Exhibit 10.8
PARENT Series A and Series B CPECs PLEDGE AGREEMENT
BY AND BETWEEN
BCP CRYSTAL HOLDINGS LTD. 2
as Pledgor
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Pledgee and Collateral Agent
and
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.,
as the Company
THIS PLEDGE AGREEMENT is dated April 6, 2004 and made by and between:
(1) BCP CRYSTAL HOLDINGS LTD. 2, a company organized under the laws of the
Cayman Islands, with registered office at c/o Walkers SPV Limited, ▇▇▇▇▇▇
House, PO Box 908 GT, ▇▇▇▇ Street, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands (the "Pledgor" or "BCP Crystal");
And
(2) DEUTSCHE BANK AG, NEW YORK BRANCH, the New York branch of a German banking
corporation, on its own behalf and as collateral agent for the benefit of
the Secured Parties (as defined below), (hereinafter the "Pledgee" or the
"Collateral Agent");
And
(3) BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A., a corporate partnership limited by
shares (societe en commandite par actions) incorporated under the laws of
the Grand-Duchy of Luxembourg, whose registered office is at ▇-▇▇, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and registered at the Luxembourg
Companies' Registrar under number B 96771 (hereinafter the "Company" or
"Parent") acting through its general partner and manager, BCP Caylux
Holdings Ltd 1, an exempted company governed by the laws of the Cayman
Islands with registered office at c/o Walkers SPV Limited, ▇▇▇▇▇▇ House, PO
Box 908 GR, ▇▇▇▇ Street, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman Islands ( the
"General Partner and Manager")
WHEREAS
A. The Company has as of the date hereof issued registered Series A
Convertible Preferred Equity Certificates (the "Series A CPECs") and
registered Series B Convertible Preferred Equity Certificates (the "Series
B CPECs");
B. The Pledgor owns all the Series A CPECs and all the Series B CPECs issued
by the Company;
C. The Pledgor, the Company, Celanese Americas Corporation ("CAC"), certain
other subsidiaries of the Pledgor from time to time party thereto as
borrowers under the Revolving Facility provided for in the Credit Agreement
(as defined below) (the "Subsidiary Revolving Borrowers" and together with
CAC and Parent, the "Borrowers"), the Lenders party thereto from time to
time (the "Lenders"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as global
coordinator, DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative agent and
as collateral agent for the Lenders, and DEUTSCHE BANK SECURITIES INC. and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as joint lead arrangers have entered
into a Credit Agreement dated as of April 6, 2004 as amended, supplemented,
waived or otherwise modified from time to time (the "Credit Agreement").
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D. The Lenders have agreed to extend credit to the Borrowers subject to the
terms and conditions set forth in the Credit Agreement. The obligations of
the Lenders to extend such credit are conditioned upon, among other things,
the execution and delivery of this Pledge Agreement. The Pledgor is the
majority limited partner of the Parent, will derive substantial benefits
from the extension of credit to the Borrowers pursuant to the Credit
Agreement and is willing to execute and deliver this Pledge Agreement and
to pledge all its CPECs (and for the avoidance of doubt the Collateral, if
different from the CPECs) in the Parent to secure any and all of the
Secured Obligations in order to induce the Lenders to extend such credit.
NOW, THEREFORE, the Pledgor hereby agrees with the Pledgee as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. Unless otherwise defined herein or the context otherwise requires,
capitalised terms used in this Pledge Agreement, including its preamble and
recitals, have the meanings provided in the Credit Agreement.
"CREDIT AGREEMENT" shall have the meaning as set out in the recitals hereto.
"CPECs" means all the convertible preferred equity certificates regardless of
class or series issued by the Company held by, to the order or on behalf of the
Pledgor at any time (including for the avoidance of doubt the Series A CPECs and
the Series B CPECs), including for the avoidance of doubt any CPECs or
securities of the Company which shall be issued to the Pledgor from time to
time, regardless of the reason of such issuance, whether by way of substitution,
replacement, interest, conversion or in addition to the CPECs held on the date
hereof, whether following an exchange, division, free attribution, conversion,
contribution in kind or in cash or for any other reason (the "Future CPECs"), in
which case such Future CPECs shall immediately be and become subject to the
security interest created hereunder (and be part of the CPECs).
"EVENT OF DEFAULT" has the meaning given to it by the Credit Agreement.
"HOLDINGS GUARANTEE" means the Guarantee and Pledge Agreement between Holdings,
each Intermediate HoldCo and the Collateral Agent.
