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Parent Cpec Pledge Agreement

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Exhibit 10.8 PARENT Series A and Series B CPECs PLEDGE AGREEMENT BY AND BETWEEN BCP CRYSTAL HOLDINGS LTD. 2 as Pledgor 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, Walker House, PO Box 908 GT, Mary Street, George Town, Grand Cayman, Cayman Islands (the "Pledgor" or "BCP Crystal");And(2) 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(3) 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 8-10, rue Mathias Hardt, L-1717 Luxembourg 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, Walker House, PO Box 908 GR, Mary Street, George Town, Grand Cayman, Cayman Islands ( the "General Partner and Manager")WHEREASA. The Company has as of the date hereof issued registered Series A Convertible Preferred Equity Certificates (the "Series A CPECs") and registered Series B Convertible Preferred Equity Certificates (the "Series B CPECs");B. The Pledgor owns all the Series A CPECs and all the Series B CPECs issued by the Company;C. The Pledgor, the Company, Celanese Americas Corporation ("CAC"), certain other subsidiaries of the Pledgor 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"), MORGAN STANLEY 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 MORGAN STANLEY 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"). 2 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 Pledgor is the majority limited partner of the Parent, will derive substantial benefits from the extension of credit to the Borrowers pursuant to the Credit Agreement and is willing to execute and deliver this Pledge Agreement and to pledge all its CPECs (and for the avoidance of doubt the Collateral, if different from the CPECs) 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 Pledgor hereby agrees with the Pledgee as follows:1. DEFINITIONS AND INTERPRETATION1.1. 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."CPECs" means all the convertible preferred equity certificates regardless ofclass or series issued by the Company held by, to the order or on behalf of thePledgor at any time (including for the avoidance of doubt the Series A CPECs andthe Series B CPECs), including for the avoidance of doubt any CPECs orsecurities of the Company which shall be issued to the Pledgor from time totime, regardless of the reason of such issuance, whether by way of substitution,replacement, interest, conversion or in addition to the CPECs held on the datehereof, whether following an exchange, division, free attribution, conversion,contribution in kind or in cash or for any other reason (the "Future CPECs"), inwhich case such Future CPECs shall immediately be and become subject to thesecurity interest created hereunder (and be part of the CPECs)."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 eachBorrower of (i) the unpaid principal of and interest (including interestaccruing during the pendency of any bankruptcy, insolvency, receivership orother similar proceeding, regardless of whether allowed or allowable in suchproceeding) on the Loans made to such Borrower, when and as due, whether atmaturity, by acceleration, upon one or more dates set for prepayment orotherwise, (ii) each payment required to be made by any Borrower under theCredit Agreement in respect of any Letter of Credit, when and as due, includingpayments in respect of reimbursement of disbursements, interest thereon 3 (including interest accruing during the pendency of any bankruptcy, insolvency,receivership or other similar proceeding, regardless of whether allowed orallowable in such proceeding) and obligations to provide cash collateral and(iii) all other monetary obligations of any Borrower to any of the SecuredParties under the Credit Agreement and each of the other Loan Documents,including obligations to pay fees, expense and reimbursement obligations andindemnification obligations, whether primary, secondary, direct, contingent,fixed or otherwise (including monetary obligations incurred during the pendencyof any bankruptcy, insolvency, receivership or other similar proceeding,regardless of whether allowed or allowable in such proceeding) and (b) the dueand punctual performance of all other obligations of the Borrowers under orpursuant to the Credit Agreement, this Pledge Agreement, the Share PledgeAgreement, the Holdings Guarantee and each of the other Loan Documents."PLEDGED COLLATERAL" the CPECs, the Future CPECs and any Related Assets."RELATED ASSETS" means all dividends, interest and other monies payable inrespect of the CPECs and all other rights, benefits and proceeds in respect ofor derived from the CPECs (whether by way of redemption, bonus, preference,option, substitution, conversion or otherwise) except to the extent theseconstitute CPECs."RIGHTS OF RECOURSE" means all and any rights, actions and claims the Pledgormay have against (i) the obligors under the Credit Agreement or other LoanDocuments and (ii) any entity having granted security or given a guarantee forsuch obligors' obligations under the Loan Documents (the "SECURITY GRANTOR")arising under or pursuant to the enforcement of the present pledge including, inparticular, the Pledgor's right of recourse against the such obligors under theterms of Article 2028ff. of the Civil Code (including, for the avoidance ofdoubt, any right of recourse prior to enforcement), or any right of recourse byway of subrogation or any other similar right, action or claim under