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Exhibit 10.6
GUARANTEE AND COLLATERAL AGREEMENT
dated and effective as of
April 6, 2004,
among
CELANESE AMERICAS CORPORATION,
THE OTHER GUARANTORS
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Collateral Agent
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TABLE OF CONTENTS
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ARTICLE I. Definitions.............................................................1
SECTION 1.01. Credit Agreement.....................................................1
SECTION 1.02. Other Defined Terms..................................................1
ARTICLE II. Guarantee..............................................................5
SECTION 2.01. Guarantee............................................................5
SECTION 2.02. Guarantee of Payment.................................................5
SECTION 2.03. No Limitations, etc..................................................5
SECTION 2.04. Reinstatement........................................................8
SECTION 2.05. Agreement to Pay; Subrogation........................................8
SECTION 2.06. Information..........................................................8
SECTION 2.07. Maximum Liability....................................................8
ARTICLE III. Pledge of Securities..................................................8
SECTION 3.01. Pledge...............................................................8
SECTION 3.02. Delivery of the Pledged Collateral...................................9
SECTION 3.03. Representations, Warranties and Covenants...........................10
SECTION 3.04. [Reserved]..........................................................12
SECTION 3.05. Registration in Nominee Name; Denominations.........................12
SECTION 3.06. Voting Rights; Dividends and Interest, etc..........................12
ARTICLE IV. Security Interests in Personal Property...............................13
SECTION 4.01. Security Interest...................................................13
SECTION 4.02. Representations and Warranties......................................15
SECTION 4.03. Covenants.......................................................... 17
SECTION 4.04. Other Actions.......................................................19
SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright
Collateral.......................................................20
ARTICLE V. Remedies...............................................................22
SECTION 5.01. Remedies Upon Default...............................................22
SECTION 5.02. Application of Proceeds.............................................23
SECTION 5.03. Grant of License to Use Intellectual Property.......................24
SECTION 5.04. Securities Act, etc.................................................24
SECTION 5.05. Registration, etc...................................................25
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ARTICLE VI. Indemnity, Subrogation and Subordination..............................25
SECTION 6.01. Indemnity and Subrogation...........................................25
SECTION 6.02. Contribution and Subrogation........................................26
SECTION 6.03. Subordination.......................................................26
ARTICLE VII. Miscellaneous........................................................26
SECTION 7.01. Notices.............................................................26
SECTION 7.02. Security Interest Absolute..........................................26
SECTION 7.03. [Reserved]..........................................................27
SECTION 7.04. Binding Effect; Several Agreement...................................27
SECTION 7.05. Successors and Assigns..............................................27
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification...............27
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact.........................28
SECTION 7.08. GOVERNING LAW.......................................................29
SECTION 7.09. Waivers; Amendment..................................................29
SECTION 7.10. WAIVER OF JURY TRIAL................................................29
SECTION 7.11. Severability........................................................30
SECTION 7.12. Counterparts........................................................30
SECTION 7.13. Headings............................................................30
SECTION 7.14. Jurisdiction; Consent to Service of Process.........................30
SECTION 7.15. Termination or Release..............................................31
SECTION 7.16. Additional Parties..................................................31
SECTION 7.17. Right of Set-off....................................................31
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SCHEDULES
Schedule I Subsidiary Parties
Schedule II Capital Stock; Debt Securities
Schedule III Intellectual Property
EXHIBITS
Exhibit I Form of Supplement
Exhibit II Form of Perfection Certificate
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GUARANTEE AND COLLATERAL AGREEMENT dated and effective as of April 6,
2004 (this "AGREEMENT"), among CELANESE AMERICAS CORPORATION ("CAC"), each
SUBSIDIARY PARTY a party hereto, BCP CRYSTAL US HOLDINGS CORP. (the "TERM
BORROWER") once it has become party hereto and DEUTSCHE BANK AG, NEW YORK
BRANCH, as Collateral Agent (in such capacity, the "COLLATERAL AGENT") for the
Secured Parties (as defined below).
Reference is made to the Credit Agreement dated as of April 6, 2004
(as amended, supplemented, waived or otherwise modified from time to time, the
"CREDIT AGREEMENT"), among BCP Crystal Holdings Ltd. 2, BCP Caylux Holdings
Luxembourg S.C.A. ("PARENT"), CAC, certain other subsidiaries from time to time
party thereto as borrowers under the Revolving Facility provided for therein
(the "SUBSIDIARY REVOLVING 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.
The obligations of the Lenders to extend and to maintain credit
pursuant to the Credit Agreement are conditioned upon, among other things, the
execution and delivery of this Agreement. The Term Borrower, CAC and the
Subsidiary Parties will derive substantial benefits from such extensions of
credit and are willing to execute and deliver this Agreement in order to induce
the Lenders to extend such credit. Accordingly, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. CREDIT AGREEMENT. (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the respective meanings assigned
thereto in the Credit Agreement. All terms defined in the New York UCC (as
defined herein) and not defined in this Agreement have the meanings specified
therein.
(b) The rules of construction specified in Section 1.02 of the Credit
Agreement also apply to this Agreement.
SECTION 1.02. OTHER DEFINED TERMS. As used in this Agreement, the
following terms have the meanings specified below:
"ACCOUNT DEBTOR" means any person who is or who may become obligated
to any Guarantor under, with respect to or on account of an Account.
"ARTICLE 9 COLLATERAL" has the meaning assigned such term in Section
4.01.
"CLAIMING GUARANTOR" has the meaning assigned such term in Section
6.02.
"COLLATERAL" means Article 9 Collateral and Pledged Collateral.
"CONTRIBUTING GUARANTOR" has the meaning assigned such term in Section
6.02.
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"CONTROL AGREEMENT" means a securities account control agreement or
commodity account control agreement, as applicable, in form and substance
reasonably satisfactory to the Collateral Agent.
"COPYRIGHT LICENSE" means any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Guarantor or that any Guarantor otherwise has the right
to license, or granting any right to any Guarantor under any Copyright now or
hereafter owned by any third party, and all rights of any Guarantor under any
such agreement.
"COPYRIGHTS" means all of the following now owned or hereafter
acquired by any Guarantor: (a) all copyright rights in any work subject to the
copyright laws of the United States or any other country, whether as author,
assignee, transferee or otherwise; and (b) all registrations and applications
for registration of any such Copyright in the United States or any other
country, including registrations, supplemental registrations and pending
applications for registration in the United States Copyright Office, including
those listed on SCHEDULE III.
"CREDIT AGREEMENT" has the meaning assigned to such term in the
preliminary statement of this Agreement.
"EQUITY INTERESTS" has the meaning provided in the Credit Agreement
but excluding any interest otherwise included in such definition that is not a
"security" or "financial asset" under Article VIII of the New York UCC.
"FEDERAL SECURITIES LAWS" has the meaning assigned to such term in
Section 5.04.
"GENERAL INTANGIBLES" means all "General Intangibles" as defined in
the New York UCC, including all choses in action and causes of action and all
other intangible personal property of any Guarantor of every kind and nature
(other than Accounts) now owned or hereafter acquired by any Guarantor,
including corporate or other business records, indemnification claims, contract
rights (including rights under leases, whether entered into as lessor or lessee,
Swap Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Guarantor to secure payment by an Account Debtor of any of the Accounts.
"GUARANTEED OBLIGATIONS" means, as to each Guarantor, all of the
Obligations not owed directly by it.
"GUARANTEED PARTY" means, with respect to all Guaranteed Obligations,
the Collateral Agent, the Administrative Agent and/or the Lenders to which such
Guaranteed Obligations are owed.
"GUARANTOR" means, so long as such Person is a party hereto, each of
the Term Borrower, CAC and each Subsidiary Party.
"INTELLECTUAL PROPERTY" means all intellectual and similar property of
every kind and nature now owned or hereafter acquired by any Guarantor,
including inventions, designs,
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Patents, Copyrights, Trademarks, Patent Licenses, Copyright Licenses, Trademark
Licenses, trade secrets, domain names, confidential or proprietary technical and
business information, know-how or show-how and all related documentation.
"INVESTMENT PROPERTY" has the meaning assigned such term in the New
York UCC provided that the capital stock of CAMI shall not be included in
"Investments" until such time (if any) as such stock is included in the term
PLEDGED STOCK.
"LENDERS" has the meaning assigned to such term in the preliminary
statement of this Agreement.
"LOAN DOCUMENT OBLIGATIONS" means (a) the due and punctual payment by
each Borrower of (i) the unpaid principal of and interest 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 (if any)
required to be made by each Borrower under the Credit Agreement in respect of
any Letter of Credit issued for its account, when and as due, including payments
in respect of reimbursement of disbursements and interest thereon and (iii) all
other monetary obligations of each Borrower 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 in the case of
clauses (i), (ii) and (iii), interest accruing 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 each Borrower under or pursuant to the
Credit Agreement and each of the other Loan Documents (other than this
Agreement), including to provide cash collateral.
"NEW YORK UCC" means the Uniform Commercial Code as from time to time
in effect in the State of New York.
"NOTICED EVENT OF DEFAULT" means any Event of Default as to which the
Administrative Agent has given the Term Borrower written notice that (i) such
Event of Default constitutes a Noticed Event of Default and (ii) to the extent
such notice may be given without violation of applicable law, the Collateral
Agent intends, as a result of such Event of Default (alone or among others), to
exercise its rights hereunder, provided that an Event of Default under Section
7.01(h) or (i) of the Credit Agreement shall in any event constitute a Noticed
Event of Default.
"OBLIGATIONS" means (a) the Loan Document Obligations, (b) the due and
punctual payment and performance of all the obligations of each Guarantor under
and pursuant to this Agreement, (c) the due and punctual payment and performance
of all obligations of each Guarantor 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 (d) the due and punctual payment
and performance of all obligations of each Guarantor in respect of overdrafts
and related liabilities owed to a Lender or any of its Affiliates and arising
from cash management services (including treasury, deposi-
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tory, overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements).
"PATENT LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
covered by a Patent, now or hereafter owned by any Guarantor or that any
Guarantor otherwise has the right to license or granting to any Guarantor any
right to make, use or sell any invention covered by a Patent, now or hereafter
owned by any third party.
"PATENTS" means all of the following now owned or hereafter acquired
by any Guarantor: (a) all letters patent of the United States or the equivalent
thereof in any other country, and all applications for letters patent of the
United States or the equivalent thereof in any other country, including those
listed on Schedule III, and (b) all reissues, continuations, divisions,
continuations-in-part or extensions thereof, and the inventions disclosed or
claimed therein, including the right to make, use and/or sell the inventions
disclosed or claimed therein.
"PERFECTION CERTIFICATE" means a certificate substantially in the form
of EXHIBIT II, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Responsible Officer of CAC and each
CAC Guarantor Subsidiary (determined as of the Closing Date).
"PLEDGED COLLATERAL" has the meaning assigned to such term in Section
3.01.
