Exhibit 10.9
PARENT SHARE PLEDGE AGREEMENT
BY AND BETWEEN
BCP CRYSTAL HOLDINGS LTD. 2
BCP CRYSTAL (CAYMAN) LTD.1
as Pledgors
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, Xxxxxx
House, PO Box 908 GT, Xxxx Street, Xxxxxx Town, Grand Cayman, Cayman
Islands ("BCP Crystal");
(2) BCP CRYSTAL CAYMAN LTD. 1, a company organized under the laws of the Cayman
Islands, with registered office at c/o Walkers SPV Limited, Xxxxxx House,
PO Box 908 GT, Xxxx Street, Xxxxxx Town, Grand Cayman, Cayman Islands ("BCP
Crystal Cayman")
(hereinafter collectively referred to as the "Pledgors" and each a "Pledgor"),
And
(3) 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
(4) 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 0-00, xxx
Xxxxxxx Xxxxx, X-0000 Xxxxxxxxxx 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, Xxxxxx House, PO
Box 908 GR, Xxxx Street, Xxxxxx Town, Grand Cayman, Cayman Islands ( the
"General Partner and Manager")
WHEREAS
A The Company has as of the date hereof an issued share capital of 34,000
Euro represented by 1 registered share held by the General Partner and
Manager (the "GP Shares") and of 1,359 limited partners' shares, of a
nominal value of 25 each;
B. The Pledgors own in aggregate 1,359 registered limited partners shares
representing all but one of the Shares in the issued capital of the Company
(excluding for the avoidance of doubt the GP Share);
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C. BCP Crystal, the Company, Celanese Americas Corporation ("CAC"), certain
other subsidiaries of BCP Crystal 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"), XXXXXX XXXXXXX 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
XXXXXX XXXXXXX 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").
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 Pledgors are all
the limited partners of the Parent, will derive substantial benefits from
the extension of credit to the Borrowers pursuant to the Credit Agreement
and are each willing to execute and deliver this Pledge Agreement and to
pledge all their Shares (and for the avoidance of doubt the Collateral, if
different from the Shares) 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 each of the Pledgors hereby agree 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.
"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 Collateral Agent.
"CREDIT AGREEMENT" shall have the meaning as set out in the recitals hereto.
"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 Holdings Guarantee
and each of the other Loan Documents.
"PLEDGED COLLATERAL" means the Shares, the Future Shares and any Related Assets.
"RELATED ASSETS" means all dividends, interest and other monies payable in
respect of the Shares and all other rights, benefits and proceeds in respect of
or derived from the Shares (whether by way of redemption, bonus, preference,
option, substitution, conversion or otherwise) except to the extent these
constitute Shares.
"RIGHTS OF RECOURSE" means all and any rights, actions and claims the Pledgors
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 Pledgors' 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 performance of all obligations of the Pledgors owing to the
Secured Parties under and pursuant to this Pledge Agreement, the Series A and
Series B CPECS Pledge Agreement, (c) the due and punctual payment and
performance of all the obligations of any of the Pledgors 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 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.
"SERIES A AND B CPECS PLEDGE AGREEMENT" means the pledge agreement of even date
herewith between Holdings and the Pledgee with respect to the Series A
Convertible Preferred Equity Certificates and the Series B Convertible Preferred
Equity Certificates, each issued by the Company.
"SHARES" means all the limited partners' shares regardless of class in the share
capital of the Company held by, to the order or on behalf of anyone of the
Pledgors at any time, including for the avoidance of doubt any shares of the
Company which shall be issued to anyone of the Pledgors from time to time,
regardless of the reason of such issuance, whether by way of substitution,
replacement, dividend or in addition to the shares held on the date hereof,
whether following an exchange, division, free attribution, contribution in kind
or in cash or for any other reason (the "Future Shares"), in which case such
Future Shares shall immediately be and become subject to the security interest
created hereunder (and be part of the Shares).
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 Pledgors (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, each of the
Pledgors hereby pledge as a first priority pledge to the Pledgee, who
accepts, any and all of its Shares in the issued share capital of the
Company of whatever nature, existing or to be acquired by such Pledgor and
owned by such
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Pledgor (including for the avoidance of doubt, any Future Shares) (the
"Pledged Shares") and each of the Pledgors hereby grant to the Pledgee, a
first ranking security on such Pledged Shares and in all proceeds thereof
in respect of or in exchange or replacement for the Pledged Shares (the
"Pledge") as collateral security for the prompt and complete payment and
discharge of the Secured Obligations and transfers the Pledged Shares by
way of security (gage) (pursuant to article 114(3)(c) of the Commercial
Code) to the Pledgee .
