Exhibit 10.13
------------------------------------------------------
SHARE PLEDGE AGREEMENT
(ERSTRANGIGE AKTIENVERPFANDUNG)
------------------------------------------------------
DATED 8 JUNE 2004
BETWEEN
BCP CRYSTAL ACQUISITION GMBH & CO. KG
AS PLEDGOR
DEUTSCHE BANK AG, NEW YORK BRANCH
AS COLLATERAL AGENT AND PLEDGEE
AND
CERTAIN OTHER FINANCIAL INSTITUTIONS
AS PLEDGEES
XXXXX & XXXXXXXX
FRANKFURT
THIS AGREEMENT is dated 8 June 2004 and made between:
(1) BCP CRYSTAL ACQUISITION GMBH & CO. KG, a limited partnership established
under the laws of Germany and registered with the commercial register at
the local court of Stuttgart under registration number HRA 13860, as
pledgor (the "PLEDGOR");
(2) DEUTSCHE BANK AG, NEW YORK BRANCH as collateral agent (the "COLLATERAL
AGENT"); and
(3) the finance parties listed in Schedule 1 hereto (each of them a
"PLEDGEE", and together with the Collateral Agent, the "PLEDGEES").
WHEREAS
(A) The Pledgor has been established for the purpose of acquiring the shares
in the registered capital of the Company by way of a public offer for
purchase of shares made in compliance with the German Takeover Act
(Wertpapiererwerbs- und Ubernahmegesetz) and by other means.
(B) Various financing facilities are or will be made available to the
Pledgor's indirect parent company, BCP Caylux Holdings Luxembourg S.C.A.
(a corporate partnership limited by shares (societe en commandite par
actions) established under the laws of the Grand Duchy of Luxembourg and
registered with the Luxembourg Trade and Companies' Register under
section B number 96771, the "PARENT") pursuant to the Loan Agreement,
the Senior Subordinated Notes and certain other financing arrangements.
All loans made available to the Parent under the Loan Agreement will be
used to repay amounts borrowed by the Parent under a Senior Subordinated
Bridge B Loan Agreement dated as of 6 April 2004 which amounts have been
on-lent, and remain outstanding, to the Pledgor by way of the Bidco
Loan.
(C) The Pledgor has agreed to grant a first ranking pledge over its shares
in the Company in favour of the Pledgees as security for their claims
under the Loan Agreement as further set out in this Agreement.
(D) Pursuant to the Loan Agreement, the Collateral Agent acts as collateral
agent for the Lenders thereunder.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS OF THE LOAN AGREEMENT
All capitalised terms used in this Agreement (including the preamble)
and not otherwise defined herein shall have the meanings ascribed to
such terms in the Loan Agreement.
1.2 FURTHER DEFINED TERMS
In this Agreement (including the preamble):
"ANCILLARY RIGHTS" means all claims for the payment of dividends,
distributions or other monetary claims and all other rights pertaining
to the Shares (other than voting rights), including without limitation
any subscription rights.
"COLLATERAL" means the Pledged Shares.
1
"COMPANY" means Celanese Aktiengesellschaft, a joint stock corporation
incorporated under the laws of Germany and registered with the
commercial register at the local court of Konigstein im Taunus under
registration number HRB 5277.
"CUSTODIAN" means Clearstream Banking AG, Frankfurt am Main.
"DEPOSITORY BANK" means X. Xxxxxxx xxxx. Xxxx & Co. KGaA, Frankfurt am
Main.
"ENFORCEMENT NOTICE" means a written notice delivered to the Collateral
Agent by the Required Pledgees directing the Collateral Agent to
exercise one or more specific rights or remedies under this Agreement.
"LOAN AGREEMENT" means the loan agreement dated as of 8 June 2004 among
inter alia BCP Crystal Holdings Ltd. 2, the Parent, the Collateral Agent
and the respective financial institutions listed in Schedule 1 hereto.
"LOAN DOCUMENTS" means the "Loan Documents" as such term is defined in
the Loan Agreement.
"PLEDGED SHARES" means the Securities and all Ancillary Rights
pertaining thereto.
"REQUIRED PLEDGEES" means "Required Lenders" as such term is defined in
the Loan Agreement.
"SECURED OBLIGATIONS" means all existing, future, actual and contingent
claims which any of the Pledgees may have, either individually or
collectively, against the Parent under the Loan Agreement or any other
Loan Document, including but not limited to, all claims for costs and
expenses in relation to the enforcement of any security provided for
such claims and the Parallel Debt pursuant to Section 9.19 of the Loan
Agreement. For the avoidance of doubt, the Secured Obligations shall
include any obligations of the Parent based on unjust enrichment
(ungerechtfertigte Bereicherung) or tort (Delikt).