"PLEDGED DEBT SECURITIES" has the meaning assigned to such term in
Section 3.01.
"PLEDGED SECURITIES" means any promissory notes, stock certificates or
other certificated securities now or hereafter included in the Pledged
Collateral, including all certificates, instruments or other documents
representing or evidencing any Pledged Collateral.
"PLEDGED STOCK" has the meaning assigned to such term in Section 3.01.
"SECURED PARTIES" means with respect to all Obligations, as
appropriate, (i) the Lenders, (ii) the Administrative Agent and the Collateral
Agent, (iii) each Issuing Bank, (iv) each counterparty to any Swap Agreement
entered into with a Guarantor the obligations under which constitute
Obligations, (v) each Lender or Affiliate owed obligations which constitute
Obligations under clause (d) of the definition thereof, (vi) the beneficiaries
of each indemnification obligation undertaken by any Guarantor under any Loan
Document and (vii) the successors and permitted assigns of each of the
foregoing.
"SECURITY INTEREST" has the meaning assigned to such term in Section
4.01.
"SPECIFIED BORROWER" has the meaning assigned to such term in Section
6.01.
"SUBSIDIARY PARTY" means, so long as a party hereto, each CAC
Guarantor Subsidiary in existence on the Closing Date and each other subsidiary
required to become party hereto pursuant to Section 7.16.
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"SUBSIDIARY REVOLVING BORROWERS" has the meaning assigned such term in
the preliminary statement of this Agreement.
"SUPPLEMENT" shall mean an instrument in the form of Exhibit I hereto.
"TRADEMARK LICENSE" means any written agreement, now or hereafter in
effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Guarantor or that any Guarantor otherwise has the right
to license, or granting to any Guarantor any right to use any Trademark now or
hereafter owned by any third party.
"TRADEMARKS" means all of the following now owned or hereafter
acquired by any Guarantor: (a) all trademarks, service marks, corporate names,
company names, business names, fictitious business names, trade dress, logos,
other source or business identifiers, designs and general intangibles of like
nature, now existing or hereafter adopted or acquired, all registrations thereof
(if any), and all registration applications filed in connection therewith,
including registrations and applications in the United States Patent and
Trademark Office or any similar offices in any State of the United States or any
other country or any political subdivision thereof, and all renewals thereof,
including those listed on SCHEDULE III and (b) all goodwill associated therewith
or symbolized thereby.
ARTICLE II.
GUARANTEE
SECTION 2.01. GUARANTEE. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of its
Guaranteed Obligations. Each Guarantor further agrees that its Guaranteed
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any of its Guaranteed Obligations.
Each Guarantor waives presentment to, demand of payment from and protest to any
Person of any of its Guaranteed Obligations, and also waives notice of
acceptance of its guarantee and notice of protest for nonpayment.
SECTION 2.02. GUARANTEE OF PAYMENT. Each Guarantor further agrees that
its guarantee hereunder constitutes a guarantee of payment when due and not of
collection, and waives any right to require that any resort be had by the
Collateral Agent or any other Secured Party to any security held for the payment
of its Guaranteed Obligations or to any balance of any Deposit Account or credit
on the books of the Collateral Agent or any other Secured Party in favor of any
Person.
SECTION 2.03. NO LIMITATIONS, ETC. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided for in Section 7.15, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of its Guaranteed
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Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by:
(i) the failure of the Administrative Agent, the Collateral Agent
or any other Person to assert any claim or demand or to exercise or enforce
any right or remedy under the provisions of any Loan Document or otherwise;
(ii) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, any Loan Document or any
other agreement, including with respect to any other Guarantor under this
Agreement;
(iii) any default, failure or delay, willful or otherwise, in the
performance of the Obligations;
(iv) any other act or omission that may or might in any manner or to
any extent vary the risk of any Guarantor or otherwise operate as a
discharge of any Guarantor as a matter of law or equity (other than the
indefeasible payment in full in cash of all the Obligations),
(v) any illegality, lack of validity or enforceability of any
Obligation,
(vi) any change in the corporate existence, structure or ownership
of any Loan Party, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting any Loan Party or its assets or any resulting
release or discharge of any Obligation,
(vii) the existence of any claim, set-off or other rights that the
Guarantor may have at any time against any Loan Party, the Collateral
Agent, or any other corporation or Person, whether in connection herewith
or any unrelated transactions, provided that nothing herein will prevent
the assertion of any such claim by separate suit or compulsory
counterclaim,
(viii) any law, regulation, decree or order of any jurisdiction, or
any other event, affecting any term of any of its Guaranteed Obligations or
the Collateral Agent's rights with respect thereto, including, without
limitation:
(A) the application of any such law, regulation, decree or
order, including any prior approval, which would prevent the exchange
of a foreign currency for Dollars or such other currency in which its
Guaranteed Obligations are due, or the remittance of funds outside of
such jurisdiction or the unavailability of Dollars or any such other
currency in any legal exchange market in such jurisdiction in
accordance with normal commercial practice; or
(B) a declaration of banking moratorium or any suspension of
payments by banks in such jurisdiction or the imposition by such
jurisdiction or any governmental authority thereof of any moratorium
on, the required rescheduling or restructuring of, or required
approval of payments on, any indebtedness in such jurisdiction; or
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(C) any expropriation, confiscation, nationalization or
requisition by such country or any governmental authority that
directly or indirectly deprives any Borrower of any assets or their
use, or of the ability to operate its business or a material part
thereof; or
(D) any war (whether or not declared), insurrection,
revolution, hostile act, civil strife or similar events occurring in
such jurisdiction which has the same effect as the events described in
clause (A), (B) or (C) above (in each of the cases contemplated in
clauses (A) through (D) above, to the extent occurring or existing on
or at any time after the date of this Agreement), and
(x) any other circumstance (including without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Collateral Agent that might otherwise constitute a
defense to, or a legal or equitable discharge of, any Loan Party or the
Guarantor or any other guarantor or surety.
Each Guarantor expressly authorizes the respective Guaranteed Parties to take
and hold security for the payment and performance of its Guaranteed Obligations,
to exchange, waive or release any or all such security (with or without
consideration), to enforce or apply such security and direct the order and
manner of any sale thereof in their sole discretion or to release or substitute
any one or more other guarantors or obligors upon or in respect of its
Guaranteed Obligations, all without affecting the obligations of such Guarantor
hereunder.
Without limiting the generality of the foregoing, with respect to any of its
Guaranteed Obligations that, in accordance with the express terms of any
agreement pursuant to which such Guaranteed Obligations were created, were
denominated in Dollars or any currency other than the currency of the
jurisdiction where a Borrower is principally located, each Guarantor guarantees
that it shall pay the Collateral Agent strictly in accordance with the express
terms of such agreement, including in the amounts and in the currency expressly
agreed to thereunder, irrespective of and without giving effect to any laws of
the jurisdiction where a Borrower is principally located in effect from time to
time, or any order, decree or regulation in the jurisdiction where a Borrower is
principally located.
(b) To the fullest extent permitted by applicable law, each Guarantor
waives any defense based on or arising out of any defense of any Borrower or any
other Loan Party or the unenforceability of its Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
any Borrower or any other Loan Party, other than the indefeasible payment in
full in cash of all its Guaranteed Obligations. The Collateral Agent and the
other Guaranteed Parties may, at their election, foreclose on any security held
by one or more of them by one or more judicial or nonjudicial sales, accept an
assignment of any such security in lieu of foreclosure, compromise or adjust any
part of the Obligations, make any other accommodation with any Borrower or any
other Loan Party or exercise any other right or remedy available to them against
any Borrower or any other Loan Party, without affecting or impairing in any way
the liability of any Guarantor hereunder except to the extent its Guaranteed
Obligations have been fully and indefeasibly paid in full in cash. To the
fullest extent permitted by applicable law, each Guarantor waives any defense
arising out of any such election even though such election operates, pursuant to
applicable law, to impair or to extinguish any right of reimbursement or
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subrogation or other right or remedy of such Guarantor against any Borrower or
any other Loan Party, as the case may be, or any security.
SECTION 2.04. REINSTATEMENT. Each Guarantor agrees that its guarantee
hereunder shall continue to be effective or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of its Guaranteed
Obligations is rescinded or must otherwise be restored by the Administrative
Agent or any other Guaranteed Party upon the bankruptcy or reorganization of any
Borrower, any other Loan Party or otherwise.
SECTION 2.05. AGREEMENT TO PAY; SUBROGATION. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Guaranteed Party has at law or in equity against any Guarantor by
virtue hereof, upon the failure of any Borrower or any other Loan Party to pay
any Guaranteed Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise, each
Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the
Collateral Agent for distribution to the applicable Guaranteed Parties in cash
the amount of such unpaid Guaranteed Obligation. Upon payment by any Guarantor
of any sums to the Collateral Agent as provided above, all rights of such
Guarantor against such Borrower, or other Loan Party or any other Guarantor
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subject to
Article VI.
SECTION 2.06. INFORMATION. Each Guarantor assumes all responsibility
for being and keeping itself informed of the financial condition and assets of
each Borrower and each other Loan Party, and of all other circumstances bearing
upon the risk of nonpayment of its Guaranteed Obligations and the nature, scope
and extent of the risks that such Guarantor assumes and incurs hereunder, and
agrees that none of the Collateral Agent or the other Guaranteed Parties will
have any duty to advise such Guarantor of information known to it or any of them
regarding such circumstances or risks.
SECTION 2.07. MAXIMUM LIABILITY. Anything herein or in any other Loan
Document to the contrary notwithstanding, the maximum liability of each
Guarantor hereunder and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor under applicable federal
and state laws relating to the insolvency of debtors (after giving effect to the
right of contribution established in Section 6.02).
ARTICLE III.
