FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of May 24, 2004,
among BCP CRYSTAL HOLDINGS LTD. 2, a company incorporated with limited liability
under the laws of the Cayman Islands ("Holdings"), BCP CAYLUX HOLDINGS
LUXEMBOURG S.C.A., a corporation partnership limited by shares (societe en
commandite par actions) organized under the laws of Luxembourg ("Parent"),
CELANESE AMERICAS CORPORATION, a Delaware corporation ("CAC"), the lenders party
to the Credit Agreement referred to below from time to time (the "Lenders"),
XXXXXX XXXXXXX SENIOR FUNDING, INC. ("Xxxxxx Xxxxxxx"), as global coordinator
(the "Global Coordinator"), DEUTSCHE BANK AG, NEW YORK BRANCH, as administrative
agent (in such capacity, the "Administrative Agent") and as collateral agent (in
such capacity, the "Collateral Agent") for the Lenders, and DEUTSCHE BANK
SECURITIES INC. and XXXXXX XXXXXXX SENIOR FUNDING, INC., as joint lead arrangers
(in such capacity, the "Joint Lead Arrangers"). Unless otherwise indicated, all
capitalized terms used herein and not otherwise defined shall have the
respective meanings provided such terms in the Credit Agreement referred to
below.
W I T N E S S E T H :
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WHEREAS, Holdings, Parent, CAC, certain subsidiaries of Parent
from time to time party thereto as a borrower under the Revolving Facility
provided for therein (in such capacity, the "Subsidiary Revolving Borrowers"),
the Lenders, the Global Coordinator, the Agents and the Joint Lead Arrangers are
parties to a Credit Agreement, dated as of April 6, 2004 (as amended, modified
or supplemented to the date hereof, the "Credit Agreement"); and
WHEREAS, subject to and on the terms and conditions set forth
herein, the parties hereto wish to amend the Credit Agreement, as provided
below;
NOW, THEREFORE, it is agreed:
1. Section 1.01 of the Credit Agreement is hereby amended by
(x) revising the following definitions in their entirety to read:
"Bidco Pledge" shall mean one or more Pledge Agreements
executed by (i) Bidco and Xxxxxx Xxxxxxx as collateral agent (or any
successor or replacement collateral agent), pursuant to which Bidco has
granted a security interest on all shares of capital stock of the
Company owned by Bidco and (ii) Parent and Xxxxxx Xxxxxxx as collateral
agent (or any successor or replacement collateral agent), pursuant to
which Parent has granted a security interest on the Bidco Loan, which
Pledge Agreements shall secure (x) until the Delisting, the Borrower's
obligations with respect to the Senior Subordinated Bridge B Loans (or
any Senior Subordinated Notes that refinanced any of such Bridge Loans)
and the Term Loan C Financing and (y) after the Delisting, the
Borrower's obligations with respect to the Term Loan C Financing alone,
as the same may be amended, supplemented or otherwise modified from
time to time, with the Bidco Pledge to terminate on the Restructuring
Date.
"Consolidated Net Bank Debt" at any date shall mean
Consolidated Net Debt at such time less the amount of the Term Loan C
Financing, the Senior Subordinated Bridge B Loans (and until the
Delisting any Senior Subordinated Notes secured by the Bidco Pledge)
and all other Indebtedness (other than Capital Lease Obligations)
included in Consolidated Net Debt that is not secured in whole or in
part by a first priority Lien on assets of Holdings and/or the
Subsidiaries.
"Senior Subordinated Notes" shall mean one or more issues of
the senior subordinated notes issued by US Holdco (or by Parent and
assumed by US Holdco on the Restructuring Date) and guaranteed by
Holdings and, on and after the Restructuring Date, by all entities then
guaranteeing the Term Loans, with the net proceeds thereof (to the
extent necessary) to be utilized to refinance the Senior Subordinated
Bridge B Loans (to the extent not refinanced by the Term Loan C
Financing) and the Senior Subordinated Bridge C Loans, it being
understood that the maximum net proceeds to the Borrower from the
Senior Subordinated Notes will not exceed (A) an amount (the "Bridge
Take-Out Amount) equal to the excess of (x) the aggregate outstanding
principal amount of the Senior Subordinated Bridge B Loans and Senior
Subordinated Bridge C Loans (including principal resulting from any pay
in kind interest thereon) over (y) the aggregate principal amount of
the Term Loan C Financing plus (B) the Redemption Amount or, with the
consent of the Administrative Agent, such greater amount not in excess
of 110% of the aforesaid amount.
and (y) inserting the following new definitions in appropriate alphabetical
order:
"Bridge Take-Out Amount" shall have the meaning assigned such
term in the definition of Senior Subordinated Notes.
"Excess Proceeds Amount" shall equal the amount (if any) by
which the net proceeds received by the Borrower from the issuance of
the Senior Subordinated Notes exceeds the Bridge Take-Out Amount.
