Exhibit 4.9
Execution version
KRONOS INTERNATIONAL, INC.
as Pledgor
and
U.S. BANK, N.A.
as Collateral Agent
relating to shares in
SOCIETE INDUSTRIELLE DU TITANE S.A.
PLEDGE AGREEMENT
(ACTE DE NANTISSEMENT DE COMPTE D'INSTRUMENTS FINANCIERS)
Dated 28 June 2002
CONTENTS
Clause Page
1. Definition and Interpretation....................................3
2. The Pledge.......................................................4
3. Perfection of Pledge.............................................5
4. Representations and Warranties...................................5
5. Undertakings.....................................................6
6. Dividends - Voting Rights in Connection with the Shares..........7
7. Remedies upon Default............................................8
8. Costs and Expenses...............................................8
9. Termination......................................................8
10. Waiver - Remedies cumulative.....................................9
11. Benefit of the Pledge............................................9
12. Amendments.......................................................9
13. Notices..........................................................9
14. Severability of Provisions......................................10
15. Governing Law...................................................10
16. Jurisdiction....................................................10
-SCHEDULE 1 - Declaration xx xxxx de compte d'instruments financiers.11
-SCHEDULE 2 - Attestation de constitution xx xxxx....................15
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PLEDGE AGREEMENT
(ACTE DE NANTISSEMENT DE COMPTE D'INSTRUMENTS FINANCIERS)
BETWEEN:
(1) KRONOS INTERNATIONAL, Inc., a company incorporated under the laws of
Delaware, USA, whose registered office is at 0000 Xxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, XXX (the "Pledgor"),
OF THE FIRST PART,
AND
(2) U.S. BANK, N.A., a national association, whose registered office is at 000
Xxxxxxxxx Xxx Xxxxxx, Xxxxx Xxxxx 0, Xxxxxxxx, Xxxxxx, Xxxxxx Xxxxxx of
America, acting as trustee under section 4.19 (Payments to the Collateral
Agent) of the Indenture (as defined below),
(the "Collateral Agent" which expression shall include any person for the
time being appointed as Collateral Agent or as an additional Collateral
Agent for the purpose of, and in accordance with the Indenture).
OF THE SECOND PART.
WHEREAS:
(A) Pursuant to the resolutions of its shareholders dated 17 June 2002, the
Pledgor issued 8 7/8 % senior secured notes due 2009 (the "Notes") for an
aggregate amount of EUR 285,000,000 the terms and conditions of which are
provided for in the indenture dated 28 June 2002 entered into between the
Security Trustee and the Pledgor, together with all amendments,
supplements and restatements thereof (the "Indenture").
(B) As security for the due performance of the Secured Obligations (as defined
below), the Pledgor has agreed to create a pledge over the financial
instruments accounts (comptes d'instruments financiers) opened in the
books of the Company (as defined below).
IT HAS BEEN AGREED AS FOLLOWS:
1. Definition and Interpretation
1.1 In this Agreement:
"Company" means Societe Industrielle du Titane, societe anonyme
incorporated under the laws of France, whose registered office is at 00
xxx xx Xxxxxxxxxx, 00000 Xxxxx, Xxxxxx and registered with the Registre du
commerce et des societes of Paris under number B 572 086 825.
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"Event of Default" means any Default as defined in the Indenture.
"Noteholder" means any holder of the Notes and its successors and
permitted assigns.
"Secured Obligations" means all obligations at any time due, owing or
incurred by the Pledgor to the Collateral Agent pursuant to Section 4.19
(Payments to the Collateral Agent) of the Indenture, whether principal,
premium or interest and whether present or future, actual or contingent
(and whether incurred solely or jointly and whether as principal or surety
or in some other capacity).
1.2 Words denoting the singular shall include the plural and vice versa, words
denoting one gender shall include the other genders and words denoting
persons shall include firms and corporations and vice versa.
1.3 References in this Agreement to any statutory provision shall be deemed
also to refer to any statutory modification or re-enactment thereof or any
statutory instrument, order or regulation made thereunder or under any
such re-enactment.
1.4 References in this Agreement to any other agreement shall be construed as
a reference to that other agreement as the same may from time to time be
amended, varied, supplemented or novated.
1.5 References in this Agreement to the Collateral Agent and the Pledgor shall
include their successors and permitted assigns.
1.6 Clause headings used in this Agreement are for convenience of reference
only and shall not affect the construction of this Agreement.