"SECURITIES" means all Share Certificates presently and in future
deposited with the Securities Account, and, to the extent any Shares are
incorporated in share certificates held in collective safe custody
either with the Custodian or any Depository Bank, the pertinent
co-ownership interests in the collective custody holdings
(Miteigentumsanteile am Girosammelbestand) being credited to the
Securities Account at any time.
"SECURITIES ACCOUNT" means, collectively, the securities deposit
accounts of the Pledgor identified in Clause 2.
"SHARE CERTIFICATES" means the global share certificates representing
the Shares, deposited with the Custodian, and any other certificate or
securities representing any of the Shares or any rights in relation
thereto, including interest and dividend coupons, annuity bands, renewal
coupons and all related certificates.
"SHARE PLEDGE" means the pledge over the Pledged Shares pursuant to
Clause 3 hereof.
"SHARES" means all of the 54,790,369 registered ordinary shares (auf den
Namen lautende nennwertlose Stuckaktien) and all future shares in the
registered capital of the Company, arising from a capital increase,
split of shares or otherwise the Pledgor now holds or may hold in the
future.
2
"UCC" means the Uniform Commercial Code as in effect from time to time
in the State of New York.
1.3 SUCCESSORS AND ASSIGNS
The expressions "PARENT", "PLEDGOR", "PLEDGEES" and "COLLATERAL AGENT"
shall, where the context permits, include all of their respective
successors and assigns in their relevant capacity.
1.4 MISCELLANEOUS
In this Agreement, unless the context requires otherwise:
(a) Statutes: references to provisions of any law or regulation shall
be construed as references to those provisions as amended,
modified, re-enacted or replaced from time to time;
(b) Documents: references to this Agreement and the Loan Agreement or
to any of them shall be construed as references to this Agreement
or such document as the same may be amended, supplemented or
restated from time to time; and
(c) Singular and Plural: save where the contrary is indicated, the
singular of any defined term includes the plural, and vice versa.
2. SECURITIES ACCOUNT
The Pledgor maintains the following securities account with the
Depository Bank:
------------------------------------------------------------------------
ACCOUNT NUMBER SORT CODE OF DEPOSITORY BANK
-----------------------------------------------------------------------
12210-0001 502 307 00
-----------------------------------------------------------------------
3. PLEDGE OF SHARES
3.1 The Pledgor hereby grants to the Pledgees a first ranking pledge over
the Pledged Shares as security for the Secured Obligations as further
set out in Clause 4 hereof.
3.2 For the avoidance of doubt, the Share Pledge shall, to the extent the
Pledged Shares are incorporated in Share Certificates held in collective
safe custody either with the Custodian or the Depository Bank, attach to
the pertinent co-ownership interests in the collective custody holdings
(Miteigentumsanteile am Girosammelbestand).
3.3 In order to perfect the pledge, the Pledgor hereby irrevocably assigns
to the Pledgees all its present and future claims against the Custodian
and the Depository Bank for delivery of the Share Certificates
representing the Pledged Shares (Abtretung des Herausgabeanspruchs)
pursuant to (without limitation) Sections 870 and 871 of the German
Civil Code (Burgerliches Gesetzbuch) and Sections 7 and 8 of the
Securities Deposit Act (Depotgesetz).
3.4 The Share Pledge shall extend automatically to any newly issued
certificates representing, replacing or supplementing any of the Pledged
Shares which shall forthwith be credited to or, to the extent such
certificates will not be held in collective safe custody, deposited with
3
and held in, the Securities Account without the Pledgor taking
possession of them at any time.
3.5 The Pledgees hereby accept such pledge and assignments.
3.6 In addition to the pledge created in accordance with Clause 3.1 through
3.5 above, the Pledgor and the Pledgees hereby create a pledge over the
Shares credited to the Securities Account at any time by way of pledging
the Pledgor's rights in the Company (Mitgliedschaftsrechte) arising from
such Shares in accordance with Sections 413, 398 of the German Civil
Code (Burgerliches Gesetzbuch).
4. PURPOSE OF THE SHARE PLEDGE
The Share Pledge shall serve as security for the due and punctual
satisfaction of the Secured Obligations.