"LOAN DOCUMENT OBLIGATIONS" means (a) the due and punctual payment by each
Borrower of (i) the unpaid principal of and interest (including interest
accruing during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding) on the Loans made to such Borrower, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by any Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon
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(including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) and obligations to provide cash collateral and
(iii) all other monetary obligations of any Borrower to any of the Secured
Parties under the Credit Agreement and each of the other Loan Documents,
including obligations to pay fees, expense and reimbursement obligations and
indemnification obligations, whether primary, secondary, direct, contingent,
fixed or otherwise (including monetary obligations incurred during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) and (b) the due
and punctual performance of all other obligations of the Borrowers under or
pursuant to the Credit Agreement, this Pledge Agreement, the Share Pledge
Agreement, the Holdings Guarantee and each of the other Loan Documents.
"PLEDGED COLLATERAL" the CPECs, the Future CPECs and any Related Assets.
"RELATED ASSETS" means all dividends, interest and other monies payable in
respect of the CPECs and all other rights, benefits and proceeds in respect of
or derived from the CPECs (whether by way of redemption, bonus, preference,
option, substitution, conversion or otherwise) except to the extent these
constitute CPECs.
"RIGHTS OF RECOURSE" means all and any rights, actions and claims the Pledgor
may have against (i) the obligors under the Credit Agreement or other Loan
Documents and (ii) any entity having granted security or given a guarantee for
such obligors' obligations under the Loan Documents (the "SECURITY GRANTOR")
arising under or pursuant to the enforcement of the present pledge including, in
particular, the Pledgor's right of recourse against the such obligors under the
terms of Article 2028ff. of the Civil Code (including, for the avoidance of
doubt, any right of recourse prior to enforcement), or any right of recourse by
way of subrogation or any other similar right, action or claim under any
applicable law.
"SECURED OBLIGATIONS" means (a) the Loan Document Obligations, (b) the due and
punctual payment and and performance of all obligations of the Pledgor owing to
the Secured Parties under and pursuant to this Pledge Agreement, the Parent
Share Pledge Agreement, (c) the due and punctual payment and performance of all
the obligations of the Pledgor under and pursuant to the Holdings Guarantee (d)
the due and punctual payment and performance of all obligations of any Borrower
under each Swap Agreement that (i) is in effect on the Closing Date with a
counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date
or (ii) is entered into after the Closing Date with any counterparty that is a
Lender or an Affiliate of a Lender at the time such Swap Agreement is entered
into, and (e) the due and punctual payment and performance of all obligations of
any Borrower and any of its subsidiaries in respect of overdrafts and related
liabilities owed to a Lender or any of its Affiliates and arising from cash
management services (including treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management arrangements).
"SECURED PARTIES" means (a) the Lenders (and any Affiliate of a Lender to which
any
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obligation referred to to in clause (d) and (e) of the definition of the term
"Secured Obligations" is owed), (b) the Administrative Agent and the Collateral
Agent, (c) each Issuing Bank, (d) each counterparty to any Swap Agreement
entered into with a Loan Party the obligations under which constitute Secured
Obligations, (e) the beneficiaries of each indemnification obligation undertaken
by any Loan Party under any Loan Document and (f) the successors and permitted
assigns of each of the foregoing.
"SHARES" means limited partners' shares regardless of class in the share capital
of the Company.
"SHARE PLEDGE AGREEMENT" means the share pledge agreement under Luxembourg law
between inter alia the Pledgor and the Collateral Agent.
1.2. Nothing in this Agreement shall be construed as limiting any of the
rights and remedies under the Credit Agreement, unless expressly set
forth herein.
1.3. The rules of construction specified in Section 1.02 of the Credit
Agreement also apply to this Pledge Agreement.
1.4. For the avoidance of doubt, whenever in this Pledge Agreement any of
the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all rights and
obligations of the Pledgor (or anyone thereof) or the Pledgee that are
contained in this Pledge Agreement shall bind and inure to the benefit
of their respective successors and assigns.
1.5. Headings and the Index used herein are for convenience of reference
only and are not to affect the construction of, or to be taken into
consideration in interpreting, this Pledge Agreement
2. PLEDGE
2.1 As continuing security for the due and punctual performance, and the
payment when due and discharge, of the Secured Obligations, the Pledgor
hereby pledges as a first priority pledge to the Pledgee, who accepts,
any and all of its CPECs in the Company of whatever nature, existing or
to be acquired by the Pledgor and owned by the Pledgor (including for
the avoidance of doubt, any Future CPECs) (the "Pledged CPECs") and the
Pledgor hereby grants to the Pledgee, a first ranking security on such
Pledged CPECs and in all proceeds thereof in respect of or in exchange
or replacement for the Pledged CPECs (the "Pledge") as collateral
security for the prompt and complete payment and discharge of the
Secured Obligations and transfers the Pledged CPECs by way of security
(gage) (pursuant to article 114(3)(c) of the Commercial Code) to the
Pledgee.