2. The Pledge
2.1 In order to secure the full and punctual payment, performance and
discharge of all of the Secured Obligations, the Pledgor hereby undertakes
to grant a pledge over and pledges the financial instruments account
(compte d'instruments financiers) opened and maintained by the Company in
its books in the name of the Pledgor (the "Pledged Account") in favour of
the Collateral Agent (the "Pledge") in accordance with article L.431-4 of
the French Financial and Monetary Code (Code monetaire et financier) (the
"Code").
2.2 The Pledged Account shall be credited with 136,439 shares of a face value
of approximately EUR 0.38 held by the Pledgor in the Company representing
65 % of the issued capital of the Company (the "Shares") (which together
with 60,968 shares of a face value of approximately EUR 0.38 held by the
Pledgor in the Company representing 29 % of the issued capital of the
company shall be hereinafter referred to as the "Pledgor's Interest") and
with any Pledgor's rights, title, benefit and interest in all securities
derived from the Shares or created in substitution of the Shares or any
additional securities received in respect of the Shares by way of, without
limitation, share exchange, regrouping, division, free issue, subscription
by way of cash or otherwise, or by any other means, and with any dividends
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or proceeds derived therefrom (the "Additional Assets", and the Shares and
the Additional Assets shall be collectively referred to as the "Financial
Instruments"). Such Additional Assets shall automatically be included
within the scope of the Pledge. However, save as provided under Clause 6.2
of this Agreement, the Pledged Account shall not include the cash
dividends, interest and other monetary rights (fruits et produits en toute
monnaie) attached to the Shares (the "Cash Proceeds").
3. Perfection of Pledge
3.1 The Pledgor will on the date hereof execute a "statement of pledge over a
financial instruments account" (declaration de constitution xx xxxx de
compte d'instruments financiers) relating to the Shares it holds in the
Company in the form set out in Schedule 1 and shall procure that the
Company to deliver to the Collateral Agent on the date hereof a "pledge
certificate" (attestation de constitution xx xxxx) in the form set out in
Schedule 2, in compliance with article L.431-4 of the Code.
3.2 The Pledgor (i) undertakes to credit the Shares to the Pledged Account on
the date hereof, (ii) shall procure that the credit of the Shares to the
Pledged Account is recorded in the register of share transfers (registre
des mouvements de titres) of the Company and (iii) will deliver on the
date hereof to the Collateral Agent a certified copy of the register of
the share transfers evidencing the transfer of the Shares to the Pledged
Account pursuant to this Agreement.
3.3 The Pledgor shall procure that any Additional Assets shall be credited
directly to the Pledged Account immediately upon the Pledgor becoming the
owner of the Additional Assets and shall procure that the credit of such
Additional Assets to the Pledged Account is recorded in the register of
share transfers (registre des mouvements de titres) of the Company.
4. Representations and Warranties
4.1 The Pledgor hereby represents and warrants upon execution of this
Agreement that:
4.1.1 the current share capital of the Company amounts to EUR 80,000,
divided into 209,906 shares and no other securities (valeurs
mobilieres) have been issued; in addition the shareholders have
not voted the issuance of any securities (valeurs mobilieres);
and
4.1.2 the shareholding of the Company is as described in Schedule 3.
4.2 Furthermore, the Pledgor hereby represents and warrants upon execution of
this Agreement and as long as this Agreement and the Pledge shall remain
in force, that:
4.2.1 it is a company duly incorporated and validly existing in its
jurisdiction of incorporation, with the power to own its assets
and carry on its business in all respects as it is being
conducted;
4.2.2 it has the right and power to enter into this Agreement and to
grant the Pledge, and all approvals and authorisations necessary
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for the Pledgor to enter into this Agreement have been obtained
and no further approvals or authorisations are necessary for the
Pledgor to perform all its obligations under this Agreement;
4.2.3 it is the owner of all of the Financial Instruments and the other
Pledgor's Interest, which are free and clear of any lien, option,
charge, encumbrance or other third party rights other than the
Pledge;
4.2.4 all of the Financial Instruments and the other Pledgor's Interest
are fully paid up;
4.2.5 there exists no option to buy or right granted by the Pledgor to
any person over all or part of the Financial Instruments and the
other Pledgor's Interest;
4.2.6 the Company has given its consent to the Pledge and has agreed to
have the Collateral Agent as potential shareholder, pursuant to a
decision of its board of directors (conseil d'administration)
dated 27 June 2002;
4.2.7 once the "statement of pledge over a financial instruments
account" (declaration de constitution xx xxxx) referred to in
Clause 3.1 has been signed by the Pledgor, a valid nantissement
(pledge) will be created in favour of the Collateral Agent over
the Pledged Account to secure the Secured Obligations; and
4.2.8 all of the Financial Instruments relating to the Company
represent 65 % of its shareholding in the Company.