PLEDGE OF SECURITIES
SECTION 3.01. PLEDGE. As security for the payment or performance, as
the case may be, in full of its Obligations, each Guarantor hereby assigns and
pledges to the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, and hereby grants to the Collateral Agent, its
successors and assigns, for the ratable benefit of the Secured Parties, a
security interest in all of such Guarantor's right, title and interest in, to
and under (a) the Equity Interests directly owned by it on the Closing Date
(which shall be listed on Schedule II) and any other Equity Interests obtained
in the future by such Guarantor and any certificates representing all such
Equity Interests (the "PLEDGED STOCK"); PROVIDED that the Pledged Stock shall
not include
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(i) more than 65% of the issued and outstanding voting Equity Interests of any
Foreign Subsidiary, (ii) to the extent applicable law requires that a Subsidiary
of such Guarantor issue directors' qualifying shares, such shares or nominee or
other similar shares, (iii) any Equity Interests with respect to which the
Collateral and Guarantee Requirement or the other paragraphs of Section 5.10 of
the Credit Agreement need not be satisfied by reason of Section 5.10(g) of the
Credit Agreement, (iv) any Equity Interests of a Subsidiary to the extent that,
as of the Closing Date, and for so long as, such a pledge of such Equity
Interests would violate a contractual obligation binding on such Equity
Interests, (v) any Equity Interests of a Subsidiary of a Guarantor acquired
after the Closing Date if, and to the extent that, and for so long as, (A) a
pledge of such Equity Interests would violate applicable law or any contractual
obligation binding upon such Subsidiary and (B) such law or obligation existed
at the time of the acquisition thereof and was not created or made binding upon
such Subsidiary in contemplation of or in connection with the acquisition of
such Subsidiary (PROVIDED that the foregoing clause (B) shall not apply in the
case of a joint venture, including a joint venture that is a Subsidiary)
provided that such each Guarantor shall use its commercially reasonable efforts
to avoid any such restrictions classified in this clause (v), (vi) any Equity
Interests of a Person that is not directly or indirectly a Subsidiary or (vii)
prior to the date six months after the Closing Date, any of the capital stock of
CAMI and shall include such stock on and after such date only to the extent the
CAMI Sale has not been consummated prior to such six month date; (b)(i) the debt
securities listed opposite the name of such Guarantor on SCHEDULE II, (ii) to
the extent required by Section 3.02(b), any debt securities in the future issued
to, or acquired by, such Guarantor and (iii) the promissory notes and any other
instruments, if any, evidencing such debt securities (the "PLEDGED DEBT
SECURITIES"); (c) subject to Section 3.06, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of, in exchange for or
upon the conversion of, and all other proceeds received in respect of, the
securities referred to in clauses (a) and (b) above; (d) subject to Section
3.06, all rights and privileges of such Guarantor with respect to the securities
and other property referred to in clauses (a), (b) and (c) above; and (e) all
proceeds of any of the foregoing (the items referred to in clauses (a) through
(e) above being collectively referred to as the "PLEDGED COLLATERAL").
TO HAVE AND TO HOLD the Pledged Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Collateral Agent, its successors and assigns, for the ratable
benefit of the Secured Parties, forever; SUBJECT, HOWEVER, to the terms,
covenants and conditions hereinafter set forth.
SECTION 3.02. DELIVERY OF THE PLEDGED COLLATERAL. (a) Each Guarantor
agrees promptly, upon its first becoming a Guarantor hereunder or thereafter to
the extent first acquiring same (or in the case of the capital stock of CAMI on
the date six months after the Closing Date if such stock is to constitute
Pledged Stock on such date), to deliver or cause to be delivered to the
Collateral Agent, for the ratable benefit of the Secured Parties, any and all
Pledged Securities to the extent such Pledged Securities, in the case of
promissory notes or other instruments evidencing Indebtedness, are required to
be delivered pursuant to paragraph (b) of this Section 3.02.
(b) Each Guarantor will cause any Indebtedness for borrowed money
having an aggregate principal amount that has a Dollar Equivalent in excess of
$10,000,000 (other than
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intercompany current liabilities incurred in the ordinary course of business)
owed to such Guarantor by any person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Collateral Agent, for the
ratable benefit of the Secured Parties, pursuant to the terms hereof. To the
extent any such promissory note is a demand note, each Guarantor party thereto
agrees, if requested by the Collateral Agent, to immediately demand payment
thereunder upon an Event of Default specified under Section 7.01(b), (c), (f),
(h) or (i) of the Credit Agreement.
(c) Upon delivery to the Collateral Agent, (i) any Pledged Securities
required to be delivered pursuant to the foregoing paragraphs (a) and (b) of
this Section 3.02 shall be accompanied by stock powers or note powers, as
applicable, duly executed in blank or other instruments of transfer reasonably
satisfactory to the Collateral Agent and by such other instruments and documents
as the Collateral Agent may reasonably request and (ii) all other property
composing part of the Pledged Collateral delivered pursuant to the terms of this
Agreement shall be accompanied to the extent necessary to perfect the security
interest in or allow realization on the Pledged Collateral by proper instruments
of assignment duly executed by the applicable Guarantor and such other
instruments or documents (including issuer acknowledgments in respect of
uncertificated securities) as the Collateral Agent may reasonably request. Each
delivery (or subsequent confirmation by a successor of the prior delivery) of
Pledged Securities hereunder shall be accompanied by a schedule describing the
securities, which schedule shall be attached hereto as SCHEDULE II and made a
part of Schedule II; PROVIDED that failure to attach any such schedule hereto
shall not affect the validity of such pledge of such Pledged Securities. Each
schedule so delivered shall supplement any prior schedules so delivered.
SECTION 3.03. REPRESENTATIONS, WARRANTIES AND COVENANTS. The
Guarantors, jointly and severally, represent, warrant and covenant to and with
the Collateral Agent, for the ratable benefit of the Secured Parties, that:
(a) SCHEDULE II correctly sets forth the percentage of the issued and
outstanding shares of each class of the Equity Interests of the issuer
thereof represented by the Pledged Stock and includes all Equity Interests,
debt securities and promissory notes or instruments evidencing Indebtedness
required to be pledged hereunder in order to satisfy the Collateral and
Guarantee Requirement;
(b) the Pledged Stock and Pledged Debt Securities (solely with
respect to Pledged Debt Securities issued by a person that is not a
Subsidiary of Holdings or an Affiliate of any such subsidiary, to the best
of each Guarantor's knowledge) have been duly and validly authorized and
issued by the issuers thereof and (i) in the case of Pledged Stock, are
fully paid and nonassessable and (ii) in the case of Pledged Debt
Securities (solely with respect to Pledged Debt Securities issued by a
person that is not a Subsidiary of Holdings or an Affiliate of any such
subsidiary, to the best of each Guarantor's knowledge) are legal, valid and
binding obligations of the issuers thereof subject to (i) the effects of
bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance
or other similar laws affecting creditors' rights generally, (ii) general
principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and (iii) implied covenants
of good faith and fair dealing;
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(c) except for the security interests granted hereunder, each
Guarantor (i) is and, subject to any transfers made in compliance with the
Credit Agreement, will continue to be the direct owner, beneficially and of
record, of the Pledged Securities indicated on SCHEDULE II as owned by such
Guarantor, (ii) holds the same free and clear of all Liens, other than
Liens permitted under Section 6.02 of the Credit Agreement, (iii) will make
no assignment, pledge, hypothecation or transfer of, or create or permit to
exist any security interest in or other Lien on, the Pledged Collateral,
other than pursuant to a transaction permitted by the Credit Agreement and
other than Liens permitted under Section 6.02 of the Credit Agreement and
(iv) subject to the rights of such Guarantor under the Loan Documents to
dispose of Pledged Collateral, will defend its title or interest hereto or
therein against any and all Liens (other than Liens permitted under Section
6.02 of the Credit Agreement), however arising, of all persons;
(d) except for restrictions and limitations imposed by the Loan
Documents or securities laws generally or otherwise permitted to exist
pursuant to the terms of the Credit Agreement, the Pledged Collateral is
and will continue to be freely transferable and assignable, and none of the
Pledged Collateral is or will be subject to any option, right of first
refusal, shareholders agreement, charter or by-law provisions or
contractual restriction of any nature that might, in any material respect,
prohibit, impair, delay or adversely affect the pledge of such Pledged
Collateral hereunder, the sale or disposition thereof pursuant hereto or
the exercise by the Collateral Agent of rights and remedies hereunder;
(e) each Guarantor has the power and authority to pledge the Pledged
Collateral pledged by it hereunder in the manner hereby done or
contemplated;
(f) no consent or approval of any Governmental Authority, any
securities exchange or any other person was or is necessary to the validity
of the pledge effected hereby (other than such as have been obtained and
are in full force and effect);
(g) by virtue of the execution and delivery by the Guarantors of this
Agreement, when any Pledged Securities are delivered to the Collateral
Agent, for the ratable benefit of the Secured Parties, in accordance with
this Agreement, the Collateral Agent will obtain, for the ratable benefit
of the Secured Parties, a legal, valid and perfected first priority lien
upon and security interest in such Pledged Securities as security for the
payment and performance of the Obligations;
(h) each Guarantor does not own on the Closing Date, any security
constituting an equity interest in any Person to the extent such security
constitutes an uncertificated security and will not acquire any such
uncertificated security thereafter except to the extent it has complied
with the provisions of the third sentence of Section 4.04(c), to the extent
applicable thereto; and
(i) the pledge effected hereby is effective to vest in the Collateral
Agent, for the ratable benefit of the Secured Parties, the rights of the
Collateral Agent in the Pledged Collateral as set forth herein.
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SECTION 3.04. [Reserved].
SECTION 3.05. REGISTRATION IN NOMINEE NAME; DENOMINATIONS. The
Collateral Agent, on behalf of the Secured Parties, shall have the right (in its
sole and absolute discretion) to hold the Pledged Securities in the name of the
applicable Guarantor, endorsed or assigned in blank or in favor of the
Collateral Agent or, if a Noticed Event of Default shall have occurred and be
continuing, in its own name as pledgee or the name of its nominee (as pledgee or
as sub-agent). Each Guarantor will promptly give to the Collateral Agent copies
of any notices or other communications received by it with respect to Pledged
Securities registered in the name of such Guarantor.
SECTION 3.06. VOTING RIGHTS; DIVIDENDS AND INTEREST, ETC. (a) Unless
and until a Noticed Event of Default shall have occurred and be continuing:
(i) Each Guarantor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner of Pledged
Securities or any part thereof for any purpose consistent with the terms of
this Agreement, the Credit Agreement and the other Loan Documents; PROVIDED
that such rights and powers shall not be exercised in any manner that could
reasonably be expected to materially and adversely affect the rights
inuring to a holder of any Pledged Securities, the rights and remedies of
any of the Collateral Agent or the other Secured Parties under this
Agreement, the Credit Agreement or any other Loan Document or the ability
of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall promptly execute and deliver to each
Guarantor, or cause to be executed and delivered to such Guarantor, all
such proxies, powers of attorney and other instruments as such Guarantor
may reasonably request for the purpose of enabling such Guarantor to
exercise the voting and/or consensual rights and powers it is entitled to
exercise pursuant to subparagraph (i) above.
(iii) Each Guarantor shall be entitled to receive and retain any and
all dividends, interest, principal and other distributions paid on or
distributed in respect of the Pledged Securities to the extent and only to
the extent that (x) such dividends, interest, principal and other
distributions are permitted by, and otherwise paid or distributed in
accordance with, the terms and conditions of the Credit Agreement, the
other Loan Documents and applicable laws and (y) such payment on
distribution is not payable directly to the Collateral Agent pursuant to
the terms of the applicable Pledged Securities; PROVIDED that any noncash
dividends, interest, principal or other distributions that constitute
Pledged Securities (whether resulting from a subdivision, combination or
reclassification of the outstanding Equity Interests of the issuer of any
Pledged Securities or received in exchange for Pledged Securities or any
part thereof, or in redemption thereof, or as a result of any merger,
consolidation, acquisition or other exchange of assets to which such issuer
may be a party or otherwise) shall be and become part of the Pledged
Collateral, and, if received by any Guarantor, shall not be commingled by
such Guarantor with any of its other funds or property but shall be held
separate and apart therefrom, shall be held in trust for the benefit of the
Collateral Agent,
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for the ratable benefit of the Secured Parties, and shall be forthwith
delivered to the Collateral Agent, for the ratable benefit of the Secured
Parties, in the same form as so received (accompanied by stock powers duly
executed in blank or other appropriate instruments of transfer satisfactory
to the Collateral Agent).