5. RIGHTS OF PLEDGOR
5.1 Until written notice from the Collateral Agent revoking such rights, the
Pledgor shall have the right to (i) receive and retain all dividends and
all other payments in respect of the Pledged Shares and (ii) receive,
retain and exercise all other Ancillary Rights. Such written notice
shall only be given by the Collateral Agent when the Pledgees are
entitled to revoke the Pledgor's rights under this Clause 5.1 pursuant
to Clause 8.1 (a), first sentence. For the avoidance of doubt, the
parties hereby agree that the Depository Bank may rely on any written
notice from the Collateral Agent hereunder without having to enquire
whether the conditions of Clause 8.1 (a), or any other conditions, are
satisfied.
5.2 The voting rights pertaining to the Shares remain with the Pledgor
subject, however, to the provisions of Clause 7.4 below.
6. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
The Pledgor hereby represents and warrants to each of the Pledgees that:
6.1 Share Certificates endorsed in blank: the Share Certificates are duly
endorsed in blank (Blankoindossament);
6.2 Good title to Pledged Shares: the Pledgor is the true and lawful holder
of legal title to the Pledged Shares and save for the Share Pledge
hereunder, no third party has any right, claim, title, interest, pledge,
lien or other encumbrance or charge whatsoever in or to the Pledged
Shares or the rights to receive dividends, distributions or other
payments thereon;
6.3 Waiver of Depository Bank: the Depository Bank has waived any right of
retention and any right of set-off as well as any rights of pledge the
Depository Bank may have pursuant to its general business terms and
conditions or otherwise in respect of the Securities Account (pursuant
to the written declaration dated 7 June 2004 a copy of which is attached
hereto as Schedule 2).
7. UNDERTAKINGS OF THE PLEDGOR
The Pledgor hereby undertakes to each of the Pledgees:
7.1 Use of Securities Account: to procure that all Share Certificates
representing Shares acquired by the Pledgor will, promptly following the
acquisition of the relevant Shares (and
4
in any event (i) in case of shares held in collective safe custody with
the Custodian at the time of acquisition: within two Business Days
following such acquisition, and (ii) in case of shares which are not
held in collective safe custody with the Custodian at the time of
acquisition: within four Business Days following such acquisition), be
credited to or, to the extent Share Certificates will not be held in
collective safe custody, deposited with and held in, the Securities
Account;
7.2 Notification to and instruction of Company and Depository Bank: to
notify the Company (in form and substance satisfactory to the Collateral
Agent) and the Depository Bank (substantially in the form attached
hereto as Schedule 3) of the Share Pledge immediately following
execution of this Agreement. Evidence of such notification and the
confirmation of the Company and the Depository Bank to comply with the
instructions contained therein shall be delivered to the Collateral
Agent without delay, and in any case no later than ten (10) Business
Days following execution of this Agreement;
7.3 Information of Pledgees: to notify the Pledgees, by notification in
writing to the Collateral Agent, of any shareholders' meeting at which a
shareholders' resolution is intended to be adopted which could have an
adverse effect on the Share Pledge;
7.4 Exercise of voting rights: to act, in exercising its voting rights
pertaining to the shares, in good faith to ensure that the existence or
validity of the Share Pledge is not adversely affected, and in
particular not to adopt without the prior written consent of the
Pledgees (acting through the Collateral Agent) any resolutions regarding
amendments to the articles of association of the Company which might
adversely affect the security position of the Pledgees PROVIDED THAT
this undertaking shall not restrict the ability of the Pledgor to
implement the transactions forming part of, or entered into to give
effect to, the Restructuring and/or the Domination Agreement;
7.5 Attachment proceedings: to notify the Collateral Agent promptly if any
item of the Collateral is affected by or subject to attachment
proceedings or other similar measures. In the event of an attachment or
other similar measure, the Pledgor shall provide the Collateral Agent,
at its request, with a copy of the attachment or other similar measure
and execution order as well as with all other documentation necessary to
lodge protest against the execution and shall immediately inform the
execution creditor in writing of the Collateral Agent's security
interests hereunder;
7.6 First ranking: to ensure that the Share Pledge will always have first
ranking priority;
7.7 No immediate possession: not to take, at any time, immediate possession
(unmittelbaren Besitz) of any Share Certificates representing the
Pledged Shares;
7.8 No disposal: not to sell, transfer or otherwise dispose of any of the
Pledged Shares;
7.9 No encumbrance: not to encumber, create or agree to create, or permit to
subsist, any encumbrance, other security interest or third party right
in or over the Collateral (save for the Share Pledge hereunder); and
7.10 No closing of accounts: not to close the Securities Account during the
term of the Share Pledge without the prior written consent of the
Pledgees acting through the Collateral Agent.