5. Undertakings
Except as otherwise permitted in the Indenture, the Pledgor undertakes as
long as this Agreement and the Pledge shall remain in force, that:
5.1 it will not place or permit any Financial Instruments to be placed in an
account other than the Pledged Account;
5.2 it shall not, without the prior consent of the Collateral Agent, (i)
assign, transfer, exchange or otherwise dispose of any of the Financial
Instruments or (ii) incur or create or permit to subsist any third party
interests (including encumbrances, pre-emptive rights, options and similar
arrangements) with respect to any of the Financial Instruments (it being
understood that no consent from the Collateral Agent will be required if
(a) a new security interest (the "New Security Interest") is to be granted
over the shares in the Company in favour of third parties and (b) the
security interest granted hereby in favour of the Collateral Agent
pursuant to this Agreement will at any time rank ahead the New Security
Interest). If such consent is granted, the Collateral Agent shall promptly
sign all documents and instruments necessary for the release of the
security interest created hereunder over any Financial Instruments to be
transferred or encumbered in accordance with this Clause 5.2;
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5.3 it shall, at its expenses, take all the necessary steps to defend its
rights in respect of each of the Financial Instruments against any claim
or demand of any person in order to safeguard the rights and protect the
status and priority of the Collateral Agent over the Pledged Account and
shall promptly keep the Collateral Agent informed of any such claim or
demand;
5.4 it shall at all times, at its expense, promptly approve, execute and
deliver (or procure to be approved, executed and delivered) all decisions,
instruments and documents, and take (or procure) all actions as may be
necessary or appropriate, or as the Collateral Agent may require, to
perfect or protect any security interest granted or purported to be
granted hereby or to enable the Collateral Agent to exercise and enforce
its rights and remedies hereunder with respect to the Pledged Account;
5.5 it shall not exercise the voting rights attached to any of the Financial
Instruments in a way which would be likely to adversely affect any of the
rights of the Collateral Agent under this Agreement or the value of the
Pledge created over the Pledged Account by virtue of this Agreement;
5.6 the Financial Instruments pledged under this Agreement shall always
represent 65 % of the share capital of the Company. In the event that the
Pledgor acquires or is attributed any new shares or other Financial
Instruments in the Company not included in the Pledge, the Pledgor shall
immediately carry out the formalities referred to in Clause 3 (Perfection
of Pledge) above, so that the pledged Financial Instruments always
represent 65 % of the share capital of the Company;
5.7 it shall procure that the Company does not issue new shares unless 65 % of
the entire share capital in the Company is pledged in favour to the
Collateral Agent;
5.8 it shall procure that the Company shall provide to the Collateral Agent,
upon demand, any information as the Collateral Agent may require, reports
and records in respect of the Pledged Account, including a "certificate of
pledge" (attestation de constitution xx xxxx) and the Pledgor shall sign
all documents and take all actions necessary in relation thereto; and
5.9 it shall inform the Collateral Agent in writing of any modification
regarding the share capital of the Company or the shareholding of the
latter upon becoming aware of such modification; it shall also inform the
Collateral Agent in writing as soon as it becomes aware that any issuance
of securities (valeurs mobilieres) is considered in the Company and as
soon as such issuance has been implemented.
6. Dividends - Voting Rights in Connection with the Shares
6.1 Provided that no Event of Default has occurred and is continuing, the
Pledgor shall be entitled to all Cash Proceeds.
6.2 If an Event of Default has occurred and is continuing, any Cash Proceeds
paid by the Company shall be automatically credited into the Pledged
Account.
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6.3 Subject to the provisions of Clause 5.5, if an Event of Default has
occurred and is continuing, the Pledgor undertakes to exercise all voting
rights with respect to the Shares in accordance with the prior written
instructions of the Collateral Agent.
7. Remedies upon Default
At any time after an Event of Default has occurred which has not been
remedied or waived, the Collateral Agent may exercise, in addition to all
other rights and remedies granted to it under any other instrument or
agreement securing, evidencing or relating to the Secured Obligations, all
rights and remedies available to a secured party under the laws of France
in respect of the Pledged Account; in particular, the Collateral Agent may
enforce the Pledge by requesting either (i) the attribution by a court, in
whole or in part, of the Financial Instruments to the Collateral Agent in
accordance with the attribution judiciaire procedure pursuant to article
2078 of the French Civil Code or (ii) the public sale (vente publique) of
the Financial Instruments pursuant to article L.521-3 of the French
Commercial Code, as the Collateral Agent may choose.