(b) Upon the occurrence and during the continuance of a Noticed
Event of Default, all rights of any Guarantor to dividends, interest, principal
or other distributions that such Guarantor is authorized to receive pursuant to
paragraph (a)(iii) of this Section 3.06 shall cease, and all such rights shall
thereupon become vested, for the ratable benefit of the Secured Parties, in the
Collateral Agent which shall have the sole and exclusive right and authority to
receive and retain such dividends, interest, principal or other distributions.
All dividends, interest, principal or other distributions received by any
Guarantor contrary to the provisions of this Section 3.06 shall not be
commingled by such Guarantor with any of its other funds or property but shall
be held separate and apart therefrom, shall be held in trust for the benefit of
the Collateral Agent, for the ratable benefit of the Secured Parties, and shall
be forthwith delivered to the Collateral Agent, for the ratable benefit of the
Secured Parties, in the same form as so received (accompanied by stock powers
duly executed in blank or other appropriate instruments of transfer reasonably
satisfactory to the Collateral Agent). Any and all money and other property paid
over to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 5.02. After
all Events of Default have been cured or waived and the Term Borrower has
delivered to the Collateral Agent a certificate to that effect, the Collateral
Agent shall promptly repay to each Guarantor (without interest) all dividends,
interest, principal or other distributions that such Guarantor would otherwise
have been permitted to retain pursuant to the terms of paragraph (a)(iii) of
this Section 3.06 and that remain in such account.
(c) Upon the occurrence and during the continuance of a Noticed
Event of Default, all rights of any Guarantor to exercise the voting and/or
consensual rights and powers it is entitled to exercise pursuant to paragraph
(a)(i) of this Section 3.06, and the obligations of the Collateral Agent under
paragraph (a)(ii) of this Section 3.06, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, for the ratable benefit of the
Secured Parties, which shall have the sole and exclusive right and authority to
exercise such voting and consensual rights and powers; PROVIDED that, unless
otherwise directed by the Required Lenders, the Collateral Agent shall have the
right from time to time following and during the continuance of an Event of
Default to permit the Guarantors to exercise such rights. After all Noticed
Events of Default have been cured or waived and the Term Borrower has delivered
to the Collateral Agent a certificate to that effect, each Guarantor shall have
the right to exercise the voting and/or consensual rights and powers that such
Guarantor would otherwise have been entitled to exercise pursuant to the terms
of paragraph (a)(i) above.
ARTICLE IV.
SECURITY INTERESTS IN PERSONAL PROPERTY
SECTION 4.01. SECURITY INTEREST. (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Guarantor
hereby assigns and pledges to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured
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Parties, and hereby grants to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, a security interest (the
"SECURITY INTEREST") in all right, title and interest in or to any and all of
the following assets and properties now owned or at any time hereafter acquired
by such Guarantor or in which such Guarantor now has or at any time in the
future may acquire any right, title or interest (collectively, the "ARTICLE 9
COLLATERAL"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents;
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Goods;
(viii) all Instruments;
(ix) all Inventory;
(x) all Investment Property;
(xi) all Letter-of-Credit Rights;
(xiii) all Commercial Tort Claims;
(xiii) all books and records pertaining to the Article 9 Collateral;
and
(xiv) to the extent not otherwise included, all proceeds, Supporting
Obligations and products of any and all of the foregoing and all collateral
security and guarantees given by any person with respect to any of the
foregoing.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall
not constitute a grant of a security interest in (a) any vehicle covered by a
certificate of title or ownership, (b) any assets (including Equity Interests)
with respect to which the Collateral and Guarantee Requirement or the other
paragraphs of Section 5.10 of the Credit Agreement need not be satisfied by
reason of Section 5.10(g) of the Credit Agreement, (c) any assets to the extent
that, as of the Closing Date, and for so long as, such grant of a security
interest would violate a contractual obligation or applicable law binding on
such asset, (d) any property of any Person acquired by a Guarantor after the
Closing Date pursuant to Section 6.04(l) of the Credit Agreement, if, and to the
extent that, and for so long as, (A) such grant of a security interest would
violate applicable law or any contractual obligation binding upon such property
and (B) such law or obligation existed at the time of the acquisition thereof
and was not created or made binding upon such property in contemplation of or in
connection with the acquisition of such Subsidiary (PROVIDED
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that the foregoing clause (B) shall not apply in the case of a joint venture,
including a joint venture that is a Subsidiary) PROVIDED that each Guarantor
shall use its commercially reasonable efforts to avoid any such restriction
described in this clause (d), or (e) any Letter of Credit Rights to the extent
any Guarantor is required by applicable law to apply the proceeds of a drawing
of such Letter of Credit for a specified purpose.
(b) Each Guarantor hereby irrevocably authorizes the Collateral Agent
at any time and from time to time to file in any relevant jurisdiction any
initial financing statements (including fixture filings) with respect to the
Article 9 Collateral or any part thereof and amendments thereto that contain the
information required by Article 9 of the Uniform Commercial Code of each
applicable jurisdiction for the filing of any financing statement or amendment,
including (i) whether such Guarantor is an organization, the type of
organization and any organizational identification number issued to such
Guarantor, (ii) in the case of a financing statement filed as a fixture filing,
a sufficient description of the real property to which such Article 9 Collateral
relates and (iii) a description of collateral that describes such property in
any other manner as the Collateral Agent may reasonably determine is necessary
or advisable to ensure the perfection of the security interest in the Article 9
Collateral granted under this Agreement, including describing such property as
"all assets" or "all property". Each Guarantor agrees to provide such
information to the Collateral Agent promptly upon request.
The Collateral Agent is further authorized to file with the United
States Patent and Trademark Office or United States Copyright Office (or any
successor office or any similar office in any other country) such documents as
may be necessary or advisable for the purpose of perfecting, confirming,
continuing, enforcing or protecting the Security Interest granted by each
Guarantor, without the signature of any Guarantor, and naming any Guarantor or
the Guarantors as debtors and the Collateral Agent as secured party.
(c) The Security Interest is granted as security only and shall not
subject the Collateral Agent or any other Secured Party to, or in any way alter
or modify, any obligation or liability of any Guarantor with respect to or
arising out of the Article 9 Collateral.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES. The Guarantors jointly
and severally represent and warrant to the Collateral Agent and the Secured
Parties that:
(a) Each Guarantor has good and valid rights in and title to all
material Article 9 Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to
grant to the Collateral Agent the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform its
obligations in accordance with the terms of this Agreement, without the
consent or approval of any other person other than any consent or approval
that has been obtained and is in full force and effect.
(b) The Perfection Certificate has been duly prepared, completed and
executed and the information set forth therein, including the exact legal
name of each Guarantor, is correct and complete, in all material respects,
as of the Restructuring Date. Uniform Commercial Code financing statements
(including fixture filings, as applicable) or other appropriate filings,
recordings or registrations containing a description of the
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Article 9 Collateral have been prepared by the Collateral Agent based upon
the information provided to the Collateral Agent in the Perfection
Certificate for filing in each governmental, municipal or other office
specified in SCHEDULE 7 to the Perfection Certificate (or specified by
notice from the Term Borrower to the Collateral Agent after the Closing
Date in the case of filings, recordings or registrations required by
Section 5.10 of the Credit Agreement), and constitute all the filings,
recordings and registrations (other than filings required to be made in the
United States Patent and Trademark Office and the United States Copyright
Office in order to perfect the Security Interest in Article 9 Collateral
consisting of United States issued Patents and applications, United States
registered Trademarks and applications and United States registered
Copyrights) that are necessary to publish notice of and protect the
validity of and to establish a legal, valid and perfected security interest
in favor of the Collateral Agent (for the ratable benefit of the Secured
Parties) in respect of all Article 9 Collateral in which the Security
Interest may be perfected by filing, recording or registration in the
United States (or any political subdivision thereof) and its territories
and possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the
filing of continuation statements or amendments. Each Guarantor represents
and warrants that a fully executed agreement in the form hereof (or a short
form hereof which form shall be reasonably acceptable to the Collateral
Agent) containing a description of all Article 9 Collateral consisting of
United States issued Patents (and Patents for which United States
applications are pending), United States registered Trademarks (and
Trademarks for which United States registration applications are pending)
and United States registered Copyrights (and Copyrights for which United
States registration applications are pending) has been delivered to the
Collateral Agent for recording with the United States Patent and Trademark
Office and the United States Copyright Office pursuant to 35 U.S.C. Section
261, 15 U.S.C. Section 1060 or 17 U.S.C. Section 205 and the regulations
thereunder, as applicable, and reasonably requested by the Collateral
Agent, to protect the validity of and to establish a legal, valid and
perfected security interest in favor of the Collateral Agent, for the
ratable benefit of the Secured Parties, in respect of all Article 9
Collateral consisting of the foregoing in which a security interest may be
perfected by recording with the United States Patent and Trademark Office
and the United States Copyright Office.
(c) The Security Interest constitutes (i) a legal and valid security
interest in all the Article 9 Collateral securing the payment and
performance of the Obligations, (ii) subject to the filings described in
Section 4.02(b), a perfected security interest in all Article 9 Collateral
in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United
States (or any political subdivision thereof) and its territories and
possessions pursuant to the New York UCC or other applicable law in such
jurisdictions and (iii) a security interest that shall be perfected in all
Article 9 Collateral in which a security interest may be perfected upon the
receipt and recording of this Agreement with the United States Patent and
Trademark Office and the United States Copyright Office, as applicable. The
Security Interest is and shall be prior to any other Lien on any of the
Article 9 Collateral, other than Liens expressly permitted pursuant to
Section 6.02 of the Credit Agreement or arising by operation of law.
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(d) The Article 9 Collateral is owned by the Guarantors free and
clear of any Lien, other than Liens expressly permitted pursuant to Section
6.02 of the Credit Agreement or arising by operation of law. None of the
Guarantors has filed or consented to the filing of (i) any financing
statement or analogous document under the New York UCC or any other
applicable laws covering any Article 9 Collateral, (ii) any assignment in
which any Guarantor assigns any Article 9 Collateral or any security
agreement or similar instrument covering any Article 9 Collateral with the
United States Patent and Trademark Office or the United States Copyright
Office or (iii) any assignment in which any Guarantor assigns any Article 9
Collateral or any security agreement or similar instrument covering any
Article 9 Collateral with any foreign governmental, municipal or other
office, which financing statement or analogous document, assignment,
security agreement or similar instrument is still in effect, except, in
each case, for Liens expressly permitted pursuant to Section 6.02 of the
Credit Agreement.