5
8. RIGHT OF REALISATION
8.1 TIME AND SCOPE OF REALISATION
(a) Upon the occurrence of an Event of Default which is continuing,
the Pledgees (acting through the Collateral Agent) shall be
entitled to revoke the Pledgor's rights pursuant to Clause 5.
When the Parent is in default (for the avoidance of doubt, upon
the lapse of any applicable grace period) with any payments in
respect of the Secured Obligations, the Pledgees (acting through
the Collateral Agent) shall be entitled to proceed with a
realisation of the Collateral.
(b) The Pledgees shall realise their interest in the Collateral only
to the extent necessary to satisfy the Secured Obligations which
are past due. The Pledgees (acting through the Collateral Agent)
may, in their discretion, decide which of the Collateral or other
security rights, granted for the Secured Obligations, if any,
shall be realised to satisfy the Secured Obligations. In
exercising such discretion, the Pledgees shall reasonably take
into account the legitimate interests of the Pledgor or, as the
case may be, of any third party having provided security.
(c) The Pledgees (acting through the Collateral Agent) shall give the
Pledgor at least five (5) Business Days' prior written notice of
the Pledgees intention to realise their interest in the
Collateral, unless the Pledgor has ceased generally to pay its
debts when due or when an application has been made for the
institution of insolvency proceedings in respect of the assets of
the Pledgor by the Pledgor or any third party, and, in the latter
case, it is not without delay established to the satisfaction of
the Pledgees that the application is without merit.
(d) The Pledgor shall, at its own expense, render all assistance in
order to facilitate the realisation of the Pledgees' security
interests in the Collateral.
8.2 REALISATION OF PLEDGED SHARES
(a) Subject to the provisions of Clause 8.1 (a), the Pledgees shall
be entitled to seek realisation from, and shall have the right to
exercise the power to sell or dispose of, the Pledged Shares by
means of a public auction or, provided a stock exchange or market
price for such shares exists, through an officially authorised
broker (offentlich ermachtigter Handelsmakler). The Pledgees
shall not be required to obtain a prior court ruling or to
present any other executory title or document justifying
execution. The public auction may be held at any place in the
Federal Republic of Germany which will be determined by the
Pledgees (acting through the Collateral Agent).
(b) Subject to the provisions of Clause 8.1 (a), the Pledgees (acting
through the Collateral Agent) shall be entitled to notify the
Company of the realisation of the Share Pledge and following such
notification, all payments on, and performance of, any Ancillary
Right shall be due to the Pledgees and any proceeds therefrom
shall be applied towards the satisfaction of the Secured
Obligations.
8.3 LIMITATION OF ENFORCEMENT
(a) Each Pledgee agrees that the enforcement of the Share Pledge and
the application of enforcement proceeds, other than in respect of
loans directly made available to the Pledgor, or to any of its
Subsidiaries, shall be limited to the extent that the
6
enforcement of the Share Pledge would cause the Pledgor's general
partner's net assets (Reinvermogen) to fall below its registered
share capital (Stammkapital), PROVIDED THAT for the purposes of
calculating the amount of such limitation the following balance
sheet items shall be adjusted as follows:
(i) the amount of any increase of the stated share capital
(Stammkapital) from retained earnings (Kapitalerhohung aus
Gesellschaftsmitteln) of the Pledgor or its general
partner (Komplementar) after the date of this Agreement
shall be deducted from the relevant stated share capital;
(ii) loans shall be disregarded if and to the extent such loans
are subordinated pursuant to Sec. 32a of the
Limited-Liability Companies Act (GmbHG), or are
subordinated within the meaning of Sec. 39 para. 2
Insolvency Code (Insolvenzordnung); and
(iii) loans and other liabilities incurred by the Pledgor in
violation of the provisions of the Loan Documents shall be
disregarded,
and FURTHER PROVIDED THAT the Pledgor shall have an obligation to
promptly dispose, at the request of the Collateral Agent made
after notification of enforcement of the Share Pledge, of all
assets on market terms where the relevant assets are shown in the
balance sheet of the Pledgor with a book value (Buchwert) which
is significantly lower than the market value of such assets and
such asset is not essential for the conduct of the Pledgor's
business (nicht betriebsnotwendig).
(b) The above limitations shall not apply if following notification
by a Pledgee of the enforcement of the Share Pledge by such
Pledgee, the Pledgor does not provide interim financial
statements up to the end of the last completed calendar month,
within twenty (20) days after the date of such notification, or
if after receipt of such unaudited statements notification is
given to the Pledgor to provide audited financial statements up
to the end of that same calendar month and such audited financial
statements are not provided within forty-five (45) days after the
date of such notification.