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 Pledgors shall simultaneously herewith, or in the case of any
shareholdings issued to anyone of the Pledgors after the date hereof (i.e.
any Future Shares), immediately upon the issue thereof to anyone of the
Pledgors 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 shareholders 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 Pledgors and the Pledgee hereby request and instruct the Company
to immediately register the Pledge in the register of shareholders of the
Company.
Without prejudice to the above provisions, the Pledgors hereby irrevocably
authorise and empower 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 Shares of the
Company or Related Assets, the Pledgors undertake to take any such steps
immediately upon issuance or receipt of such Future Shares 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. The Pledgors, the Pledgee and the Company jointly instruct the General
Partner and Manager of the Company and Me Xxxxxx Xxxxxxx and Me Xxxxxxxxx
Xxxxx (each of Xxxxxx and Xxxxxxxxx), 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
shareholders of the Company.
The text to be used for the inscriptions shall be the following with the
indications:
"Pursuant to the Parent Share Pledge Agreement dated [ ] 2004 between BCP
Crystal Holdings Ltd 2and BCP Crystal (Cayman) Ltd. 1 as Pledgors, Deutsche
Bank AG, New York Branch as Pledgee and the Company, [name relevant
Pledgor] has 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
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under all of its Shares (as well as any Future Shares) 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 Shares, 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 Series A and Series B CPECS 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 any of the Pledgors 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 Pledgors shall forthwith, upon execution hereof, deposit with the
Pledgee all certificates and documents of title to the Shares, if any.
3. VOTING RIGHTS AND OTHER RIGHTS OF THE PLEDGEE
3.1. Until the occurrence of an Event of Default 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, the full voting powers in respect of the Pledged Shares shall, as
from the date of this Pledge Agreement, be exercised on all matters by the
Pledgors, provided however, that the Pledgors shall only exercise such
right in a manner which does not adversely affect the Pledge and the rights
of the Pledgee hereunder and that no vote shall be cast, or 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.
3.2. The Pledgee shall receive a copy of any shareholder 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
Pledgors or any other shareholder).
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, such voting and other powers shall be exercised by the
Pledgee in such manner as he sees fit
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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 each of the
Pledgors irrevocable proxy and for as long as there are any Secured
Obligations outstanding, to represent each of the Pledgors at any
shareholders' 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. Each of the Pledgors 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. Each of the Pledgors 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 Shares in any manner necessary or useful for the purposes of
ensuring the complete satisfaction of the obligations under the Credit
Agreement and each of the Pledgors and the Company hereby waive any claim
the Pledgors 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.
3.5. Upon the occurrence of an Event of Default that is continuing and following
a notice being issued by the Collateral Agent in accordance with clause 6
below, all rights to future dividends and other future cash proceeds
receivable in connection with the Pledged Shares shall automatically be
transferred to the Pledgee.
4. RIGHTS OF THE PLEDGEE, LIABILITY, INDEMNIFICATION
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 Pledgors agree 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, each 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
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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 secured 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 therefor
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:
(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
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(iv) in respect of any Pledged 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
respective Pledgors (as their interest may be), their 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.
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
Pledgors 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.
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7. REPRESENTATIONS AND WARRANTIES OF THE PLEDGORS
Each of the Pledgors 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 Shares and that the Pledged Shares 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 Shares 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 Shares and the inscription thereof in the
register of shareholders of the Company pursuant to this Agreement is not
contrary to any court order applicable to the Pledgors or the Company and
is not in breach of any agreement to which either of the Pledgors is a
party;
7.5. the Pledge created pursuant to this Agreement constitutes a "first
priority" security interest over the Pledged Shares (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 Pledgors and are in full force and
effect;
7.7. the Pledged Shares are not subject to any transfer restrictions (other than
pursuant to the present Pledge Agreement);
7.8. all the Pledged Shares are duly issued and fully paid-up and are in
registered form; and
7.9. the Pledged Shares 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. Each of the Pledgors 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
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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 Pledgors 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 Pledged 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 Shares (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 Pledgors to the extent one or more of them are 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 Pledgors, take 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.