"PP Co" shall mean a direct subsidiary of Holdings or of the
Term Borrower, it being agreed that PP Co shall not constitute a
Domestic Subsidiary Loan Party.
"PP Co Investment" shall mean the investment in PP Co (by
loans, capital contribution or otherwise) by Holdings or the Term
Borrower of an amount not in excess of the Redemption Amount.
"Redemption Amount" shall mean the amount required to redeem
in full the Topco Preferred (including premiums and accrued but unpaid
dividends), which amount shall not exceed $250 million.
"Term Loan C Financing" shall mean floating rate senior
indebtedness of the Term Borrower incurred as loans under a credit
facility the proceeds of which shall be used to refinance a portion of
the Senior Subordinated Bridge B Loans, which indebtedness will be
guaranteed by Holdings and will be supported by the Bidco Pledge or,
after the Restructuring Date, guarantees by the entities guaranteeing
the Obligations, together with a silent second security interest in all
assets of the Loan Parties that secure the
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Obligations, in all cases pursuant to documentation (the Bidco Pledge
and such documentation, the "Term Loan C Financing Documents")
reasonably satisfactory to the Administrative Agent.
"Term Loan C Financing Documents" shall have the meaning
assigned such term in the definition of Term Loan C Financing.
"Topco" shall mean Xxxxxxxxxx Xxxxxxx Holdings Capital
Partners (Cayman) IV Ltd., an exempted company under the laws of the
Cayman Islands.
"Topco Preferred" shall mean all of the preferred equity
issued by Topco.
"Topco Preferred Redemption Payments" shall have the meaning
assigned such term in Section 6.04(y).
2. Section 6.01 of the Credit Agreement is hereby amended by
deleting clause (l) of said Section and inserting the following new clause (l):
"(l) Indebtedness of the Term Borrower (i) pursuant to the
Senior Subordinated Bridge B Facility in an aggregate principal amount
that is equal to the Permitted B Debt Level (less the amount of any
Term Loan C Financing) plus an amount of principal resulting from any
pay in kind interest thereon, (ii) pursuant to the Senior Subordinated
Bridge C Facility in an aggregate principal amount that is not in
excess of the C Debt Amount plus an amount of principal resulting from
any pay in kind interest thereon, (iii) pursuant to the Term Loan C
Financing and (iv) pursuant to the Senior Subordinated Notes (with the
Indebtedness permitted under the foregoing clauses (i) and (ii) to be
reduced by the net proceeds of the issuance of Senior Subordinated
Notes) and pursuant to any Permitted Senior Subordinated Debt
Securities issued to refinance same;"
3. Section 6.01 of the Credit Agreement is hereby further
amended by (i) adding in clause (m)(i) thereof after the phrase "so long as" the
phrase ", in the case of all such Guarantees other than the Guarantees of the
Term Loan C Financing," and (ii) deleting the "and" after clause (x) thereof,
changing the period at the end of clause (y) thereof to "; and" and adding a new
clause (z) to read: "(z) Indebtedness of PP Co to the extent incurred as a
result of the PP Co Investment."
4. Section 6.02 of the Credit Agreement is hereby amended by
(i) adding "(x)" at the beginning of clause (b) thereof and (ii) inserting, at
the end of clause (b) the following:
"and (y) Liens securing the Term Loan C Financing".
5. Section 6.04 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (v) thereof, (ii)
changing the period at the end of clause (w) thereof to a semi-colon and (iii)
inserting the following new clauses (x) and (y):
"(x) Holdings and/or the Term Borrower may make the PP Co
Investment; and
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(y) PP Co, to the extent it is at the time still a subsidiary
of Holdings, may make loans or advances to Topco, or pay dividends to
Topco (through dividends through the Term Borrower and/or Holdings), in
an amount not in excess of the amount of the PP Co Investment plus any
income earned on the investment thereof prior to such loans, advances
and/or dividends, with the proceeds of such loans, advances or dividends
to be used by Topco solely to redeem or purchase the Topco Preferred;
provided that (i) PP Co will not make such loans, advances and dividends
in an aggregate amount in excess of the Excess Amount, and no dividends
or distributions will be made pursuant to Section 6.06(h) if the PP Co
Investment exceeded the Excess Amount (all such loans, advances and
dividends, "Topco Preferred Redemption Payments"), unless, in each case
no Default or Event of Default (including on a pro forma basis as if
such Topco Preferred Redemption Payments were made on the first day of
the last full fiscal quarter then ended) exists at the time of the
making of such Topco Preferred Redemption Payments, and (ii) to the
extent the issuance of the Senior Subordinated Notes resulted in an
Excess Amount, an amount equal to such Excess Amount shall have been
utilized to make Topco Preferred Redemption Payments within one year
after such issuance and if not so utilized in such time an amount equal
to what would have been the Net Proceeds applicable to the issuance of
Senior Subordinated Notes equal in net proceeds to the excess of (x) the
Excess Amount over (y) the amount actually utilized to make Topco
Preferred Redemption Payments shall be applied to repay the Term Loans
(such repayment to be deemed a mandatory payment under Section
2.11(c).)"