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2.2 The Pledgee accepts the Pledge and transfer by way of security (gage)
and the Company acknowledges and accepts the Pledge for purposes of
article 1690 of the Luxembourg Civil Code and article 114 of the
Commercial Code.
2.3 The Pledgor shall simultaneously herewith, or in the case of CPECs
issued to the Pledgor after the date hereof (i.e. any Future CPECs),
immediately upon the issue thereof to the Pledgor procure the
inscription of the Pledge and the transfer by way of security (gage) in
accordance with article 114 (3) (c) of the Commercial Code in favour of
the Pledgee in the register of CPECs holders of the Company and provide
the Pledgee with a written confirmation from the Company (together with
a certified copy of the relevant pages in the register) that these
inscriptions have been duly made. For the avoidance of doubt the
Pledgor and the Pledgee hereby request and instruct the Company to
immediately register the Pledge in the register of CPECs holders of the
Company.
Without prejudice to the above provisions, the Pledgor hereby
irrevocably authorises and empowers the Pledgee to cause any formal
steps to be taken by the General Partner and Manager of the Company for
the purpose of further perfecting the present Pledge and, for the
avoidance of doubt, undertake to take any such steps itself if so
directed by the Pledgee. In particular, should any such steps be
required in relation to Future CPECs of the Company or Related Assets,
the Pledgor undertakes to take any such steps immediately upon issuance
or receipt of such Future CPECs of the Company or Related Assets, and,
where possible, to instruct the Company to take any such steps, without
prejudice to the right of the Pledgee pursuant to the first sentence
hereof.
2.4 For the avoidance of doubt, in the event of a conversion of CPECs into
Shares of the Company, the Pledge on such CPECs shall remain effective
and be transferred automatically onto the Shares issued therefore.
The Pledgor shall simultaneously with such conversion procure the
inscription of the Pledge on the Shares issued upon conversion and the
transfer by way of security in favour of the Pledgee in the register of
shareholders of the Company and provide the Pledgee with a written
confirmation from the Company (together with a certified copy of the
relevant page in the register) that this inscription has been duly
made. For the avoidance of doubt the Pledgor and the Pledgee hereby
request and instruct the Company to immediately register the Pledge on
the Shares issued upon conversion in the register of shareholders of
the Company.
2.5 The Pledgor, the Pledgee and the Company jointly instruct the General
Partner and Manager of the Company and Me ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Me
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇), each acting without the
other and with full power of substitution, as proxy to register the
Pledge and to inscribe the Pledge in favour of the Pledgee in the
register of CPECs holders of the Company (or in the case of clause 2.3
the register of shareholders in which case the text shall be adapted
mutatis mutandis).
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The text to be used for the inscription shall be the following with the
indications:
"Pursuant to the Parent Series A and Series B CPECs Pledge Agreement
dated [ ] 2004 between BCP Crystal Holdings Ltd 2 as Pledgor, Deutsche
Bank AG, New York Branch as Pledgee and the Company, BCP Crystal
Holdings Ltd 2has pledged and transferred by way of security pursuant
to article 114.3(c) of the Commercial Code, all its right, title,
interest and benefit, present and future, on, to and under all of its
[Series A/B] CPECss (as well as any Future CPECs) and all its right,
title, interest and benefit, present and future, in and to all proceeds
which may from time to time and at any time be distributed or derived
from, or accrue on or arise in respect of or related to said CEPCss, as
first ranking security to Deutsche Bank AG, New York Branch (on its on
behalf and as collateral agent for the benefit of the Secured Parties).
[Signature]"
2.6 This Pledge shall be in addition to and independent of any other
pledge, guarantee, or other security given in respect of the Secured
Obligations.
2.7 The Pledge created hereby shall not be affected in any way by any
variation, amendment, extension, waiver, compromise or release of any
or all of the Secured Obligations, the Credit Agreement, the Holdings
Guarantee, the Parent Share Pledge Agreement, any Loan Document, or of
any security from time to time therefore. To the extent it can be
avoided by any action of the Pledgor or otherwise, the Pledge created
herein shall no be affected by any change in the laws, rules or
regulations of any jurisdiction or by any present or future action of
any governmental authority or court.
2.8 The Pledgor shall forthwith, upon execution hereof, deposit with the
Pledgee all certificates and documents of title to the CPECs, if any.
3. RIGHTS ATTACHING TO THE CPECs
3.1. Until the occurrence of an Event of Default and that is continuing (as,
for the avoidance of doubt, defined in the Credit Agreement), and
following a notice being issued by the Collateral Agent in accordance
with clause 6 below, any powers (including any voting powers, if any)
in respect of the Pledged CPECs shall, as from the date of this Pledge
Agreement be exercised on all matters by the Pledgor, provided however,
(i) that the Pledgor shall only exercise such right in a manner which
does not adversely affect the Pledge and the rights of the Pledgee
hereunder, (ii) that no consent, waiver or ratification given or action
taken, which could reasonably be expected to materially and adversely
affect the rights of the Pledgee, the rights of remedies of the
Collateral Agent under this Agreement, the Credit Agreement or any
other Loan Document or the ability of the Pledgee to exercise the same
and (iii) that the CPECs (or any part or number thereof) may only be
converted into Shares with the prior written approval of the Pledgee.