(c) No reduction of the amount enforceable under the Share Pledge in
accordance with the above limitations will prejudice the rights
of the Pledgees to continue enforcing the Share Pledge (subject
always to the operation of the limitation set out above at the
time of such enforcement) until full satisfaction of the Secured
Obligations, provided however that, once audited financial
statements have been provided in accordance with the last
sentence of sub-clause (b) above, other conclusive evidence
(including, e.g., an affidavit by the managing directors) may be
provided instead of financial statements for the purposes of
determining any relevant amounts pursuant to this Clause in
respect of any period of up to three months after the balance
sheet date shown in the financial statements which had been so
provided.
(d) The foregoing provisions of this Clause 8.3 shall not apply to
the extent any amount secured by the Share Pledge relates to
amounts which have been on-lent to the Pledgor to the extent any
amounts so on-lent are still outstanding at the time of
enforcement of the Share Pledge hereunder.
7
8.4 RELIANCE OF DEPOSITORY BANK
For the avoidance of doubt and without prejudice to the rights and
obligations of the Pledgor and the Pledgees vis-a-vis each other, the
parties hereto agree that the Depository Bank may rely on any written
notice received from the Collateral Agent in connection with the
enforcement of the pledges or the exercise of any remedies hereunder
without having to enquire whether the conditions of this Clause 8, or
any other conditions, are satisfied. Any written notice from the
Collateral Agent to the Depository Bank shall be accompanied by proof of
authority of the Collateral Agent's signatories signing such written
notice.
9. RELEASE OF SECURITY
9.1 Subject to compliance by the Pledgor with the next sentence, the
Pledgees hereby irrevocably waive and cancel their rights to and
entitlement in the Share Pledge with effect as of the Restructuring
Date. Upon request of the Pledgor (which shall be accompanied by a
certificate of a Responsible Officer thereof confirming that the
Restructuring has been completed and specifying the Restructuring Date),
the Collateral Agent shall without undue delay confirm the expiration of
the Share Pledge to the Pledgor, provided that the Pledgor shall have
confirmed to the Collateral Agent that the Collateral and Guarantee
Requirements under the Loan Agreement shall have been satisfied prior to
the expiration of the Share Pledge. For the avoidance of doubt, such
expiration of the Share Pledge shall have no retroactive effect within
the meaning of Section 159 of the German Civil Code (Burgerliches
Gesetzbuch).
9.2 After the Secured Obligations have been satisfied in full, the Share
Pledge will expire by operation of law. Upon request of the Pledgor, the
Collateral Agent shall without delay confirm the expiration of the Share
Pledge to the Pledgor.
9.3 In case of realisation pursuant to Clause 8 hereof, the Pledgees shall
surrender any excess proceeds arising from the realisation to the
Pledgor. However, the Pledgees shall transfer the Collateral or any
excess proceeds arising from their realisation to a third party if
legally obliged to do so. In addition, security rights created hereunder
may also pass to another party by operation of law.
10. SECURITY FOR THIRD PARTIES' OBLIGATIONS GRANTED BY PLEDGOR
If and to the extent the Secured Obligations are not only owed by the
Pledgor but also by third parties, and if and to the extent the Pledgor
satisfies (including by enforcement of the Share Pledge) the Secured
Obligations in full or in part, the provisions of this Clause shall
apply.
10.1 TRANSFER OF SECURITY
(a) Until satisfaction of the Secured Obligations in full, the legal
subrogation (gesetzlicher Forderungsubergang) pursuant to Section
1225 (or any other applicable provision) of the German Civil Code
(Burgerliches Gesetzbuch) shall not apply.
(b) The Pledgor may request the transfer to it of non-accessory
security rights (nicht-akzessorische Sicherungsrechte) which have
not been provided by the Pledgor only upon satisfaction of the
Secured Obligations in full and only if and to the extent the
respective security provider has approved the transfer to the
Pledgor.
8
(c) For the avoidance of doubt, the provisions of this Clause shall
not affect any claims of the Pledgor for compensation and
transfer of security rights against other parties granting
security rights.
10.2 WAIVER OF DEFENCES
(a) The Pledgor hereby expressly waives all defences of avoidance
(Anfechtbarkeit) pursuant to Sections 770 (1), 1211 of the German
Civil Code (Burgerliches Gesetzbuch).
(b) The Pledgor hereby expressly waives all defences of set-off
(Aufrechenbarkeit) pursuant to Sections 770 (2), 1211 of the
German Civil Code (Burgerliches Gesetzbuch) save to the extent
that the relevant Pledgee is in a position to discharge its
Secured Obligations by way of set-off against claims of Parent
which are either undisputed or which have been the subject of a
final court judgement.
