 


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18.7        Benefit of Security


 


The
Pledgor and each of the Pledgees explicitly agree and declare that upon
transfer, assignment or pledge, of the respective Secured Liabilities, or a
part thereof, the transferee or pledgee will become entitled to the right of
pledge purported to be created hereunder, or to a corresponding part thereof,
as the case may be.


 


If
and to the extent as a result of such transfer, such assignment or a pledge,
the right of pledge purported to be created hereunder will constitute common
property, and an intercreditor agreement is agreed upon in relation to such
transfer, such assignment or a pledge, then the Pledgor will be bound to the
provisions of such intercreditor agreement.


 


18.8        Intercreditor
Deed


 


As between the
Pledgees only and subject to the Intercreditor Deed BNS will not exercise any
right under this Deed unless with the written consent of BNP and BNP shall be
entitled to instruct BNS to exercise its rights hereunder and to do all such
things as BNP may deem necessary in connection with this deed.


 


For this purpose
BNS hereby irrevocably appoints BNP to be its true and lawful attorney (with
full power of substitution and delegation) for and on behalf of BNS to sign,
execute, seal, deliver, acknowledge, file, register and perfect any and all
such assurances, documents, instruments, agreements, certificates and consents
and to do any and all such acts and things in relation to any matters dealt
with in this Deed and which BNP may reasonably deem to be necessary. Upon
request of BNP BNS will ratify and confirm whatever BNP shall do or cause to be
done in pursuance of the powers conferred to it hereunder.


 


19.          GOVERNING
LAW AND JURISDICTION


 


19.1        Governing
Law


 


This
Deed is to be governed by and construed in accordance with the laws of   the Netherlands.


 


19.2        Jurisdiction


 


Any
dispute arising out of or in connection with this Deed is to be submitted to
the exclusive jurisdiction of the competent court in Amsterdam, the
Netherlands. This Article 19.2 is for the benefit of the Pledgees only. As
a result, the Pledgees shall not be prevented from taking proceedings relating
to a dispute in any other courts with jurisdiction.


 


20.          MANNER
OF ACQUISITION


 


As
evidenced by the Company’s register of shareholders, the Shares were acquired
by the Seller pursuant to a contribution agreement on the eighth day of May nineteen
hundred and eighty.


 


Other
than the deed of incorporation of the Company and the aforementioned
shareholders register there is no other written evidence pertaining to the
legal basis for that acquisition. Under Article III (7) of the
transitional provision in 


 


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the
“Amendment of the rules governing the transfer of registered shares in
limited liability companies and private companies with limited liability”
(Bulletin of Acts and Decrees 1992, 458) (artikel III lid 7,
Overgangsbepaling van de Wet houdende wijziging van de regeling van de
overdracht van aandelen op naam in naamloze vennootschappen en besloten
vennootschappen met beperkte aansprakelijkheid (Staatsblad 1992, 458)),
however, any defect in the acquisition of the Shares cannot be invoked, since,
as evidenced by the Company’s register of shareholders, more than five years
have elapsed since the acquisition and the Company has always accepted the
transfer to the Seller as valid. The nominal value of each of the Shares was
converted into four hundred and fifty euros (EUR 450) by means of a deed
amending the Company’s articles of association executed on the twenty-first day
of December two thousand one before C.E.M. van Steenderen, civil law notary
at Rijswijk (ZH), the Netherlands.


 


21.          ACKNOWLEDGEMENT
AND COMPANY STATEMENTS


 


The
person appearing acting on behalf of the Company, declared:


 


a.             that the Company acknowledges, and where applicable acknowledges in advance,
the rights of pledge on the Share Collateral;


 


b.             that the Company has at all times and without interruption accepted as valid
the transfers by which the Pledgor acquired the Shares and all previous
transfers of the Shares;


 


c.             that the Company will cause the rights of  pledge on the Shares as well as any right of
pledge on New Shares to be duly entered in the shareholders’ register without
delay;


 


d.             that the Company acknowledges that it has received notice of the rights
of pledge to the extent such rights of pledge are created on (future) claims
against the Company in accordance with Article 3:236 (2) NCC  and Article 3:94 NCC; and


 


e.             that the Company shall act in accordance with the provisions of this
deed of pledge.


 


22.          APPROVAL
RIGHT OF PLEDGE AND PLEDGE OF SECURED LIABILITIES BY GENERAL MEETING OF
SHAREHOLDERS


 


The
Pledgor hereby in its capacity of sole shareholder of the Company resolves
(pursuant to Article 21 of the Company’s Articles of association) to
approve (i) the creation of the right of pledge on the Share Collateral (including
the conditional passing of the Voting Rights) under this Deed and (ii) the envisaged creation of a right of
pledge by BNS of the payment obligations referred to under A. of the Whereas
clause in favour of BNP as security for the Bridge Facilities Agreement,
including, without limitation, all accessory rights (afhankelijke
rechten) and all ancillary rights (nevenrechten)
which includes (its part in) the right of pledge contemplated in this Deed
(including the conditional passing of the Voting Rights). The
members of the Company’s 


 


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board
of management have had the opportunity to render advice as to the above resolution.


 


23.          AUTHORITY
AND POWER OF ATTORNEY


 


The
authorization granted to the persons appearing is evidenced by three private
powers of attorney, which immediately after the execution will be attached to
this Deed.


 


24.          CIVIL
LAW NOTARY


 


The
parties are aware that the undersigned civil law notary works with NautaDutilh
N.V., the firm that has advised BNP Paribas in this transaction. With reference to
the Code of Conduct (Verordening beroeps- en
gedragsregels) established by the Royal Notarial Professional
Organisation (Koninklijke Notariële Beroepsorganisatie),
the parties herewith explicitly agree and consent (i) that the civil law
notary shall  execute this notarial deed
and (ii) that BNP
Paribas is assisted and represented by NautaDutilh N.V. in
relation to the Loan Agreement and/or the Bridge Facilities Agreement and this
deed of pledge and any agreements that may be concluded, or disputes that may
arise, in connection therewith.


 


FINAL STATEMENT


 


The persons
appearing are known to me, civil law notary.


 


This Deed was
executed in Amsterdam on the date mentioned in its heading.


 


After I, civil
law notary, had conveyed and explained the contents of the Deed in substance to
the persons appearing, they declared that they had taken note of the contents
of the Deed, were in agreement with its contents and did not wish them to be
read out in full.


 


Following
a partial reading, the Deed was signed by the persons appearing and me, civil
law notary.


 




	
   

  	
  /s/ W.H. Bossenbroek

  






 


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