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3.2. The Pledgee shall receive a copy of any CPECs holder notifications,
notices or information and the Company undertakes to provide the
Pledgee therewith in good time (and in any event no later than the same
is provided for the Pledgor or any other CPECs holders).
3.3. After an Event of Default shall have occurred and is continuing and
following a notice being issued by the Collateral Agent in accordance
with clause 6 below, any powers attaching to the CPECs shall be
exercised by the Pledgee in such manner as he sees fit subject to
complying with any applicable formalities provided for by law. For the
avoidance of doubt, the Pledgee shall have the right following the
occurrence and continuation of an Event of Default to act as the
Pledgor's irrevocable proxy and for as long as there are any Secured
Obligations outstanding, to represent the Pledgor at any CPECs holder's
meeting and exercise the voting rights in any manner the Pledgee
reasonably deems fit for the purpose of protecting or enforcing the
rights of the Pledgee hereunder. The Pledgor shall do whatever is
necessary in order to ensure that the exercise of the voting rights in
these circumstances is facilitated and becomes possible for the
Pledgee, including but not limited to the issuance of a written proxy
in any form required by applicable law.
3.4. Without limiting the forgoing, after an Event of Default shall have
occurred and be continuing, the Pledgor shall take any steps required
or appropriate to convert all or part of the CPECs into Shares if so
requested or directed by the Security Agent.
3.5. The Pledgor and the Company hereby expressly acknowledge that the
Pledgee shall, following the occurrence and continuation of an Event of
Default and following a notice being issued by the Collateral Agent in
accordance with clause 6 below, pursuant to and in accordance with
Section 3.3 be unconditionally authorised to exercise any voting rights
attached to the Pledged CPECs in any manner necessary or useful for the
purposes of ensuring the complete satisfaction of the obligations under
the Credit Agreement and the Pledgor and the Company hereby waives any
claim the Pledgor or the Company may have in this respect, in
particular with respect to any liability of the Pledgee, except in
cases of wilful misconduct or gross negligence of the Pledgee.
3.6. Upon the occurrence of an Event of Default and that is continuing and
following a notice being issued by the Collateral Agent in accordance
with clause 6 below, all rights to future interest and other future
cash proceeds receivable in connection with the Pledged CPECs shall
automatically be transferred to the Pledgee.
4. RIGHTS OF THE PLEDGEE, LIABILITY, INDEMNIFICATION
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4.1. The Pledgee shall not be liable for any failure to collect or realize
the Secured Obligations or any collateral security or guarantee
therefor, or any part thereof, or for any delay in so doing nor shall
the Pledgee be under any obligation to take any action whatsoever with
regard thereto.
4.2 The Pledgor agrees that the Pledgee shall be entitled to reimbursement
of its expenses incurred hereunder as provided for in Section 9.05 of
the Credit Agreement.
4.3 Without limitation of its indemnification obligations under the other
Loan Documents, the Pledgor agrees to indemnify the Pledgee and the
other Indemnitees (as defined in Section 9.05 of the Credit Agreement)
against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable
counsel fees, taxes, charges and disbursements, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a
result of, (i) the execution, delivery or performance of this Pledge
Agreement or any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the
consummation of the Transaction and other transactions contemplated
hereby, (ii) the use of proceeds of the Loans or the use of any Letter
of Credit or (iii) any claim, litigation, investigation or proceeding
relating to any of the foregoing, or to the Pledged Collateral, whether
or not any Indemnitee is a party thereto; provided that such indemnity
shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses result
primarily from the gross negligence or willful misconduct of such
Indemnitee (treating for the purpose of this paragraph 4.3 any Secured
Party and its Related Parties as a single Indemnitee).
4.4 Any such amounts payable as provided hereunder shall be additional
Secured Obligations hereunder. The provisions of this Section 4 shall
remain operative and in full force and effect regardless of the
termination of this Pledge Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of
any of the Secured Obligations, the invalidity or unenforceability of
any term or provision of this Agreement or any other Loan Document, or
any investigation made by or on behalf of the Collateral Agent or any
other Secured Party. All amounts due under this Section 4 shall be
payable on written demand therefore accompanied by a reasonably
detailed computation of the amounts so paid.