11. DURATION AND INDEPENDENCE
11.1 Subject to Clause 9.1 above, the Share Pledge shall in no event expire
before and unless any and all Secured Obligations have been fully and
finally satisfied and discharged and there is no amount outstanding
under the Secured Obligations owed to the Pledgees, whether for
principal, interest, fees, discounts or other costs, expenses, charges
or otherwise.
11.2 The Share Pledge shall not cease to exist if the Secured Obligations
have been discharged temporarily only.
11.3 This Agreement shall constitute a continuing security and no change or
amendment whatsoever in and to the Secured Obligations and to any
document related with the Secured Obligations shall affect the validity
and the scope of the Share Pledge and this Agreement nor the obligations
which are imposed on the Pledgor pursuant to it.
11.4 This Agreement is in addition to, and independent of, any other security
or guarantee the Pledgees may now or hereafter hold in respect of the
Secured Obligations. None of such security interests or guarantees shall
prejudice, or shall be prejudiced by, or shall be merged or commingled
in any way with the Share Pledge.
11.5 The Share Pledge shall remain valid notwithstanding any measure taken by
the Pledgees against the Pledgor to collect the Pledgees' claims, and in
particular if the Pledgees grant payment deferrals, release guarantors,
sureties or collateral or conclude a settlement or another agreement
with persons directly or indirectly concerned by this Agreement.
12. COLLATERAL AGENCY PROVISION
In addition to and without prejudice to the provisions relating to the
appointment and role of the Collateral Agent contained in the Loan
Documents, and without limiting the rights of the Pledgees or the rights
of the Collateral Agent against the Pledgor, or the obligations of the
Pledgor, hereunder in any way, the Pledgees and the Collateral Agent
hereby agree as follows:
12.1 ENFORCEMENT OF COLLATERAL
(a) The Collateral shall be enforced by the Collateral Agent in the
name and for the account of the Pledgees.
9
(b) The Collateral Agent shall enforce the Collateral and exercise
any of the remedies with respect thereto upon receipt of an
Enforcement Notice directing it to do so (for the avoidance of
doubt, subject to its right to enforce or exercise any remedy
having arisen under the terms of this Agreement).
(c) Upon receipt of an Enforcement Notice, the Collateral Agent shall
commence with and initiate such measures as the Collateral Agent
may deem appropriate, necessary or advisable for the enforcement
of all or part of the Collateral or exercise any other remedies
with respect thereto (for the avoidance of doubt, subject to its
right to enforce or exercise any remedy having arisen under the
terms of this Agreement).
(d) The Pledgees and the Collateral Agent hereby acknowledge and
agree that:
(i) no Pledgee shall exercise any independent power to enforce
any of the Collateral or to exercise any rights, remedies,
discretions or powers or to grant any consents or releases
or otherwise have direct recourse to any of the
Collateral;
(ii) no Pledgee shall be entitled to act individually to
require the Collateral Agent to take any action or
proceedings under or in relation to this Agreement or to
exercise any of the rights, powers or discretions
conferred on it by this Agreement, other than in their
capacity as Required Pledgees;
(iii) notwithstanding anything to the contrary herein, to the
extent that this Agreement requires any notice, consent,
direction or instruction to be given by the Pledgees, such
notice, consent, direction or instruction may be given by
the Required Pledgees and, if given by the Required
Pledgees, shall be binding on all the Pledgees; and
(iv) the pledges created hereunder shall be treated as ranking
pari passu.
(e) From time to time after the occurrence of events entitling the
Pledgees to enforce the Share Pledge pursuant of Clause 8.1
hereof, where time and circumstances do not permit the Collateral
Agent to consult or obtain the consent of the Pledgees, it may,
in accordance with the provisions of the Loan Agreement, proceed
(but shall not be obliged to do so) in its absolute discretion to
protect and enforce the rights vested in it pursuant to this
Agreement, provided always that it shall advise the Pledgees of
any action it has taken as soon as possible thereafter.
12.2 APPLICATION OF ENFORCEMENT PROCEEDS
Following a realisation of the Collateral, the proceeds shall be applied
(i) FIRST, to the satisfaction of the Collateral Agent's and the
Administrative Agent's claims for reimbursement of its costs and
expenses and (ii) SECOND, pro rata (based on the amount of each
Pledgee's Secured Obligations) to the satisfaction of the Secured
Obligations of all Pledgees.