(e) None of the Guarantors holds any Commercial Tort Claim
individually in excess of $1,000,000 as of the Closing Date except as
indicated on the Perfection Certificate.
(f) All Accounts have been originated by the Guarantors and all
Inventory has been acquired by the Guarantors in the ordinary course of
business.
SECTION 4.03. COVENANTS. (a) Each Guarantor agrees promptly to notify
the Collateral Agent in writing of any change (i) in its corporate name, (ii) in
its identity or type of organization or corporate structure, (iii) in its
Federal Taxpayer Identification Number or organizational identification number
or (iv) in its jurisdiction of organization. Each Guarantor agrees promptly to
provide the Collateral Agent with certified organizational documents reflecting
any of the changes described in the immediately preceding sentence. Each
Guarantor agrees not to effect or permit any change referred to in the first
sentence of this paragraph (a) unless all filings have been made, or are
reasonably concurrently made, under the applicable Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected first priority
security interest in all the Article 9 Collateral, for the ratable benefit of
the Secured Parties. Each Guarantor agrees promptly to notify the Collateral
Agent if any material portion of the Article 9 Collateral owned or held by such
Guarantor is damaged or destroyed.
(b) Subject to the rights of such Guarantor under the Loan Documents
to dispose of Collateral, each Guarantor shall, at its own expense, take any and
all actions necessary to defend title to the Article 9 Collateral against all
persons and to defend the Security Interest of the Collateral Agent, for the
ratable benefit of the Secured Parties, in the Article 9 Collateral and the
priority thereof against any Lien not expressly permitted pursuant to Section
6.02 of the Credit Agreement.
(c) Each Guarantor agrees, at its own expense, to execute,
acknowledge, deliver and cause to be duly filed all such further instruments and
documents and take all such actions as the Collateral Agent may from time to
time reasonably request to better assure, preserve, protect and perfect the
Security Interest and the rights and remedies created hereby, including the
payment of any fees and taxes required in connection with the execution and
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delivery of this Agreement, the granting of the Security Interest and the filing
of any financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable under or in connection
with any of the Article 9 Collateral that is in excess of $10,000,000 shall be
or become evidenced by any promissory note or other instrument, such note or
instrument shall be promptly pledged and delivered to the Collateral Agent, for
the ratable benefit of the Secured Parties, accompanied by executed instruments
of transfer reasonably satisfactory to the Collateral Agent.
(d) After the occurrence of an Event of Default and during the
continuance thereof, the Collateral Agent shall have the right to verify under
reasonable procedures the validity, amount, quality, quantity, value, condition
and status of, or any other matter relating to, the Article 9 Collateral,
including, in the case of Accounts or Article 9 Collateral in the possession of
any third person (following notice to the Term Borrower of its intention to do
so), by contacting Account Debtors or the third person possessing such Article 9
Collateral for the purpose of making such a verification. The Collateral Agent
shall have the right to share any information it gains from such inspection or
verification with any Secured Party.
(e) At its option at any time which an Event of Default exists, the
Collateral Agent may discharge past due taxes, assessments, charges, fees,
Liens, security interests or other encumbrances at any time levied or placed on
the Article 9 Collateral and not permitted pursuant to Section 6.02 of the
Credit Agreement, and may pay for the maintenance and preservation of the
Article 9 Collateral to the extent any Guarantor fails to do so as required by
the Credit Agreement or this Agreement, and each Guarantor jointly and severally
agrees to reimburse the Collateral Agent on demand for any reasonable payment
made or any reasonable expense incurred by the Collateral Agent pursuant to the
foregoing authorization; PROVIDED, HOWEVER, that nothing in this Section 4.03(e)
shall be interpreted as excusing any Guarantor from the performance of, or
imposing any obligation on the Collateral Agent or any Secured Party to cure or
perform, any covenants or other promises of any Guarantor with respect to taxes,
assessments, charges, fees, Liens, security interests or other encumbrances and
maintenance as set forth herein or in the other Loan Documents.
(f) Each Guarantor (rather than the Collateral Agent or any Secured
Party) shall remain liable for the observance and performance of all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Article 9 Collateral and each
Guarantor jointly and severally agrees to indemnify and hold harmless the
Collateral Agent and the Secured Parties from and against any and all liability
for such performance.
(g) None of the Guarantors shall make or permit to be made an
assignment, pledge or hypothecation of the Article 9 Collateral or shall grant
any other Lien in respect of the Article 9 Collateral, except as expressly
permitted by the Credit Agreement. None of the Guarantors shall make or permit
to be made any transfer of the Article 9 Collateral and each Guarantor shall
remain at all times in possession of the Article 9 Collateral owned by it,
except as permitted by the Credit Agreement.
(h) None of the Guarantors will, without the Collateral Agent's prior
written consent, grant any extension of the time of payment of any Accounts
included in the Article 9
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Collateral, compromise, compound or settle the same for less than the full
amount thereof, release, wholly or partly, any person liable for the payment
thereof or allow any credit or discount whatsoever thereon, other than
extensions, credits, discounts, compromises or settlements granted or made in
the ordinary course of business and consistent with its past practices (it being
agreed that nothing in this clause (h) shall prohibit sales of receivables
permitted by Section 6.05(g) of the Credit Agreement).
(i) Each Guarantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Guarantor's true and lawful agent (and
attorney-in-fact) for the purpose, during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Article 9
Collateral under policies of insurance, endorsing the name of such Guarantor on
any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect thereto. In the event that any Guarantor at any time or times while an
Event of Default exists fails to obtain or maintain any of the policies of
insurance required hereby or to pay any premium in whole or part relating
thereto, the Collateral Agent may, without waiving or releasing any obligation
or liability of the Guarantors hereunder or any Event of Default, in its sole
discretion, obtain and maintain such policies of insurance and pay such premium
and take any other actions with respect thereto as the Collateral Agent
reasonably deems advisable. All sums disbursed by the Collateral Agent in
connection with this Section 4.03(i), including reasonable attorneys' fees,
court costs, expenses and other charges relating thereto, shall be payable, upon
demand, by the Guarantors to the Collateral Agent and shall be additional
Obligations secured hereby.
SECTION 4.04. OTHER ACTIONS. In order to further ensure the
attachment, perfection and priority of, and the ability of the Collateral Agent
to enforce, for the ratable benefit of the Secured Parties, the Collateral
Agent's security interest in the Article 9 Collateral, each Guarantor agrees, in
each case at such Guarantor's own expense, to take the following actions with,
respect to the following Article 9 Collateral:
(a) INSTRUMENTS AND TANGIBLE CHATTEL PAPER. If any Guarantor shall at
any time hold or acquire any Instruments or Tangible Chattel Paper
evidencing an amount in excess of $10,000,000, such Guarantor shall
forthwith endorse, assign and deliver the same to the Collateral Agent,
accompanied by such instruments of transfer or assignment duly executed in
blank as the Collateral Agent may from time to time reasonably request.
(b) CASH ACCOUNTS. No Guarantor shall grant Control of any Deposit
Account to any Person other than the Collateral Agent.
(c) INVESTMENT PROPERTY. Except to the extent otherwise provided in
Article III, if any Guarantor shall at any time hold or acquire any
Certificated Security, such Guarantor shall forthwith endorse, assign and
deliver the same to the Collateral Agent, accompanied by such instruments
of transfer or assignment duly executed in blank as the Collateral Agent
may from time to time reasonably specify. If any security now or hereafter
acquired by any Guarantor is uncertificated and is issued to such Guarantor
or its nominee directly by the issuer thereof, upon the Collateral Agent's
reasonable request while an Event of Default exists, such Guarantor shall
promptly notify
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the Collateral Agent of such uncertificated securities and pursuant to an
agreement in form and substance reasonably satisfactory to the Collateral
Agent, either (i) cause the issuer to agree to comply with instructions
from the Collateral Agent as to such security, without further consent of
any Guarantor or such nominee, or (ii) cause the issuer to register the
Collateral Agent as the registered owner of such security. If any security
or other Investment Property, whether certificated or uncertificated,
representing an Equity Interest in a third party and having a fair market
value in excess of $10,000,000 now or hereafter acquired by any Guarantor
is held by such Guarantor or its nominee through a securities intermediary
or commodity intermediary, such Guarantor shall promptly notify the
Collateral Agent thereof and, at the Collateral Agent's request and option,
pursuant to a Control Agreement in form and substance reasonably
satisfactory to the Collateral Agent, either (A) cause such securities
intermediary or commodity intermediary, as applicable, to agree, in the
case of a securities intermediary, to comply with entitlement orders or
other instructions from the Collateral Agent to such securities
intermediary as to such securities or other Investment Property or, in the
case of a commodity intermediary, to apply any value distributed on account
of any commodity contract as directed by the Collateral Agent to such
commodity intermediary, in each case without further consent of any
Guarantor or such nominee, or (B) in the case of Financial Assets or other
Investment Property held through a securities intermediary, arrange for the
Collateral Agent to become the entitlement holder with respect to such
Investment Property, for the ratable benefit of the Secured Parties, with
such Guarantor being permitted, only with the consent of the Collateral
Agent, to exercise rights to withdraw or otherwise deal with such
Investment Property. The Collateral Agent agrees with each of the
Guarantors that the Collateral Agent shall not give any such entitlement
orders or instructions or directions to any such issuer, securities
intermediary or commodity intermediary, and shall not withhold its consent
to the exercise of any withdrawal or dealing rights by any Guarantor,
unless an Event of Default has occurred and is continuing or, after giving
effect to any such withdrawal or dealing rights, would occur. The
provisions of this paragraph (c) shall not apply to any Financial Assets
credited to a securities account for which the Collateral Agent is the
securities intermediary.
(d) COMMERCIAL TORT CLAIMS. If any Guarantor shall at any time hold
or acquire a Commercial Tort Claim in an amount reasonably estimated to
exceed $10,000,000, such Guarantor shall promptly notify the Collateral
Agent thereof in a writing signed by such Guarantor, including a summary
description of such claim, and grant to the Collateral Agent in writing a
security interest therein and in the proceeds thereof, all upon the terms
of this Agreement, with such writing to be in form and substance reasonably
satisfactory to the Collateral Agent.
SECTION 4.05. COVENANTS REGARDING PATENT, TRADEMARK AND COPYRIGHT
COLLATERAL. (a) Each Guarantor agrees that it will not knowingly do any act or
omit to do any act (and will exercise commercially reasonable efforts to prevent
its licensees from knowingly doing any act or knowingly omitting to do any act)
whereby any Patent that is material to the normal conduct of such Guarantor's
business may become prematurely invalidated or dedicated to the public, and
agrees that it shall take commercially reasonable steps with respect to any
material products covered by any such Patent as necessary and sufficient to
establish and preserve its rights under applicable patent laws.