anyapplicable law."SECURED OBLIGATIONS" means (a) the Loan Document Obligations, (b) the due andpunctual payment and and performance of all obligations of the Pledgor owing tothe Secured Parties under and pursuant to this Pledge Agreement, the ParentShare Pledge Agreement, (c) the due and punctual payment and performance of allthe obligations of the Pledgor under and pursuant to the Holdings Guarantee (d)the due and punctual payment and performance of all obligations of any Borrowerunder each Swap Agreement that (i) is in effect on the Closing Date with acounterparty that is a Lender or an Affiliate of a Lender as of the Closing Dateor (ii) is entered into after the Closing Date with any counterparty that is aLender or an Affiliate of a Lender at the time such Swap Agreement is enteredinto, and (e) the due and punctual payment and performance of all obligations ofany Borrower and any of its subsidiaries in respect of overdrafts and relatedliabilities owed to a Lender or any of its Affiliates and arising from cashmanagement services (including treasury, depository, overdraft, credit or debitcard, electronic funds transfer and other cash management arrangements)."SECURED PARTIES" means (a) the Lenders (and any Affiliate of a Lender to whichany 4 obligation referred to to in clause (d) and (e) of the definition of the term"Secured Obligations" is owed), (b) the Administrative Agent and the CollateralAgent, (c) each Issuing Bank, (d) each counterparty to any Swap Agreemententered into with a Loan Party the obligations under which constitute SecuredObligations, (e) the beneficiaries of each indemnification obligation undertakenby any Loan Party under any Loan Document and (f) the successors and permittedassigns of each of the foregoing."SHARES" means limited partners' shares regardless of class in the share capitalof the Company."SHARE PLEDGE AGREEMENT" means the share pledge agreement under Luxembourg lawbetween inter alia the Pledgor and the Collateral Agent.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 Pledgor (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 Agreement2. PLEDGE2.1 As continuing security for the due and punctual performance, and the payment when due and discharge, of the Secured Obligations, the Pledgor hereby pledges as a first priority pledge to the Pledgee, who accepts, any and all of its CPECs in the Company of whatever nature, existing or to be acquired by the Pledgor and owned by the Pledgor (including for the avoidance of doubt, any Future CPECs) (the "Pledged CPECs") and the Pledgor hereby grants to the Pledgee, a first ranking security on such Pledged CPECs and in all proceeds thereof in respect of or in exchange or replacement for the Pledged CPECs (the "Pledge") as collateral security for the prompt and complete payment and discharge of the Secured Obligations and transfers the Pledged CPECs by way of security (gage) (pursuant to article 114(3)(c) of the Commercial Code) to the Pledgee. 5 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 Pledgor shall simultaneously herewith, or in the case of CPECs issued to the Pledgor after the date hereof (i.e. any Future CPECs), immediately upon the issue thereof to the Pledgor 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 CPECs holders 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 Pledgor and the Pledgee hereby request and instruct the Company to immediately register the Pledge in the register of CPECs holders of the Company. Without prejudice to the above provisions, the Pledgor hereby irrevocably authorises and empowers 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 CPECs of the Company or Related Assets, the Pledgor undertakes to take any such steps immediately upon issuance or receipt of such Future CPECs 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 For the avoidance of doubt, in the event of a conversion of CPECs into Shares of the Company, the Pledge on such CPECs shall remain effective and be transferred automatically onto the Shares issued therefore. The Pledgor shall simultaneously with such conversion procure the inscription of the Pledge on the Shares issued upon conversion and the transfer by way of security 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 page in the register) that this inscription has been duly made. For the avoidance of doubt the Pledgor and the Pledgee hereby request and instruct the Company to immediately register the Pledge on the Shares issued upon conversion in the register of shareholders of the Company.2.5 The Pledgor, the Pledgee and the Company jointly instruct the General Partner and Manager of the Company and Me Pierre Beissel and Me Benedicte Kurth (each of Arendt and Medernach), 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 CPECs holders of the Company (or in the case of clause 2.3 the register of shareholders in which case the text shall be adapted mutatis mutandis). 6 The text to be used for the inscription shall be the following with the indications: "Pursuant to the Parent Series A and Series B CPECs Pledge Agreement dated [ ] 2004 between BCP Crystal Holdings Ltd 2 as Pledgor, Deutsche Bank AG, New York Branch as Pledgee and the Company, BCP Crystal Holdings Ltd 2has 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 under all of its [Series A/B] CPECss (as well as any Future CPECs) 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 CEPCss, 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
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