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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 Pledgors or any other person having
granted security for the Secured Obligations
9.5. Each of the Pledgors 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 Pledgors 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 anyone of the
Pledgors, 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 any of the Pledgors; or
9.7.3. any incapacity or lack of powers, authority or legal personality of
the any of the Pledgors; 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
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 any of the Pledgors contained in this Pledge
Agreement, the rights, powers and remedies
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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
Pledgors 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 Pledgors 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
Pledgors) 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, each of the Pledgors hereby
waives any rights arising for it now or in the future (if any) under
Article 2037 of the Luxembourg Civil Code.
10. COVENANTS
10.1 Each of the Pledgors covenant to the Pledgee that they shall act in good
faith to maintain and exercise their 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 the existence of the security
interest created hereunder or result in the violation of any of the
provisions of the Credit Agreement.
10.2. Each of the Pledgors 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
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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.
10.3. Each of the Pledgors is, and will be, the sole owner of its Pledged Shares
free from any encumbrance, except as created in favour of the Secured
Parties by this Pledge Agreement and save as may be permitted pursuant to
Section 6.02 (d), (e) or (q) of the Credit Agreement.
11. FURTHER ASSURANCES
Each of the Pledgors 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 Pledgors under this Pledge Agreement which any
of the Pledgors has failed to carry out or (b) perfecting or maintaining the
security interest created hereunder. Each 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 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
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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 Pledgors.
16. ASSIGNMENT
The Pledgors may not assign or transfer all or any part of their 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 Pledgors, 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 Pledgors with the express
written consent of the Pledgee any assignee or successor of any of the Pledgors
shall assume, jointly with the assigning Pledgor or the Pledgor it succeeds, as
the case may be, all obligation of the Pledgors hereunder including those arisen
and not satisfied prior the date of the assignment or succession thereto.
17. RIGHTS OF RECOURSE
17.1. Each of the Pledgors 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 of doubt, by way of provisional
measures such as provisional attachment ("saisie-arret conservatoire") or
by way of set-off.
17.2. Each of the Pledgors 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.
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18. NOTICES
Every notice, request, demand or other communication under this Agreement shall
be given:
(1) to the Pledgors (or respectively any thereof) at:
BCP CRYSTAL HOLDINGS Ltd. 2,
For the attention of the Directors
c/o Parent
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
BCP CRYSTAL CAYMAN Ltd. 1,
For the Pledgor(s):
For the attention of the Directors
c/o Parent
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
(2) to the Pledgee at:
Deutsche Bank AG, New York Branch,
00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000,
attention: Xxxxx Xxxxxx
(telecopy: (000) 000-0000) (e-mail: xxxxx.xxxxxx@xx.xxx),
with a copy to:White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Xxxx Xxxxx, Esq. (telecopy: (000) 000-0000);
(3) to the Company at:
BCP CAYLUX HOLDINGS LUXEMBOURG S.C.A.
For the attention of the Manager
0 xxx Xxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
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with a copy to Blackstone Capital Partners Cayman IV L.P. 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and to 00 xxx Xxxxxx Xxxxxxx X-0000 Xxxxxxxxxx.
or to such other address or facsimile or telex number as is notified by any
party to the other parties to this Pledge Agreement.
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 Pledgors 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 Pledgors 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 Pledgors.
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, each of the Pledgors 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.
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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/ Xxxxxx Xxxxx
----------------------------
FOR AND BEHALF OF
BCP CRYSTAL HOLDINGS LTD. 2
BY: Xxxxxx Xxxxx
TITLE: Director
PLEDGOR
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/s/ Xxxxxx Xxxxx
----------------------------
FOR AND BEHALF OF
BCP CRYSTAL (CAYMAN) LTD. 1
BY: Xxxxxx Xxxxx
TITLE: Director
PLEDGOR
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/s/ Xxxxxx Xxxxxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------------------------
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: Xxxxxx Xxxxxxxxx Xxxxxx Xxxxxxx
TITLE: Director Director
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The Company acknowledges and accepts the existence of this Agreement and the
Pledge created over the Pledged Shares, 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 shareholders and to provide the Pledgee with a copy of the register
evidencing such the registration.
/s/ Xxxxxx Xxxxx
----------------------------
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: Xxxxxx Xxxxx
TITLE: Director
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