Exhibit 10.14
EXECUTION COPY
------------------------------------------------------
LOAN CLAIMS PLEDGE AGREEMENT
(ERSTRANGIGE FORDERUNGSVERPFANDUNG)
------------------------------------------------------
DATED 8 JUNE 2004
BETWEEN
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
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 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, 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 Intercompany Borrower has been established for the purpose of
acquiring the shares in the registered capital of Celanese AG 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) The Pledgor received certain loans under a Senior Subordinated Bridge B
Loan Agreement dated as of 6 April 2004 (the "B BRIDGE") in connection
with the acquisition of shares in Celanese AG. The Pledgor has on-lent
all proceeds from the loans under the B Bridge to the Intercompany
Borrower pursuant to and on the terms and conditions set forth in the
Intercompany Loan Agreement. Such amounts are still outstanding.
(C) Various financing facilities are or will be made available to the Pledgor
pursuant to the Loan Agreement, the Senior Subordinated Notes and certain
other financing arrangements. All loans made available to the Pledgor
under the Loan Agreement will be used to repay the amounts borrowed by
the Pledgor under the B Bridge.
(D) The Pledgor has agreed to grant a first ranking pledge over its claims
against the Intercompany Borrower arising in respect of the Intercompany
Loan Agreement in favour of the Pledgees as security for their claims
under the Loan Agreement.
(E) 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):
"COLLATERAL" means the Loan Claims.
1
"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.
"INTERCOMPANY BORROWER" means 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.
"INTERCOMPANY LOAN AGREEMENT" means the intercompany loan agreement
between the Pledgor as lender and the Intercompany Borrower as borrower
dated as of 6 April 2004 (a copy of which is attached hereto as Schedule
2).
"LOAN AGREEMENT" means the loan agreement dated as of 8 June 2004 among
inter alia BCP Crystal Holdings Ltd. 2, the Pledgor, the Collateral Agent
and the respective financial institutions listed in Schedule 1 hereto.
"LOAN CLAIMS" means all present and future, actual or contingent claims
of the Pledgor against the Intercompany Borrower under the Intercompany
Loan Agreement, including but not limited to all claims for the repayment
of principal, the payment of interest and all other sums payable by the
Intercompany Borrower (including claims based on unjust enrichment
(ungerechtfertigte Bereicherung) or tort (Delikt)).
"LOAN DOCUMENTS" means the "Loan Documents" as such term is defined in
the Loan Agreement.
"LOANS" means each "Term Loan C" as defined in the Loan Agreement.
"PLEDGE" means the pledge over the Loan Claims pursuant to Clause 2
hereof.
"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 Pledgor 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 Pledgor based on unjust enrichment
(ungerechtfertigte Bereicherung) or tort (Delikt).
"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 "INTERCOMPANY BORROWER", "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:
2
(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, the Loan Agreement and
the Intercompany 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. PLEDGE OF LOAN CLAIMS
2.1 The Pledgor hereby grants to the Pledgees a first ranking pledge over the
Loan Claims as security for the Secured Obligations as further set out in
Clause 3 hereof.
2.2 The Pledgees hereby accept such pledge.
3. PURPOSE OF THE PLEDGE
The Pledge shall serve as security for the due and punctual satisfaction
of the Secured Obligations.
4. RIGHTS OF PLEDGOR
4.1 INTEREST PAYMENTS UNDER INTERCOMPANY LOAN AGREEMENT
Unless the Pledgees (acting through the Collateral Agent) are entitled to
proceed with a realisation of their interests in the Loan Claims pursuant
to Clause 7, the Pledgor shall have the right to receive and retain all
interest payments due under the Intercompany Loan Agreement.
4.2 PRINCIPAL REPAYMENT UNDER INTERCOMPANY LOAN AGREEMENT
Unless the Pledgees (acting through the Collateral Agent) are entitled to
proceed with a realisation of their interests in the Loan Claims pursuant
to Clause 7, the Pledgor shall have the right to receive and retain
repayments of principal due under the Intercompany Loan Agreement:
(a) if and to the extent, after giving effect to any such payment and
any contemporaneous application thereof by the Pledgor towards
repayment or prepayment of the principal amount of the Loans under
the Loan Agreement, the outstanding principal amount of the Loan
Claims equals or exceeds the aggregate principal amount of Loans
then outstanding under the Loan Agreement; and
(b) if and to the extent any such payment or distribution is made in
accordance with Clause 5.1 of the Intercompany Loan Agreement (as
in effect on the date hereof).
5. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR
The Pledgor hereby represents and warrants to each of the Pledgees that:
3
5.1 Due execution of Intercompany Loan Agreement: the Intercompany Loan
Agreement has been duly authorised, executed and delivered by the parties
thereto, is in existence at the date hereof and has not been cancelled or
otherwise terminated; and
5.2 Good title to Loan Claims: the Pledgor is the true and lawful holder of
the Loan Claims, and no third party has any right, claim, title,
interest, pledge, lien or other encumbrance or charge whatsoever in or to
the Loan Claims (save for the Pledge hereunder).