12.3 LIABILITY OF THE COLLATERAL AGENT; REFUSAL TO ACT
(a) The Collateral Agent shall in all cases be fully protected in
acting, or refraining from acting, in accordance with written
instructions (including pursuant to an Enforcement Notice) signed
by the Required Pledgees and such instructions and any action or
inaction pursuant thereto shall be binding on all the Pledgees.
The
10
Collateral Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document
believed by it in good faith to be genuine and correct and to have
been signed or sent by the proper Person or Persons. For the
avoidance of doubt, the provisions of this sub-clause shall only
apply as between the Pledgees and the Collateral Agent and shall
not affect the rights and obligations of the Collateral Agent
vis-a-vis the Pledgor.
(b) The Collateral Agent may refuse to act on any notice, consent,
direction or instruction from any Pledgee (including pursuant to
an Enforcement Notice) or any agent, trustee or similar
representative thereof that, in the Collateral Agent's opinion,
(i) is contrary to law or the provisions of any of the Loan
Agreement or the Loan Documents, (ii) may expose the Collateral
Agent to liability (unless the Collateral Agent shall have been
indemnified, to its reasonable satisfaction, for such liability
by the Pledgees that gave such notice, consent, direction or
instruction) or (iii) is unduly prejudicial to Pledgees not
joining in such notice, consent, direction or instruction.
12.4 RELEASE OF COLLATERAL
If the Collateral Agent becomes obliged to confirm the expiration of the
Share Pledge pursuant to Clause 9.1 or 9.2 hereof, the Collateral Agent
is hereby authorised to execute on behalf of itself and each Pledgee,
without the need for any further referral to or authority from such
person, any release of the security created by this Agreement.
12.5 APPLICATION OF ARTICLE VIII OF LOAN AGREEMENT
Without limiting the foregoing provisions of this Clause 12, the
provisions of Article VIII of the Loan Agreement shall inure to the
benefit of the Collateral Agent and shall be binding on all Pledgees as
if fully set forth herein, with each reference to the "Administrative
Agent" therein being replaced by a reference to the "Collateral Agent"
herein.
13. NOTICES All correspondence and notifications under or in connection with
this Agreement shall be delivered either in person in written form, or
by registered letter, courier or telefax at the following addresses:
(i) to the Pledgor:
BCP Crystal Acquisition GmbH & Co. KG
c/o BCP Caylux Holdings Luxembourg S.C.A.
00, Xxx Xxxxxx Xxxxxxx
X-0000 Xxxxxxxxxx
with a copy to Blackstone Capital Partners Cayman IV L.P.
000 Xxxx Xxxxxx, Xxx Xxxx
Xxx Xxxx 00000
XXX
(ii) to the Pledgees:
Deutsche Bank AG, New York Branch,
11
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
attention: Xxxxx Xxxxxx (telecopy: xx0 (000) 000-0000)
with a copy to White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX
attention: Xxxx Xxxxx, Esq. (telecopy: xx0 (000) 000-0000)
or such other addresses notified in writing by the relevant recipient to
the other party. All correspondence and notifications to the Pledgees
shall be addressed to the Collateral Agent.
14. MISCELLANEOUS
14.1 The Pledgor agrees to execute any and all further documents, agreements
and instruments, and take all such further actions (including the filing
and recording of financing statements and other documents and recordings
of liens in stock registries), that may be required under any applicable
law, or that the Collateral Agent may reasonably request, to cause the
Collateral and Guarantee Requirements to be and remain satisfied in
respect of this Agreement and the Share Pledge created hereunder, all at
the expense of the Pledgor and provide to the Collateral Agent, from
time to time upon reasonable request, evidence reasonably satisfactory
to the Collateral Agent as to the perfection and priority of the Share
Pledge created or intended to be created by this Agreement.
14.2 The Pledgor hereby authorises the Collateral Agent to execute and file
financing statements or continuation statements without such Pledgor's
signature appearing thereon pursuant to UCC.
14.3 Should any provision of this Agreement be or become wholly or in part
invalid or unenforceable, the remaining parts of this Agreement shall
not be affected. The invalid or unenforceable provision shall be
replaced by a valid and enforceable provision which approximates as
closely as possible to the economic purpose of the invalid or
unenforceable provision.
14.4 Any amendments to this Agreement (including this subsection) must be
made in writing.
14.5 The Pledgor agrees to pay all costs and expenses incurred by the
Collateral Agent and any other Pledgee, and to indemnify and hold
harmless the Collateral Agent and any other Pledgee in connection with
this Agreement pursuant to the provisions of Section 9.05 of the Loan
Agreement mutatis mutandis.