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(b) Each Guarantor will, and will use its commercially reasonable
efforts to cause its licensees or its sublicensees to, for each owned Trademark
necessary to the normal conduct of such Guarantor's business, (i) maintain such
Trademark in full force free from any adjudication of abandonment or invalidity
for non-use, (ii) maintain the quality of products and services offered under
such Trademark on all material respects, (iii) display such Trademark with
notice of federal or foreign registration or claim of trademark or service mark
as required under applicable law and (iv) not knowingly use or knowingly permit
its licensees' use of such Trademark in violation of any third-party rights.
(c) Each Guarantor will, and will use its commercially reasonable
efforts to cause its licensees or its sublicensees to, for each work covered by
a material Copyright necessary to the normal conduct of such Guarantor's
business that it publishes, displays and distributes, use copyright notice as
required under applicable copyright laws.
(d) Each Guarantor shall notify the Collateral Agent promptly if it
knows that any Patent, Trademark or Copyright material to the normal conduct of
such Guarantor's business may imminently become abandoned, lost or dedicated to
the public, or of any materially adverse determination or development,
(excluding office actions and similar determinations or developments in the
United States Patent and Trademark Office, United States Copyright Office, any
court or any similar office of any country), regarding such Guarantor's
ownership of any such material Patent, Trademark or Copyright or its right to
register or to maintain the same.
(e) Each Guarantor, either itself or through any agent, employee,
licensee or designee, shall (i) inform the Collateral Agent on a semi-annual
basis of each application by itself, or through any agent, employee, licensee or
designee, for any Patent with the United States Patent and Trademark Office and
each registration of any Trademark or Copyright with the United States Patent
and Trademark Office, the United States Copyright Office or any comparable
office or agency in any other country filed during the preceding six-month
period, and (ii) upon the reasonable request of the Collateral Agent, execute
and deliver any and all agreements, instruments, documents and papers as the
Collateral Agent may reasonably request to evidence the Collateral Agent's
security interest in such Patent, Trademark or Copyright.
(f) Each Guarantor shall exercise its reasonable business judgment in
any proceeding before the United States Patent and Trademark Office, the United
States Copyright Office or any comparable office or agency in any other country
with respect to maintaining and pursuing each material application relating to
any Patent, Trademark and/or Copyright (and obtaining the relevant grant or
registration) material to the normal conduct of such Guarantor's business and to
maintain (i) each issued Patent and (ii) the registrations of each Trademark and
each Copyright, in each case that is material to the normal conduct of such
Guarantor's business, including, when applicable and necessary in such
Guarantor's reasonable business judgment, timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if any Guarantor believes necessary in its reasonable
business judgment, to initiate opposition, interference and cancellation
proceedings against third parties.
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ARTICLE V.
REMEDIES
SECTION 5.01. REMEDIES UPON DEFAULT. Upon the occurrence and during
the continuance of a Noticed Event of Default, each Guarantor agrees to deliver
each item of Collateral to the Collateral Agent on demand, and it is agreed that
the Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all such
Article 9 Collateral by the applicable Guarantors to the Collateral Agent or to
license or sublicense, whether general, special or otherwise, and whether on an
exclusive or a nonexclusive basis, any such Article 9 Collateral throughout the
world on such terms and conditions and in such manner as the Collateral Agent
shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers thereunder cannot be obtained) and (b)
with or without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the applicable Uniform Commercial Code or other applicable law.
Without limiting the generality of the foregoing, each Guarantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized in connection with any sale of a security (if it deems it advisable
to do so) pursuant to the foregoing to restrict the prospective bidders or
purchasers to persons who represent and agree that they are purchasing such
security for their own account, for investment, and not with a view to the
distribution or sale thereof. Upon consummation of any such sale of Collateral
pursuant to this Section 5.01 the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely, free from any claim or right on the part of any Guarantor, and
each Guarantor hereby waives and releases (to the extent permitted by law) all
rights of redemption, stay, valuation and appraisal that such Guarantor now has
or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted.
The Collateral Agent shall give the applicable Guarantors 10 Business
Days' written notice (which each Guarantor agrees is reasonable notice within
the meaning of Section 9-612 of the New York UCC or its equivalent in other
jurisdictions) of the Collateral Agent's intention to make any sale of
Collateral. Such notice, in the case of a public sale, shall state the time and
place for such sale and, in the case of a sale at a broker's board or on a
securities exchange, shall state the board or exchange at which such sale is to
be made and the day on which the Collateral, or portion thereof, will first be
offered for sale at such board or exchange. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Collateral Agent may fix and state in the notice (if any) of such sale.
At any such sale, the Collateral, or the portion thereof, to be sold may be sold
in one lot as an entirety or in separate parcels, as the Collateral Agent may
(in its sole and absolute
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discretion) determine. The Collateral Agent shall not be obligated to make any
sale of any Collateral if it shall determine not to do so, regardless of the
fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In the case of
any sale of all or any part of the Collateral made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in the event that any such
purchaser or purchasers shall fail to take up and pay for the Collateral so sold
and, in the case of any such failure, such Collateral may be sold again upon
notice given in accordance with provisions above. At any public (or, to the
extent permitted by law, private) sale made pursuant to this Section 5.01, any
Secured Party may bid for or purchase for cash, free (to the extent permitted by
law) from any right of redemption, stay, valuation or appraisal on the part of
any Guarantor (all such rights being also hereby waived and released to the
extent permitted by law), the Collateral or any part thereof offered for sale
and such Secured Party may, upon compliance with the terms of sale, hold, retain
and dispose of such property in accordance with Section 5.02 hereof without
further accountability to any Guarantor therefor. For purposes hereof, a written
agreement to purchase the Collateral or any portion thereof shall be treated as
a sale thereof; the Collateral Agent shall be free to carry out such sale
pursuant to such agreement and no Guarantor shall be entitled to the return of
the Collateral or any portion thereof subject thereto, notwithstanding the fact
that after the Collateral Agent shall have entered into such an agreement all
Events of Default shall have been remedied and the Obligations paid in full. As
an alternative to exercising the power of sale herein conferred upon it, the
Collateral Agent may proceed by a suit or suits at law or in equity to foreclose
this Agreement and to sell the Collateral or any portion thereof pursuant to a
judgment or decree of a court or courts having competent jurisdiction or
pursuant to a proceeding by a court-appointed receiver. Any sale pursuant to the
provisions of this Section 5.01 shall be deemed to conform to the commercially
reasonable standards as provided in Section 9-610(b) of the New York UCC or its
equivalent in other jurisdictions.
SECTION 5.02. APPLICATION OF PROCEEDS. The Collateral Agent shall
promptly apply the proceeds, moneys or balances of any collection or sale of
Collateral, as well as any 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
collection or sale or otherwise in connection with this Agreement, any
other Loan Document or any of the 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 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 ratable payment of the Obligations, and
THIRD, once all Obligations have been paid in full, to the Guarantors,
their successors or assigns, or as a court of competent jurisdiction may
otherwise direct.
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The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or of the officer
making the sale shall be a sufficient discharge to the purchaser or purchasers
of the Collateral so sold and such purchaser or purchasers shall not be
obligated to see to the application of any part of the purchase money paid over
to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 5.03. GRANT OF LICENSE TO USE INTELLECTUAL PROPERTY. Solely
for the purpose of enabling the Collateral Agent to exercise rights and remedies
under this Agreement at such time as the Collateral Agent shall be lawfully
entitled to exercise such rights and remedies, each Guarantor hereby grants to
(in the Collateral Agent's sole discretion) a designee of the Collateral Agent
or the Collateral Agent, for the ratable benefit of the Secured Parties, an
irrevocable, nonexclusive license (exercisable without payment of royalty or
other compensation to any Guarantor) to use, license or sublicense any of the
Article 9 Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Guarantor, wherever the same may be located, and including,
without limitation, in such license reasonable access to all media in which any
of the licensed items may be recorded or stored and to all computer software and
programs used for the compilation or printout thereof. The use of such license
by the Collateral Agent may be exercised, at the option of the Collateral Agent,
while an Event of Default exists; PROVIDED that any license, sublicense or other
transaction entered into by the Collateral Agent in accordance herewith shall be
binding upon the Guarantors notwithstanding any subsequent cure of an Event of
Default.
SECTION 5.04. SECURITIES ACT, ETC. In view of the position of the
Guarantors in relation to the Pledged Collateral, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar federal statute hereafter enacted
analogous in purpose or effect (such Act and any such similar statute as from
time to time in effect being called the "FEDERAL SECURITIES LAWS") with respect
to any disposition of the Pledged Collateral permitted hereunder. Each Guarantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Collateral under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Guarantor acknowledges and agrees that in light of such
restrictions and limitations, the Collateral Agent, in its sole and absolute
discretion, (a) may proceed to make such a sale whether or not a registration
statement for the purpose of registering such Pledged Collateral or part thereof
shall have been filed under the Federal Securities Laws or, to the extent
applicable, Blue Sky or other state securities laws and (b) may approach and
negotiate with a single potential purchaser to effect such sale. Each Guarantor
acknowledges and agrees that any such sale might result in prices and other
terms less favorable to the seller than if such sale were a public sale without
such restrictions. In the event of any such sale, the Collateral Agent shall
incur no responsibility or liability for selling all or any part of the Pledged
Collateral at a price that the Collateral Agent, in its sole and absolute
discretion,
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may in good faith deem reasonable under the circumstances, notwithstanding the
possibility that a substantially higher price might have been realized if the
sale were deferred until after registration as aforesaid or if more than a
single purchaser were approached. The provisions of this Section 5.04 will apply
notwithstanding the existence of a public or private market upon which the
quotations or sales prices may exceed substantially the price at which the
Collateral Agent sells.
SECTION 5.05. REGISTRATION, ETC. Each Guarantor agrees that, upon the
occurrence and during the continuance of an Event of Default, if for any reason
the Collateral Agent desires to sell any of the Pledged Collateral at a public
sale, it will, at any time and from time to time, upon the written request of
the Collateral Agent, use its commercially reasonable efforts to take or to
cause the issuer of such Pledged Collateral to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Collateral Agent to permit the public sale
of such Pledged Collateral. Each Guarantor further agrees to indemnify, defend
and hold harmless the Administrative Agent, each other Secured Party, any
underwriter and their respective officers, directors, affiliates and controlling
persons from and against all loss, liability, expenses, costs of counsel
(including reasonable fees and expenses of legal counsel to the Collateral Agent
of, and claims (including the costs of investigation) that they may incur
insofar as such loss, liability, expense or claim arises out of or is based upon
any alleged untrue statement of a material fact contained in any prospectus (or
any amendment or supplement thereto) or in any notification or offering
circular, or arises out of or is based upon any alleged omission to state a
material fact required to be stated therein or necessary to make the statements
in any thereof not misleading, except insofar as the same may have been caused
by any untrue statement or omission based upon information furnished in writing
to such Guarantor or the issuer of such Pledged Collateral by the Collateral
Agent or any other Secured Party expressly for use therein. Each Guarantor
further agrees, upon such written request referred to above, to use its
commercially reasonable efforts to qualify, file or register, or cause the
issuer of such Pledged Collateral to qualify, file or register, any of the
Pledged Collateral under the Blue Sky or other securities laws of such states as
may be reasonably requested by the Collateral Agent and keep effective, or cause
to be kept effective, all such qualifications, filings or registrations. Each
Guarantor will bear all costs and expenses of carrying out its obligations under
this Section 5.05. Each Guarantor acknowledges that there is no adequate remedy
at law for failure by it to comply with the provisions of this Section 5.05 only
and that such failure would not be adequately compensable in damages and,
therefore, agrees that its agreements contained in this Section 5.05 may be
specifically enforced.