5. REMEDIES IN CASE OF A DEFAULT
5.1. Upon the occurrence of an Event of Default and during its continuation,
the Pledgee may, without any demand, advertisement or notice of any
other kind, other than the notice specified in clause 6 below, but
without notice to any other person in addition to any other remedies
provided for under this Agreement or by law, realize the Pledged
Collateral in the most favourable manner provided for by Luxembourg law
or any part thereof with the right for the Pledgee:
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(i) to acquire title to the Pledged Collateral following request addressed
to the competent Luxembourg court, following appraisal made by experts,
as provided for under article 117 of the Luxembourg Code de Commerce;
(ii) in respect of such Pledged Collateral which constitutes securities
(including transferable securities) listed on a stock exchange or dealt
in on one of the markets defined by article 118 of the Luxembourg Code
de Commerce, either to cause the sale thereof on the stock exchange or
on the aforesaid market through the intermediary of a person whom it
may designate, or to appropriate such Pledged Collateral at the
prevailing market value;
(iii) in respect of any Pledged Collateral not listed or quoted on a stock
exchange nor dealt in one of the markets defined by article 118 of the
Luxembourg Code the Commerce to cause the sale thereof at a stock
exchange by public auction held by a public officer designated by the
Pledgee; and
(iv) in respect of any Collateral consisting of claims for sums of money, if
a sum is owed by itself or the Secured Parties, to set off the amount
due by the Company and the amount due by it or the Secured Parties and,
if the sum is owed by a third party, to require that third party to
make payment of the amount due by such third party directly to it, upon
maturity of the third party debt.
5.2. The Collateral Agent shall promptly apply the proceeds, moneys or
balances of any realisation of the Pledged Collateral (or any part
thereof), as well as any Pledged Collateral consisting of cash, as
follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent and the Collateral Agent in connection with such
realisation or otherwise in connection with this Pledge Agreement, any
other Loan Document or any of the Secured Obligations, including all
court costs and the fees and expenses of its agents and legal counsel,
the repayment of all advances made by the Administrative Agent and the
Collateral Agent hereunder or under any other Loan Document on behalf
of any Guarantor (as defined in the Holdings Guarantee) or Pledgor and
any other costs or expenses incurred in connection with the exercise of
any right or remedy hereunder or under any other Loan Document;
SECOND, to the payment in full of the Secured Obligations (the amounts
so applied to be distributed among the Secured Parties pro rata in
accordance with the respective amounts of the Secured Obligations owed
to them on the date of any such distribution);
THIRD, once all the Secured Obligations have been paid in full, to the
Pledgor, its successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
5.3. The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with
this Pledge Agreement.
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6. FORMAL NOTICE
Upon the occurrence of an Event of Default and during its continuation, the
Pledgee may, after having formally given 3 business days' written notice to the
Pledgor and to the Company either by registered mail, by hand delivery or by
special courier service (such as DHL, TNT, Worldcourrier, etc.), realise the
Pledged Collateral.
For the purpose of the preceding paragraph, a business day shall be a day where
banks are open for business in Luxembourg.
7. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
The Pledgor represents and warrants to the Pledgee that:
7.1. it is the legal and beneficial owner of, and has good and marketable
title to, its Pledged CPECs and that the Pledged CPECs are not subject
to any encumbrance, charge, pledge or other security save as to Liens
permitted pursuant to Section 6.02 (d), (e) or (q) of the Credit
Agreement and except for the security created by this Pledge Agreement
and have not been transferred in any way whatsoever;
7.2. it has full power and authority to pledge all its Pledged CPECs
pursuant to this Pledge Agreement;
7.3. there are no prior agreements purporting to grant to any third party
any encumbrance on the Pledged Collateral or to transfer the Pledged
Collateral;
7.4. the Pledge over the Pledged CPECs and the inscription thereof in the
register of CPECs holders of the Company pursuant to this Agreement is
not contrary to any court order applicable to the Pledgor or the
Company and is not in breach of any agreement to which the Pledgor is a
party;
7.5. the Pledge created pursuant to this Agreement constitutes a "first
priority" security interest over the Pledged CPECs (gage sur actions)
not subject to any other security interest or attachment or any other
kind of encumbrance save as may be permitted pursuant to Section 6.02
(d), (e) or (q) of the Credit Agreement;
7.6. all necessary consents and authorizations for the execution of this
Pledge Agreement have been obtained by the Pledgor and are in full
force and effect;
7.7. the Pledged CPECs are not subject to any transfer restrictions (other
than pursuant to the present Pledge Agreement);
7.8. all the Pledged CPECs are duly issued and fully paid-up and are in
registered form; and
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7.9. the Pledged CPECs are not subject to any option to purchase or similar
rights of any person.
Notwithstanding the foregoing, no Liens shall be permitted to exist, directly or
indirectly, on Pledged Collateral, other than Liens in favour of the Collateral
Agent and Liens permitted by Section 6.02 (d), (e) or (q) of the Credit
Agreement.