8. Costs and Expenses
The Pledgor undertakes, on demand of the Collateral Agent, to indemnify
the Collateral Agent against all costs and expenses (including legal fees)
and all charges, duties or taxes relating thereto, incurred by the
Collateral Agent in relation to the preparation, negotiation, execution
and enforcement of this Agreement, in accordance with the Indenture or
otherwise arising out of its role as Collateral Agent.
9. Termination
This Agreement shall terminate (a) upon (i) fulfilment of the Secured
Obligations and due performance of all undertakings under the Indenture or
(ii) upon Legal Defeasance or Covenant Defeasance (as defined in the
Indenture) of all the Notes secured by the Pledge, pursuant to Article
VIII of the Indenture, and (b) when the Pledgor has no further liability
in respect of the Secured Obligations, notwithstanding the liquidation,
bankruptcy, insolvency or reorganisation of the Pledgor or any other fact
or contingency whatsoever but subject to applicable bankruptcy,
insolvency, reorganisation or other similar laws, or if the Pledge is
otherwise permitted to be released pursuant to the terms of the Indenture.
Upon termination of this Agreement, the interest of the Collateral Agent
over the Pledged Account shall terminate. Only once termination has
occurred, at the request of the Pledgor, accompanied by such certificates,
opinions, instruments and other documents as the Collateral Agent may
reasonably require, the Collateral Agent shall, at the expense of the
Pledgor, promptly execute any necessary instrument acknowledging the
satisfaction and discharge of this Agreement, and shall promptly execute
and deliver all such further instruments and documents and take all such
further action, as may be reasonably necessary or appropriate, including
the delivery of a letter to be given by the Collateral Agent to the
Pledgor for the purpose of mainlevee, in respect of the Pledged Account.
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10. Waiver - Remedies cumulative
10.1 No failure to exercise nor any delay in exercising on the part of the
Collateral Agent any right or remedy under this Agreement shall operate as
a waiver thereof nor shall any single or partial exercise of any right or
remedy prevent any further or other exercise thereof or the exercise of
any other right or remedy.
10.2 The rights and remedies provided for in this Agreement are cumulative and
not exclusive of any rights or remedies provided by law.
11. Benefit of the Pledge
11.1 The security constituted by this Agreement shall not be considered as
satisfied or discharged or prejudiced by any intermediate payment,
satisfaction or settlement of any part of the Secured Obligations.
11.2 The security created by this Agreement shall be in addition to, and shall
not in any way be prejudiced or affected by, and shall be without
prejudice to, any other security or guarantee from time to time held by
the Collateral Agent in respect of the Secured Obligations or any part
thereof.
11.3 This Agreement shall be binding on and enure to the benefit of the parties
hereto and their respective successors, permitted assigns and permitted
transferees under the terms of the Indenture.
11.4 The Pledgor may not assign or transfer or purport to assign or transfer
any or all of its rights and/or obligations under this Agreement without
the prior written consent of the Collateral Agent.
12. Amendments
This Agreement may not be amended, modified or waived except with the
written consent of the Pledgor and the Collateral Agent.
13. Notices
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall be made or delivered to that
other person in accordance with section 13.2 (Notices) of the Indenture.
Any communication or document to be made or delivered by one person to the
Collateral Agent shall be made or delivered to the Collateral Agent as
follows:
U.S. Bank, N.A.
Address: 000 Xxxxxxxxx Xxx Xxxxxx, Xxxxx Xxxxx 0, Xxxxxxxx, Xxxxxx,
Xxxxxx Xxxxxx of America
Attention: Xxxxxx Xxxxxx
Fax number: (000) 000-0000
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Phone number: (000) 000-0000
14. Severability of Provisions
If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect in any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction will in any way be affected or impaired.
15. Governing Law
This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of France.
16. Jurisdiction
The parties hereto submit to the exclusive jurisdiction of the Tribunal de
commerce de Paris to settle any disputes which may arise out of or in
connection with this Agreement. This choice of jurisdiction is for the
benefit of the Collateral Agent only. The Collateral Agent shall also be
entitled to take action against the Pledgor in any other court of
competent jurisdiction.
Signed on 28 June 2002,
in three (3) original copies.
KRONOS INTERNATIONAL, Inc.
The Pledgor
By: Xxxxxx X. Xxxxx
Capacity: Vice President and Chief Financial Officer
Signature: /s/ Xxxxxx X. Xxxxx
U.S. BANK, N.A.
The Collateral Agent
By: Xxxxx X. Xxxxxxx
Capacity: Vice President
Signature: /s/ Xxxxx X. Xxxxxxx
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