ARTICLE VI.
INDEMNITY, SUBROGATION AND SUBORDINATION
SECTION 6.01. INDEMNITY AND SUBROGATION. In addition to all such
rights of indemnity and subrogation as the Guarantors may have under applicable
law (but subject to Section 6.03), each Guarantor that is a Borrower (a
"SPECIFIED BORROWER") agrees that (a) in the event a payment shall be made by
any Guarantor under this Agreement in respect of any Obligation of such
Specified Borrower that has been incurred by it as a Borrower, such Specified
Borrower shall indemnify such Guarantor for the full amount of such payment and
such Guarantor shall be subrogated to the rights of the person to whom such
payment shall have been
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made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part an Obligation of a Specified Borrower
that has been incurred by it as a Borrower, such Specified Borrower shall
indemnify such Guarantor in an amount equal to the greater of the book value or
the fair market value of the assets so sold.
SECTION 6.02. CONTRIBUTION AND SUBROGATION. Each Guarantor (a
"CONTRIBUTING GUARANTOR") agrees (subject to Section 6.03) that, in the event a
payment shall be made by any other Guarantor hereunder in respect of any
Obligation or assets of any other Guarantor shall be sold pursuant to any
Security Document to satisfy any Obligation and such other Guarantor (the
"CLAIMING GUARANTOR") shall not have been fully indemnified by the Borrower of
such Obligation as provided in Section 6.01 or otherwise, the Contributing
Guarantor shall indemnify the Claiming Guarantor in an amount equal to the
amount of such payment or the greater of the book value or the fair market value
of such assets, as applicable, in each case multiplied by a fraction of which
the numerator shall be the net worth of such Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 7.16, the date of the supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the
rights of such Claiming Guarantor under Section 6.01 to the extent of such
payment.
SECTION 6.03. SUBORDINATION. (a) Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and
6.02 and all other rights of indemnity, contribution or subrogation of the
Guarantor under applicable law or otherwise shall be fully subordinated to the
indefeasible payment in full in cash of the Obligations. No failure on the part
of any Borrower or any Guarantor to make the payments required by Sections 6.01
and 6.02 (or any other payments required under applicable law or otherwise)
shall in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
(b) Each Guarantor hereby agrees that all Indebtedness and other
monetary obligations owed by it to any other Guarantor or any Subsidiary shall
be subordinated to the indefeasible payment in full in cash of the Obligations
in the manner set forth in Exhibit H to the Credit Agreement.
ARTICLE VII.
MISCELLANEOUS
SECTION 7.01. NOTICES. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and notices
hereunder to any Subsidiary Party shall be given to it in care of the Term
Borrower, with such notice to be given as provided in Section 9.01 of the Credit
Agreement.
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SECTION 7.02. SECURITY INTEREST ABSOLUTE. All rights of the Collateral
Agent hereunder, the Security Interest, the security interest in the Pledged
Collateral and all obligations of each Guarantor 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 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 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 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 Obligations or (d) any other circumstance that
might otherwise constitute a defense available to, or a discharge of, any
Guarantor in respect of the Obligations or this Agreement.
SECTION 7.03. [RESERVED].
SECTION 7.04. BINDING EFFECT; SEVERAL AGREEMENT. This Agreement shall
become effective as to any party to this Agreement when a counterpart hereof
executed on behalf of such party shall have been delivered to the Administrative
Agent and a counterpart hereof shall have been executed on behalf of the
Collateral Agent, and thereafter shall be binding upon such party and the
Collateral Agent and their respective permitted successors and assigns, and
shall inure to the benefit of such party, the Collateral Agent and the other
Secured Parties and their respective permitted successors and assigns, except
that no party shall have the right to assign or transfer its rights or
obligations hereunder or any interest herein or in the Collateral (and any such
assignment or transfer shall be void) except as expressly contemplated by this
Agreement or the Credit Agreement. This Agreement shall be construed as a
separate agreement with respect to each party and may be amended, modified,
supplemented, waived or released with respect to any party without the approval
of any other party and without affecting the obligations of any other party
hereunder.
SECTION 7.05. SUCCESSORS AND ASSIGNS. Whenever in this Agreement any
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Guarantor or the Collateral Agent that are
contained in this Agreement shall bind and inure to the benefit of their
respective permitted successors and assigns.
SECTION 7.06. COLLATERAL AGENT'S FEES AND EXPENSES; INDEMNIFICATION.
(a) The parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its expenses incurred hereunder as provided in Section 9.05 of
the Credit Agreement.
(b) Without limitation of its indemnification obligations under the
other Loan Documents, each Guarantor jointly and severally agrees to indemnify
the Collateral Agent 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, 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 Agreement or any other Loan
Document or any agreement or
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instrument contemplated hereby or thereby, the performance by the parties hereto
and thereto of their respective obligations thereunder or the consummation of
the Transactions 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 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 purposes of this Section 7.06(b) only any Secured Party and its Related
Parties as a single Indemnitee).
(c) Any such amounts payable as provided hereunder shall be
additional Obligations hereunder. The provisions of this Section 7.06 shall
remain operative and in full force and effect regardless of the termination of
this Agreement or any other Loan Document, the consummation of the transactions
contemplated hereby, the repayment of any of the 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 7.06 shall be
payable on written demand therefor (accompanied by a reasonably detailed
computation of the amounts to be paid).
SECTION 7.07. COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Each
Guarantor hereby appoints the Collateral Agent the attorney-in-fact of such
Guarantor for the purpose, during the continuance of an Event of Default, of
carrying out the provisions of this Agreement and taking any action and
executing any instrument that the Collateral Agent may deem necessary or
advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of a Noticed Event of Default, with full power of substitution
either in the Collateral Agent's name or in the name of such Guarantor, (a) to
receive, endorse, assign or deliver any and all notes, acceptances, checks,
drafts, money orders or other evidences of payment relating to the Collateral or
any part thereof; (b) to demand, collect, receive payment of, give receipt for
and give discharges and releases of all or any of the Collateral; (c) to ask
for, demand, sue for, collect, receive and give acquittance for any and all
moneys due or to become due under and by virtue of any Collateral; (d) to sign
the name of any Guarantor on any invoice or bill of lading relating to any of
the Collateral; (e) to send verifications of Accounts to any Account Debtor; (f)
to commence and prosecute any and all suits, actions or proceedings at law or in
equity in any court of competent jurisdiction to collect or otherwise realize on
all or any of the Collateral or to enforce any rights in respect of any
Collateral; (g) to settle, compromise, compound, adjust or defend any actions,
suits or proceedings relating to all or any of the Collateral; (h) to notify, or
to require any Guarantor to notify, Account Debtors to make payment directly to
the Collateral Agent; and (i) to use, sell, assign, transfer, pledge, make any
agreement with respect to or otherwise deal with all or any of the Collateral,
and to do all other acts and things necessary to carry out the purposes of this
Agreement, as fully and completely as though the Collateral Agent were the
absolute owner of the Collateral for all purposes; PROVIDED, that nothing herein
contained shall be construed as requiring or obligating the Collateral Agent to
make any commitment or to make any inquiry as to the nature or sufficiency of
any payment received by the Collateral Agent, or to present or file any claim or
notice, or to take any action with respect to the Collateral or any part thereof
or the moneys due or to become due in respect thereof or any property covered
thereby. The Collateral
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<Page>
Agent and the other Secured Parties shall be accountable only for amounts
actually received as a result of the exercise of the powers granted to them
herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Guarantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
SECTION 7.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. WAIVERS; AMENDMENT. (a) No failure or delay by the
Administrative Agent, the Collateral Agent, any Issuing Bank or any Lender in
exercising any right, power or remedy hereunder or under any other Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy, or any abandonment or discontinuance of steps
to enforce such a right, power or remedy, preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The rights, powers
and remedies of the Administrative Agent, the Collateral Agent, any Issuing Bank
and the Lenders hereunder and under the other Loan Documents are cumulative and
are not exclusive of any rights, powers or remedies that they would otherwise
have. No waiver of any provision of this Agreement or consent to any departure
by any Loan Party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 7.09, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or the issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of whether the Administrative
Agent, the Collateral Agent, any Lender or any Issuing Bank may have had notice
or knowledge of such Default or Event of Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Collateral Agent and the Loan Party or Loan Parties with
respect to which such waiver, amendment or modification is to apply (or, at its
election and after the Restructuring Date, by the Term Borrower on behalf of all
such Loan Parties), subject to any consent required in accordance with Section
9.08 of the Credit Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
-29-
<Page>
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.10.
SECTION 7.11. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall endeavor
in good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7.12. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract, and shall become
effective as provided in Section 7.04. Delivery of an executed counterpart to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed original.
SECTION 7.13. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 7.14. JURISDICTION; CONSENT TO SERVICE OF PROCESS. (a) Each
party to this Agreement hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any New York State
court or federal court of the United States of America sitting in New York City,
and any appellate court from any thereof, in any action or proceeding arising
out of or relating to this Agreement or any other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Collateral Agent, any Issuing Bank or
any Lender may otherwise have to bring any action or proceeding relating to this
Agreement or any other Loan Document against any Guarantor, or its properties,
in the courts of any jurisdiction.
(b) Each party to this Agreement hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any other Loan Document in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each Guarantor not a party to the Credit Agreement hereby
appoints BCP Crystal US Holdings Corp. at 345 Park Avenue, New York, NY as its
agent for service of
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<Page>
process, such appointment to be on the same basis as set forth in Section
9.15(c) of the Credit Agreement.
SECTION 7.15. TERMINATION OR RELEASE. (a) This Agreement, the
guarantees made herein, the Security Interest and all other security interests
granted hereby shall terminate on the first date when all the Obligations have
been indefeasibly paid in full in cash and the Lenders have no further
commitment to lend under the Credit Agreement, the Revolving L/C Exposure and CL
Exposure each has been reduced to zero and each Issuing Bank has no further
obligations to issue Letters of Credit under the Credit Agreement.
(b) A Subsidiary Party shall automatically be released from its
obligations hereunder and the security interests in the Collateral of such
Subsidiary Party shall be automatically released upon the consummation of any
transaction permitted by the Credit Agreement as a result of which such
Subsidiary Party ceases to be a Subsidiary of CAC (or after the Restructuring
Date, of the Term Borrower); PROVIDED that the Required Lenders shall have
consented to such transaction (to the extent such consent is required by the
Credit Agreement) and the terms of such consent did not provide otherwise.