8. NO DISPOSITION, ETC.
8.1. The Pledgor agrees that, without the prior written consent of the
Pledgee, it will not sell, assign, transfer, exchange, or otherwise
dispose of, or grant any option with respect to, the Pledged Collateral
(or any part thereof) except that no such consent shall be required in
the case of transfers permitted under the Credit Agreement provided
however that in each such case the transferee shall prior to such
transfer have acknowledged this Pledge in writing and shall have agreed
to assume, jointly with the transferring Pledgor, all obligations of
the Pledgor hereunder including those arisen and not satisfied prior
the date of the transfer, nor will it create, incur or permit to be
created or exist any encumbrance (save as may be permitted pursuant to
Section 6.02 (d), (e) or (q) of the Credit Agreement or with the prior
and express written approval of the Pledgee) by contract or otherwise
with respect to any of the Collateral, or any interest therein, or any
proceeds thereof, except for the security provided for by this Pledge
Agreement.
8.2. The Company notes and acknowledges the above and confirms that it shall
not register any transfers or encumbrances of the Pledged CEPCs (or
other part of the Pledged Collateral) (other than pursuant to this
Pledge Agreement), except with the prior written consent of the
Pledgee.
9. PRESERVATION OF SECURITY, RELEASE
9.1. This Pledge Agreement and the pledge constituted hereby shall terminate
on the earlier of (x) the first date when all the Secured Obligations
have been indefeasibly paid in cash and the Lenders have no further
commitment to lend under the Credit Agreement, the Revolving L/C
Exposure has been reduced to zero and each Issuing Bank has no further
obligations to issue Letters of Credit under the Credit Agreement and
(y) the Restructuring Date provided that prior to any termination
pursuant to this clause (y), all the equity interests in US Holdco
shall have been pledged in favor of the Pledgee (A) by the Pledgor to
the extent it is the direct parent of US Holdco or (B) the Company if
it is the direct parent of US Holdco, in either case pursuant to a
pledge agreement governed by New York law in form and substance
satisfactory to the Pledgee.
9.2. Following the termination of this Pledge Agreement pursuant to clause
9.1 above, the Pledgee shall as soon as practicable, at the request and
cost of the Pledgor, take
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whatever action is necessary to release or otherwise discharge the
Pledged Collateral from the security constituted by this Pledge
Agreement. Any execution and delivery of documents pursuant to this
clause 9 shall be without recourse to or warranty by the Pledgee.
9.3. The Pledge shall be cumulative, in addition to, and independent of
every other security which the Pledgee or the Secured Parties may at
any time hold as security for the Secured Obligations or any rights,
powers and remedies provided by law and shall not operate so as in any
way to prejudice or affect or be prejudiced or affected by any security
interest or other right or remedy which the Pledgee or the Secured
Parties may now or at any time in the future have in respect of the
Secured Obligations.
9.4. This Pledge shall not be prejudiced by any time or indulgence granted
to any person, or any abstention or delay by the Pledgee or any of the
Secured Parties in perfecting or enforcing any security interest or
rights or remedies that the Pledgee or the Secured Parties may now or
at any time in the future have from or against the Pledgor or any other
person having granted security for the Secured Obligations
9.5. The Pledgor herby waives any right it may have to first require the
enforcement of any other right, security or guarantee before the
enforcement of this Pledge.
9.6. No failure on the part of the Pledgee to exercise, or delay on its part
in exercising, any of its rights under this Pledge Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise
of any such right preclude any further or other exercise of that or any
other rights
9.7. The liability and obligations of the Pledgor hereunder will not be
affected by an act, omission or circumstance occurring after the
signature hereof which, but for this provision, would release or
prejudice any of its obligations hereunder in whole or in part
including without limitation:
9.7.1. any time or waiver granted to, or composition with the Pledgor,
or any other person; or
9.7.2. the taking, variation, compromise, exchange, renewal or release
or refusal or neglect to perfect, take up or enforce, any
rights or remedies against, or security over assets of the
Pledgor; or
9.7.3. any incapacity or lack of powers, authority or legal
personality of the Pledgor; or
9.7.4. any amendment to, or any variation, waiver or release of, any
Secured Obligation or of the obligations of any obligor under
any other Loan Document; or
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9.7.5. any failure to take, or fully to take, any security
contemplated by the Loan Document or otherwise agreed or
contemplated to be taken in respect of the Secured Obligations;
or
9.7.6. any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of the Secured Obligations; or
9.7.7. any other act, event or omission which, but for this clause
8.6, might operate to discharge, impair or otherwise affect any
of the obligations of the Pledgor contained in this Pledge
Agreement, the rights, powers and remedies conferred upon the
Secured Parties by this Pledge Agreement, the Pledge or by law.