6. UNDERTAKINGS OF THE PLEDGOR
The Pledgor hereby undertakes to each of the Pledgees:
6.1 No disposal: not to sell, transfer or otherwise dispose (other than by
payments on the Loan Claims permitted under Clause 4 hereof) of all or
part of the Loan Claims;
6.2 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 Loan Claims (save for the Pledge hereunder);
6.3 Information of Pledgees: to notify the Pledgees, by notification in
writing to the Collateral Agent, of its intention to cancel or otherwise
terminate the Intercompany Loan Agreement (for the avoidance of doubt,
the terms "cancel or otherwise terminate" shall not include payments on
the Loan Claims permitted under Clause 4 hereof);
6.4 Submission of documentation: at the reasonable request of the Collateral
Agent, to provide the Collateral Agent with all information, evidence and
documents which are necessary for the examination and enforcement of the
Loan Claims;
6.5 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; and
6.6 First ranking: to ensure that the Pledge will always have first ranking
priority.
7. RIGHT OF REALISATION
7.1 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 4. When the Pledgor 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.
7.2 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
4
the legitimate interests of the Pledgor or, as the case may be, of any
third party having provided security.
7.3 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.
7.4 The Pledgor shall, at its own expense, render all assistance in order to
facilitate the realisation of the Pledgees' security interests in the
Collateral.
7.5 The Pledgees shall not be required to obtain a prior court ruling or to
present any other executory title or document justifying execution.
8. RELEASE OF SECURITY
8.1 Subject to compliance by the Pledgor with the next sentence, the Pledgees
hereby irrevocably waive and cancel their rights to and entitlement in
the 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 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 Pledge. For the avoidance
of doubt, such expiration of the Pledge shall have no retroactive effect
within the meaning of Section 159 of the German Civil Code (Burgerliches
Gesetzbuch).
8.2 After the Secured Obligations have been satisfied in full, the Pledge
will expire by operation of law. Upon request of the Pledgor, the
Collateral Agent shall without delay confirm the expiration of the Pledge
to the Pledgor.
8.3 In case of realisation pursuant to Clause 7 hereof, the Pledgees shall
surrender to the Pledgor any excess proceeds arising from the
realisation. 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.
9. DURATION AND INDEPENDENCE
9.1 Subject to Clause 8.1 above, the 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.
9.2 The Pledge shall not cease to exist if the Secured Obligations have been
discharged temporarily only.
9.3 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
5
Obligations shall affect the validity and the scope of the Pledge and
this Agreement nor the obligations which are imposed on the Pledgor
pursuant to it.
9.4 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 Pledge.
9.5 The 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.
10. 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:
10.1 ENFORCEMENT OF COLLATERAL
(a) The Collateral shall be enforced by the Collateral Agent in the
name and for the account of the Pledgees.
(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
6
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 Pledge pursuant of Clause 7.1 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.
10.2 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.
10.3 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 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
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.
10.4 RELEASE OF COLLATERAL
If the Collateral Agent becomes obliged to confirm the expiration of the
Pledge pursuant to Clause 8.1 or 8.2 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.
7
10.5 APPLICATION OF ARTICLE VIII OF LOAN AGREEMENT
Without limiting the foregoing provisions of this Clause 10, 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.
11. 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 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,
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.
12. MISCELLANEOUS
12.1 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 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 Pledge created
or intended to be created by this Agreement.
8
12.2 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.
12.3 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.
12.4 Any amendments to this Agreement (including this subsection) must be made
in writing.
12.5 The Pledgor agrees to pay all costs and expenses incurred by the
Collateral Agent and or 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.
12.6 This Agreement shall be governed by the laws of the Federal Republic of
Germany.
12.7 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 12.7 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]
9
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
***
10
SCHEDULE 2
COPY OF INTERCOMPANY LOAN AGREEMENT
11
SIGNATURES
THE PLEDGOR
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
Date: 8 June 2004
by: /s/ Xxxxx X. Xxx
---------------------
Name: Xxxxx X. Xxx
Title: Director
for BCP Caylux Holdings Ltd. 1
as Manager of BCP Caylux Holdings Luxembourg S.C.A.
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.
12
ACKNOWLEDGEMENT OF INTERCOMPANY BORROWER
We, BCP Crystal Acquisition GmbH & Co. KG, in our capacity as Borrower under the
Intercompany Loan Agreement (as defined in this Loan Claims Pledge Agreement),
herewith acknowledge and confirm that we have been notified by BCP Caylux
Holdings Luxembourg S.C.A. (as the pledgor) of the pledge created by BCP Caylux
Holdings Luxembourg S.C.A. over all its claims against us under the Intercompany
Loan Agreement pursuant to this Loan Claims Pledge Agreement of which we have
received a copy.
THE INTERCOMPANY BORROWER
BCP CRYSTAL ACQUISITION GMBH & CO. KG
Date: 8 June 2004
by: /s/ Xxxxx X. Xxx
---------------------
Name: Xxxxx X. Xxx
Title: Managing Director
for BCP Management GmbH, acting in its capacity as general partner
of BCP Crystal Acquisition GmbH & Co. KG
13