6. Section 6.05 of the Credit Agreement is hereby amended by
changing the word "Dividends" in clause (e) thereof to read "dividends and
distributions."
7. Section 6.06 of the Credit Agreement is hereby amended by
(i) deleting the word "and" appearing at the end of clause (e) thereof, (ii)
changing the period after clause (f) thereof to a semi-colon and (iii) inserting
the following new clauses (g), (h) and (i):
"(g) if Holdings is to make the PP Co Investment, the Term
Borrower may declare and pay dividends, or make other distributions to
Holdings, in an aggregate amount not in excess of the Redemption
Amount, and Holdings shall promptly use the proceeds of such dividend
or distribution to make the PP Co Investment;
(h) the Term Borrower (if it owns the stock of PP Co) may
dividend or distribute the stock of PP Co to Holdings and Holdings may
dividend or distribute the stock of PP Co to one or more of its parent
corporations; and
(i) (I) PP Co may, if a direct subsidiary of Holdings, pay
dividends or distributions to Holdings as contemplated by Section
6.04(y) and (II) Holdings and, to the extent the Term Borrower owns the
stock of PP Co, the Term Borrower may pay dividends or distributions to
its direct parent with the proceeds of the dividends or distributions
made by PP Co as contemplated by Section 6.04(y)."
8. Section 6.08 of the Credit Agreement is hereby amended by
(i) changing the reference to "in clause (b) below" in Section 6.08 (a) (x) to
read "in clause (b) or (c) below" and (ii) adding a new clause (c) at the end
thereof to read:
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"(c) In the case of PP Co (so long as a Subsidiary), engage at
any time in any business or business activity, incur any Indebtedness
or other obligation (monetary or otherwise) or permit or suffer any
Lien other than (i) the receipt of the PP Co Investment and (ii) the
making of the loans and dividends as contemplated by Section 6.04(y)."
9. Section 6.09 of the Credit Agreement is hereby amended by
(i) inserting prior to the reference to "Senior Subordinated Bridge B Loans" in
clause (b)(i) thereof the phrase "Term Loan C Financing, the", (ii) inserting
prior to the reference to "Senior Subordinated Bridge B Financing Documents" in
clause (b)(ii) thereof the phrase "Term Loan C Financing Documents, the" and
(iii) inserting "(x)" prior to the phrase "in effect on the Closing Date" in
clause (d)(C) thereof and deleting the "(x)" preceding the phrase "the Senior
Subordinated B Loan Agreement" in said clause (d)(C).
10. The Lenders hereby agree that no Default or Event of
Default exists under Section 7.01(f) of the Credit Agreement as a result of
Dresdner Bank AG having the right (but not exercising the right) to require the
Indebtedness outstanding under the Credit Agreement effective as of March 1,
2004 between the Company and Dresdner Bank AG, Frankfort Branch to be repaid,
redeemed or purchased as a result of the Transaction.
11. The Lenders hereby authorize the Collateral Agent to enter
into such amendments to the Security Documents as are satisfactory to the
Collateral Agent to give effect to the security interests being granted in favor
of the Term Loan C Financing.
12. In order to induce the Lenders to enter into this
Amendment, the Term Borrower hereby represents and warrants that (i) each of the
representations and warranties contained in Article III of the Credit Agreement
are true and correct in all material respects on the First Amendment Effective
Date (as defined below), both before and after giving effect to this Amendment,
except to the extent such representations and warranties expressly relate to an
earlier date (in which case such representations and warranties shall be true
and correct in all material respects as of such earlier date) and (ii) there
exists no Default or Event of Default on the First Amendment Effective Date,
both before and after giving effect to this Amendment.
13. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
14. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Term Borrower and the Administrative
Agent.
15. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
16. This Amendment shall become effective on the date (the
"First Amendment Effective Date") when each of Holdings, the Term Borrower, CAC
and the
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Required Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to White & Case LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, XX 00000 Attention: Xxxxxx X. Xxxxxx (facsimile number 212-354-8113).
17. From and after the First Amendment Effective Date, all
references to the Credit Agreement in the Credit Agreement and the other Credit
Documents shall be deemed to be references to the Credit Agreement as modified
hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment to be duly executed and delivered as of the date
first above written.
BCP CRYSTAL HOLDINGS LTD. 2
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
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BCP CAYLUX HOLDINGS LUXEMBOURG
S.C.A.
By its Manager, BCP CAYLUX HOLDINGS LTD. 1
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Director
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CELANESE AMERICAS CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President - Finance,
Principal Financial
Officer & Treasurer
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President - Law,
Principal Executive
Officer & Secretary
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DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and as Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Global Coordinator and as Lender
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXX XXXX XX, XXXXXX XXXXXXX
BRANCH, solely as Deposit Bank
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent and as Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Global Coordinator and as Lender
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXX XXXX XX, XXXXXX XXXXXXX
BRANCH, solely as Deposit Bank
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
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