9.8. For the avoidance of doubt, all rights of the Pledgee hereunder, the
security interest in the Pledged Collateral and all obligations of the
Pledgor hereunder shall be absolute and unconditional irrespective of
(a) any lack of validity or enforceability of the Credit Agreement, any
other Loan Document, any agreement with respect to any of the Secured
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Secured Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, any other Loan Document, or any other agreement or
instrument, (c) any exchange, release or non-perfection of any other
lien on other collateral, or any release or amendment or waiver of or
consent under or departure from any guarantee, securing or guaranteeing
all or any of the Secured Obligations or (d) any other circumstance
that might otherwise constitute a defence available to, or a discharge
of, the Pledgor in respect of the Secured Obligations or this Pledge
Agreement.
9.9. This Pledge Agreement and the Pledge created hereby shall remain in
full force and effect despite any amalgation, merger, split or similar
operation affecting the Pledgee (and for the avoidance of doubt the
Pledgor) and any reference to the Pledgee includes a reference to any
successor or assignee or any person which assumes the rights and
obligations of the Pledgee hereunder or under the Credit Agreement
(including for the avoidance of doubt in the case of transfer, novation
or otherwise).
9.10. For the purpose of article 1278 of the Civil Code and without prejudice
to this clause the Pledgee expressly reserves the Pledge in the case of
assignment, novation, amendment or transfer of the Secured Obligations
or any rights under the Credit Agreement or any other Loan Document. In
addition and for the avoidance of doubt, the Pledgor hereby waives any
rights arising for it now or in the future (if any) under Article 2037
of the Luxembourg Civil Code.
10. COVENANTS
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10.1 The Pledgor covenants to the Pledgee that it shall act in good faith to
maintain and exercise its rights in the Company, and in particular
shall not knowingly take any steps nor do anything which could be
reasonably expected to materially and adversely affect the rights of
the Pledgee, the rights of remedies of the Collateral Agent under this
Agreement, the Credit Agreement or any other Loan Document or the
ability of the Pledgee to exercise the same or adversely affect the
existence of the security interest created hereunder or the value
thereof or result in the violation of any of the provisions of the
Credit Agreement.
10.2. The Pledgor shall cooperate with the Secured Party and sign or cause to
be signed all such further documents and take all such further action
as the Secured Party may from time to time reasonably request to
perfect and protect this Pledge and to carry out the provisions and
purposes of this Pledge Agreement and save as may be permitted pursuant
to Section 6.02 (d), (e) or (q) of the Credit Agreement.
10.3. The Pledgor is, and will be, the sole owner of its Pledged CPECs free
from any encumbrance, except as created in favour of the Secured
Parties by this Pledge Agreement.
11. FURTHER ASSURANCES
The Pledgor irrevocably appoints the Pledgee to be its attorney and in
its name and on its behalf to execute, deliver and perfect all
documents and do all things that the Secured Party may consider to be
requisite for (a) carrying out any obligation imposed on the Pledgor
under this Pledge Agreement which the Pledgor has failed to carry out
or (b) perfecting or maintaining the security interest created
hereunder. The Pledgor shall ratify and confirm all things done and all
documents executed by the Pledgee in the exercise of that power of
attorney.
12. COUNTERPARTS
This Pledge Agreement may be executed in counterparts (and by different parties
hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract.
Delivery of an executed counterpart of a signature page to this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Pledge Agreement.
13. SEVERABILITY
Any provision of this Pledge Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such
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prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
14. NO WAIVER; CUMULATIVE REMEDIES
For the avoidance of doubt, the Pledgee shall not by any act, delay, omission or
otherwise be deemed to have waived any of its rights or their remedies hereunder
and no waiver shall be valid unless in writing, signed by or on behalf of the
Pledgee, and then only to the extent therein set forth. A waiver by or on behalf
of the Pledgee of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which the Pledgee would otherwise have
on any future occasion. No failure to exercise nor any delay in exercising on
the part of the Pledgee, any right, power or privileges hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or privilege. The rights and remedies
herein provided are cumulative and may be exercised singly or concurrently, and
are not exclusive of any rights or remedies provided by law.
15. WAIVERS, AMENDMENTS
Neither this Pledge Agreement nor any terms or conditions hereof may be amended,
changed, waived, discharged, terminated or otherwise modified unless such
amendment, change, waiver, discharge, termination or modification is in writing
and is otherwise in accordance with the terms of this Pledge Agreement. None of
the terms or provisions of this Pledge Agreement may be waived, altered,
modified or amended except by an instrument in writing, duly executed by or on
behalf of the Pledgee and the Pledgor.
16. ASSIGNMENT
The Pledgor may not assign or transfer all or any part of its rights or
obligations hereunder except with the express written consent of the Pledgee.