14.6 This Agreement shall be governed by the laws of the Federal Republic of
Germany.
14.7 The courts of Frankfurt am Main, Germany, shall have exclusive
jurisdiction to settle any dispute arising out of or in connection with
this Agreement (including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE"). This Clause 14.7 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. To the extent permitted by law, the Pledgees
may take concurrent proceedings in any number of jurisdictions.
[Schedules and execution pages to follow]
12
SCHEDULE 1
THE PLEDGEES
1. DEUTSCHE BANK AG, NEW YORK BRANCH as Collateral Agent and Adminstrative
Agent
2. DEUTSCHE BANK AG, NEW YORK BRANCH as Lender
***
13
SCHEDULE 2
WAIVER OF DEPOSITORY BANK
14
SCHEDULE 3
To:
X. Xxxxxxx xxxx. Xxxx & Co. KGaA
Gro(b)e Xxxxxxxxxx(x)x 00
00000 Xxxxxxxxx xx Xxxx
Xxxxxxx
fax: [ ]
attention: [ ]
Dear Sirs
RE: DEPOSIT ACCOUNT NUMBER 12210-0001 (THE "SECURITIES ACCOUNT")
We, BCP Crystal Acquisition GmbH & Co. KG, hereby give you notice that
by a first ranking pledge agreement dated 8 June 2004 (the "SHARE
PLEDGE AGREEMENT"), we have pledged by way of a first ranking pledge
all of our shares in Celanese AG which are deposited in the above
Securities Account in favour of Deutsche Bank AG, New York Branch, as
Collateral Agent and Pledgee, and the other financial institutions
named therein, as Pledgees.
A copy of the Share Pledge Agreement is attached hereto. All
capitalised terms used in this letter and not otherwise defined herein
shall have the meanings ascribed to such terms in the Share Pledge
Agreement.
We hereby:
(i) give you notice of the Share Pledge, and in particular, give you notice
that we have assigned all our present and future claims against you for
delivery of the Share Certificates (Abtretung des Herausgabeanspruchs)
representing the Pledged Shares to the Pledgees;
(ii) instruct you to hold the Pledged Shares for the Pledgees only (to the
exclusion of ourselves) until notification from the Collateral Agent that
the Share Pledge has expired or has been released.
Please acknowledge receipt of this notice and your agreement to the terms hereof
by signing the enclosed copy and returning the same to us, with a copy to the
Collateral Agent.
Yours faithfully,
-------------------------------------------
BCP Crystal Acquisition GmbH & Co. KG
15
ACKNOWLEDGEMENT OF DEPOSITORY BANK
[on duplicate letter]
We, X. Xxxxxxx xxxx. Xxxx & Co. KGaA, Frankfurt am Main, in our
capacity as depository bank for the Securities Account (no. 12210-0001)
hereby:
(i) acknowledge receipt of the above notice;
(ii) confirm that we agree with the terms thereof and that we will
comply with the instructions contained in such notice;
(iii) confirm that we have neither received any previous notice of
pledge relating to the Securities Account (or the securities held
therein) (other than the notice in relation to the pledge
agreement dated 6 April 2004 which is purported to be released by
release letter dated [ ] a copy of which we have received) nor
are we aware of any third party rights in relation to the
Securities Account; and
(iv) confirm that we have waived any right of retention and any right
of set-off as well as any rights of pledge in our favour (on the
basis of our general business terms and conditions or otherwise)
in respect of the Securities Account pursuant to our letter to
you dated [ ] 2004.
---------------------------------- -------------------------
For and on behalf of Date
X. XXXXXXX XXXX. XXXX & CO.
KGaA
Frankfurt am Main
(as Depository Bank)
16
SIGNATURES
THE PLEDGOR
BCP CRYSTAL ACQUISITION GMBH & CO. KG
Date: 8 June 2004
by: /s/ Xxxxx Xxx
-------------------
Name: Xxxxx Xxx
for BCP Management GmbH, acting in its capacity as general partner
of BCP Crystal Acquisition GmbH & Co. KG
THE COLLATERAL AGENT
DEUTSCHE BANK AG, NEW YORK BRANCH
Date: 8 June 2004
by: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
by: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
THE PLEDGEES
DEUTSCHE BANK AG, NEW YORK BRANCH
Date: 8 June 2004
by: /s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
by: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
for Deutsche Bank AG, New York Branch acting as attorney-in-fact
(Stellvertreter) in the name and on behalf of each of the financial institutions
listed in Schedule 1 hereto.
17