(c) Upon any sale or other transfer by any Guarantor of any
Collateral that is permitted under the Credit Agreement to any person that is
not a Guarantor, or upon the effectiveness of any written consent to the release
of the security interest granted hereby in any Collateral pursuant to Section
9.08 of the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) In connection with any termination or release pursuant to
paragraph (a), (b) or (c) of this Section 7.15, the Collateral Agent shall
execute and deliver to any Guarantor, at such Guarantor's expense, all documents
that such Guarantor shall reasonably request to evidence such termination or
release. Any execution and delivery of documents pursuant to this Section 7.15
shall be without recourse to or warranty by the Collateral Agent.
SECTION 7.16. ADDITIONAL PARTIES. On the Restructuring Date, the Term
Borrower shall become a party hereto as a Guarantor. On the date occurring after
the Closing Date on which a Person first becomes a Domestic Subsidiary, such
Person shall, to the extent required by Section 5.10 of the Credit Agreement,
become a party hereto as a Guarantor. Upon execution and delivery by the
Collateral Agent and any such Person of a Supplement, such Person shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of a Supplement shall not require
the consent of any other party to this Agreement. The rights and obligations of
each party to this Agreement shall remain in full force and effect
notwithstanding the addition of any new party to this Agreement.
SECTION 7.17. RIGHT OF SET-OFF. If an Event of Default shall have
occurred and be continuing, each Lender and each Issuing Bank is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender or such Issuing Bank to or for the credit or the
account of any party to this Agreement against any of and all the obligations of
such party now or hereafter
-31-
<Page>
existing under this Agreement owed to such Lender or such Issuing Bank,
irrespective of whether or not such Lender or such Issuing Bank shall have made
any demand under this Agreement and although such obligations may be unmatured.
The rights of each Lender under this Section 7.17 are in addition to other
rights and remedies (including other rights of set-off) that such Lender or such
Issuing Bank may have.
[Signature Page Follows]
-32-
<Page>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CELANESE AMERICAS CORPORATION
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President-Finance, Principal
Financial Officer & Treasurer
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President Law, Principal
Executive Officer & Secretary
CELANESE ACETATE LLC
By: /s/ Tina Beier
------------------------------------------
Title: Vice President &Controller
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
CELANESE CHEMICALS, INC.
By: /s/ Kris G. Radhakrishnan
------------------------------------------
Title: Vice President &Controller
BY: /s/ Bruce A. Bennett
------------------------------------------
Title: Vice President
CELANESE FIBERS OPERATIONS, LTD.
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Secretary
<Page>
CELANESE HOLDINGS, INC.
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
CELANESE INTERNATIONAL CORPORATION
By: William R. Massa
------------------------------------------
Title: Vice President
By: /s/ D. Andrew Spathakis
------------------------------------------
Title: Vice President &Assistant Secretary
CELANESE LTD. (Texas)
By: /s/ William R. Massa
------------------------------------------
Title: Vice President, Celanese
International Corporation, General Partner
of Celanese Ltd.
By: /s/ D. Andrew Spathakis
------------------------------------------
Title: Vice President & Assistant
Secretary, Celanese International
Corporation, General Partner of Celanese
Ltd.
CELANESE OVERSEAS CORPORATION
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
<Page>
CELANESE PIPE LINE COMPANY (Texas)
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Secretary
By: /s/ D. Andrew Spathakis
------------------------------------------
Title: Vice President &Assistant Secretary
CELTRAN, INC.
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Secretary
CELWOOD INSURANCE COMPANY (Vermont)
By: /s/ Anja Siekmann
------------------------------------------
Title: Vice President
By: /s/ Charles I. Hartsoe
------------------------------------------
Title: Vice President
CNA FUNDING LLC
By: /s/ Michael E. Grom
------------------------------------------
Title: President
By: /s/ Judy H. Yip
------------------------------------------
Title: Vice President
<Page>
CNA HOLDINGS, INC.
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President-Law, Principal
Executive Officer & Secretary
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President-Finance, Principal
Financial Officer & Treasurer
FKAT LLC
By: /s/ Julie K. Chapin
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
TICONA CELSTRAN INC. (MN)
By: /s/ John R. Wardzel
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
TICONA FORTRON INC.
By: /s/ John R. Wardzel
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
<Page>
TICONA LLC
By: /s/ John R. Wardzel
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
TICONA POLYMERS, INC.
By: /s/ John R. Wardzel
------------------------------------------
Title: Vice President &Principal Executive
Officer
By: /s/ Michael E. Grom
------------------------------------------
Title: Vice President &Treasurer
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Collateral Agent
By: /s/ Albert Fischetti
------------------------------------------
Title: Director
By: /s/ David Mayhew
------------------------------------------
Title: Director
<Page>
SCHEDULE I to
the Guarantee and
Collateral Agreement
Subsidiary Parties
<Page>
SCHEDULE II to
the Guarantee and
Collateral Agreement
EQUITY INTERESTS
<Table>
<Caption>
Number of Issuer Number and Class of Percentage of
Certificate Registered Owner Equity Interest of Equity Interests
----------- ---------------- --------------- -------------------
</Table>
DEBT SECURITIES
<Table>
<Caption>
Issuer Principal Amount Date of Note Maturity Date
------ ---------------- ------------ -------------
</Table>
<Page>
SCHEDULE III to
Guarantee and
Collateral Agreement
COPYRIGHTS OWNED BY [NAME OF GUARANTOR]
[Make a separate page of SCHEDULE III for each Guarantor and state if no
copyrights are owned. List in numerical order by Registration No.]
U.S. COPYRIGHT REGISTRATIONS
<Table>
<Caption>
TITLE REG. NO. AUTHOR
----- -------- ------
</Table>
PENDING U.S. COPYRIGHT APPLICATIONS FOR REGISTRATION
<Table>
<Caption>
TITLE AUTHOR CLASS DATE FILED
----- ------ ----- ----------
</Table>
<Page>
SCHEDULE III to
Guarantee and
Collateral Agreement
PATENTS OWNED BY [NAME OF GUARANTOR]
[Make a separate page of SCHEDULE III for each Guarantor and state if no patents
are owned. List in numerical order by Patent No./Patent Application No.]
U.S. PATENT REGISTRATIONS
<Table>
<Caption>
PATENT NUMBERS ISSUE DATE
-------------- ----------
</Table>
U.S. PATENT APPLICATIONS
<Table>
<Caption>
PATENT APPLICATION NO FILING DATE
--------------------- -----------
</Table>
<Page>
SCHEDULE III
to Guarantee and
Collateral Agreement
TRADEMARKS OWNED BY [NAME OF GUARANTOR]
[Make a separate page of SCHEDULE III for each Guarantor and state if no
trademarks are owned. List in numerical order by trademark
registration/application no.]
U.S. TRADEMARK REGISTRATIONS
<Table>
<Caption>
Mark Reg. Date Reg. No.
- ---- --------- --------
</Table>
U.S. TRADEMARK APPLICATIONS
<Table>
<Caption>
Mark Filing Date Application No.
- ---- ----------- ---------------
</Table>
<Page>
EXHIBIT I
to Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of (this "SUPPLEMENT"), to the
Guarantee and Collateral Agreement dated as of April 6, 2004 (the "COLLATERAL
AGREEMENT"), among CELANESE AMERICAS CORPORATION and the other Guarantors party
thereto and DEUTSCHE BANK AG, NEW YORK BRANCH as Collateral Agent (in such
capacity, the "COLLATERAL AGENT") for the Secured Parties (as defined herein).
A. Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Collateral Agreement.
B. Section 7.16 of the Collateral Agreement provides that additional
Persons will become Guarantors under the Collateral Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned Person
(the "NEW GUARANTOR") is executing this Supplement to become a Guarantor.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 7.16 of the Collateral
Agreement, the New Guarantor by its signature below becomes a Guarantor under
Collateral Agreement with the same force and effect as if originally named
therein as a Guarantor, and the New Guarantor hereby (a) agrees to all the terms
and provisions of the Collateral Agreement applicable to it as a Guarantor and
(b) represents and warrants that the representations and warranties made by it
as a Guarantor thereunder are true and correct, in all material respects, on and
as of the date hereof. In furtherance of the foregoing, the New Guarantor, as
security for the payment and performance in full of the Obligations, does hereby
create and grant to the Collateral Agent, its successors and assigns, for the
ratable benefit of the Secured Parties, their successors and assigns, a security
interest in and Lien on all the New Guarantor's right, title and interest in and
to the Collateral of the New Guarantor. Each reference to a "Guarantor" in the
Guarantee and Collateral Agreement shall be deemed to include the New Guarantor.
The Collateral Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
SECTION 3. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which when taken together
shall constitute but one contract. This Supplement shall become effective when
(a) the Collateral Agent shall have received a counterpart of this Supplement
that bears the signature of the New Guarantor and (b) the Collateral Agent has
executed a counterpart hereof.
<Page>
SECTION 4. The New Guarantor hereby represents and warrants that (a)
set forth on SCHEDULE I attached hereto is a true and correct schedule of the
location of any and all Article 9 Collateral of the New Guarantor, (b) set forth
on SCHEDULE II attached hereto is a true and correct schedule of all the Pledged
Securities of the New Guarantor and (c) set forth under its signature hereto, is
the true and correct legal name of the New Guarantor, its jurisdiction of
formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Collateral
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In the event any one or more of the provisions contained in
this Supplement should be held invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein and in the Collateral Agreement shall not in any way be affected or
impaired thereby. The parties shall endeavor in good-faith negotiations to
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in
writing and given as provided in Section 7.01 of the Collateral Agreement.
SECTION 9. The New Guarantor agrees to reimburse the Collateral Agent
for its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges of counsel for
the Collateral Agent.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Collateral Agreement as of the day and year
first above written.
-2-
<Page>
[NAME OF NEW GUARANTOR]
By:
--------------------------------
Name:
Title:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive Office:
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Collateral Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
-3-
<Page>
SCHEDULE I to
Supplement No.___
to the Guarantee and
Collateral Agreement
LOCATION OF ARTICLE 9 COLLATERAL
<Table>
<Caption>
DESCRIPTION LOCATION
----------- --------
</Table>
<Page>
SCHEDULE II to
Supplement No. __
to the Guarantee and
Collateral Agreement
PLEDGED SECURITIES OF THE NEW GUARANTOR
EQUITY INTERESTS
<Table>
<Caption>
Number of Issuer Number and Class of Percentage of
Certificate Registered Owner Equity Interest of Equity Interests
----------- ---------------- --------------- -------------------
</Table>
DEBT SECURITIES
<Table>
<Caption>
ISSUER PRINCIPAL AMOUNT DATE OF NOTE MATURITY DATE
------ ---------------- ------------ -------------
</Table>
OTHER PROPERTY