The Pledgee may assign all or any of its respective rights hereunder with the
consent of the Pledgor, which consent shall not be unreasonably withheld and any
successor to or assignee of the Pledgee shall be entitled to the full benefits
hereof. In the event of an assignment by the Pledgor with the express written
consent of the Pledgee any assignee or successor of the Pledgor shall assume,
jointly with the assigning Pledgor or the Pledgor it succeeds, as the case may
be, all obligations of the Pledgor hereunder including those arisen and not
satisfied prior the date of the assignment or succession thereto.
17. RIGHTS OF RECOURSE
17.1. The Pledgor hereby formally waives and renounces to exercise any Rights
of Recourse or any other rights it may have against any obligor or
Security Grantor pursuant to the Credit Agreement or other Loan Documents
in any manner (including for the avoidance
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of doubt, by way of provisional measures such as provisional attachment
("saisie-arret conservatoire") or by way of set-off.
17.2. The Pledgor acknowledges that this waiver is of essence for the Pledgee
and the Secured Parties and it is agreed that this clause shall survive
any termination or discharge of this Pledge Agreement.
18. NOTICES
Every notice, request, demand or other communication under this Agreement shall
be given:
(1) to the Pledgor at:
BCP CRYSTAL HOLDINGS Ltd. 2,
For the attention of the Directors
c/o Parent
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to Blackstone Capital Partners Cayman IV L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(2) to the Pledgee at:
Deutsche Bank AG, New York Branch,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(telecopy: (▇▇▇) ▇▇▇-▇▇▇▇) (e-mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇.▇▇▇),
with a copy to:White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, attention: ▇▇▇▇ ▇▇▇▇▇, Esq. (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇);
(3) to the Company at:
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
For the attention of the Manager
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to Blackstone Capital Partners Cayman IV L.P. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and to ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
or to such other address or facsimile or telex number as is notified by any
party to the other parties to this Pledge Agreement.
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Every notice, request, demand or other communication under this Pledge Agreement
shall be deemed to have occurred when received.
19. EXPENSES AND STAMP DUTY
The Pledgor shall indemnify and keep indemnified the Pledgee against all costs,
charges, fees and expenses (including legal fees, stamp duties and any value
added tax) incurred in connection with the negotiation, preparation, execution,
registration, implementation and preservation and amendments, waivers or
consents of this Pledge Agreement and all costs, charges, fees and expenses
incurred in connection with the enforcement of this Pledge Agreement (in each
case including fees for legal advisers to the Pledgee) shall be reimbursed to
the Secured Party by the Pledgor upon 2 business days notice.
For the avoidance of doubt, all costs and charges incurred as a result of the
creation of the Pledge, the perfection thereof, and any other costs and charges
incurred as a result of this Pledge Agreement or the enforcement thereof shall
be borne by the Pledgor.
20. GOVERNING LAW; JURISDICTION CLAUSE
20.1. This Pledge Agreement shall be governed by, and construed in accordance
with the laws of Luxembourg.
20.2. The parties hereby irrevocably submit to the exclusive jurisdiction of
the Luxembourg courts in connection with any disputes arising under
this Pledge Agreement.
21. PROCESS AGENT
Without prejudice to any other mode of process, the Pledgor hereby irrevocably:
21.1 appoints the Company, which hereby accepts such appointment, as its
agent for service of process relating to any proceedings before the
Luxembourg courts in connection with this Pledge Agreement;
21.2. agrees that failure by its process agent to notify it of the process
will not invalidate the proceedings concerned.
IN WITNESS WHEREOF, each party has executed and delivered this Agreement in
three originals by its duly authorized officer as of the day and year first
above written.
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
FOR AND BEHALF OF
BCP CRYSTAL HOLDINGS LTD. 2
BY: ▇▇▇▇▇▇ ▇▇▇▇▇
TITLE: Director
THE PLEDGOR
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
FOR AND BEHALF OF THE PLEDGEE
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Pledgee and Collateral Agent for the benefit of the Secured Parties
on behalf of the Secured Parties
(and for the avoidance of doubt their permitted successors and assigns)
BY: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
TITLE: Director Director
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The Company acknowledges and accepts the existence of this Agreement and the
Pledge created over the Pledged CPECs, takes notice of, and agrees to, the terms
thereof, takes notice and agrees to its obligations thereunder and without
limitation undertakes to duly register this Pledge pursuant to its terms in its
register of CPECs holders and to provide the Pledgee with a copy of the register
evidencing such the registration.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
FOR AND BEHALF OF THE COMPANY
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A. acting through
BCP CAYLUX HOLDINGS LTD 1, the General Partner and Manager of the Company
BY: ▇▇▇▇▇▇ ▇▇▇▇▇
TITLE: Director
21
