SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER
SECOND
AMENDMENT TO CREDIT AGREEMENT AND WAIVER
This
SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this “Amendment”),
dated as of November 12, 2009, is entered into by and among Crown Americas LLC,
a Pennsylvania limited liability company (the “U.S.
Borrower”), the other undersigned Credit Parties, the undersigned
financial institutions, including Deutsche Bank AG New York Branch, in their
capacities as lenders hereunder (collectively, the “Lenders,”
and each individually, a “Lender”),
and Deutsche Bank AG New York Branch, as Administrative Agent (“Administrative
Agent”) and as Collateral Agent (“Collateral
Agent”) for the Lenders. Terms used herein and not otherwise
defined herein shall have the same meanings as specified in the Credit Agreement
(as defined below).
RECITALS:
A.
The U.S.
Borrower, the other Credit Parties party thereto, the Lenders, the Agents named
therein and Administrative Agent have heretofore entered into that certain
Credit Agreement dated as of November 18, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).
B.
In
furtherance of its business interests, CR USA, Inc. (f/k/a Crown Xxxxxx (USA),
Inc.), a Credit Party and a Wholly-Owned Subsidiary of the U.S. Borrower (“CR
USA”), desires to sell certain real property owned by it and
located in Danbury, Connecticut (the “Property”)
for total consideration of at least $2.5 million, which consideration will be
paid to CR USA over a term of up to three years. The transactions
described in the preceding sentence are referred to herein as the “Transactions”.
C.
The
Borrowers wish, and the Lenders signatory hereto and Administrative Agent are
willing, subject to the terms and conditions set forth herein, to (i) amend the
Credit Agreement, (ii) consent to the Transactions and waive any Unmatured Event
of Default or Event of Default resulting therefrom and (iii) release all Liens
of Collateral Agent on the Property in connection with the Transactions, all as
specifically set forth herein.
D.
This
Amendment constitutes a Loan Document and these Recitals shall be construed as
part of this Amendment.
NOW,
THEREFORE, in consideration of the recitals herein contained and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION
1 Amendment
of Credit Agreement.
The
Credit Agreement is hereby amended as of the Second Amendment Effective Date (as
hereinafter defined) as follows:
(a) Section
1.1 of the Credit Agreement is amended by inserting the following defined
terms in appropriate alphabetical order:
“Defaulting
Lender Termination” has the meaning assigned to that term in Section
4.1(b).
“Defaulting
Lender Termination Date” has the meaning assigned to that term in Section
4.1(b).
(b) Section
2.1(c)(i) of the Credit Agreement is amended by inserting the following
sentence at the end of such Section as follows:
“Notwithstanding
the foregoing, in the event a Lender Default exists, U.S. Swing Line Lender
shall not be required to make any U.S. Swing Line Loans unless U.S. Swing Line
Lender has entered into arrangements reasonably satisfactory to it and Crown
Holdings to eliminate U.S. Swing Line Lender’s risk with respect to the
refunding or participation in such U.S. Swing Line Loans of the Defaulting
Lender or Lenders, including by cash collateralizing such Defaulting Lender or
Lenders’ applicable Dollar Revolver Pro Rata Share of the applicable U.S. Swing
Line Loans, which arrangements shall be deemed to be consented to by the
Lenders.”
(c) Section
2.1(c)(ii) of the Credit Agreement is amended by inserting the following
sentence at the end of such Section as follows:
“Notwithstanding
the foregoing, in the event a Lender Default exists, European Swing Line Lender
shall not be required to make any European Swing Line Loans unless European
Swing Line Lender has entered into arrangements reasonably satisfactory to it
and Crown Holdings to eliminate the European Swing Line Lender’s risk with
respect to the refunding or participation in such European Swing Line Loans of
the Defaulting Lender or Lenders, including by cash collateralizing such
Defaulting Lender or Lenders’ applicable Euro Revolver Pro Rata Share of the
applicable European Swing Line Loans, which arrangements shall be deemed to be
consented to by the Lenders.”
(d) Section
4.1 of the Credit Agreement is amended by lettering the existing text of
such Section as clause (a) thereof and inserting the following new clause (b) at
the end of such Section as follows:
“(b) Optional
Termination of Commitment of Defaulting Lender.
(i) At
any time a Lender is a Defaulting Lender, upon prior written notice (or
telephonic notice confirmed in writing) to Administrative Agent at its Notice
Address and to such Defaulting Lender, (A) U.S. Borrower may, without premium or
penalty, terminate in full the Dollar Revolving Commitment and/or Swing Line
Commitment of such Defaulting Lender, (B) European Borrower may, without premium
or penalty, terminate in full the Euro Revolving Commitment and/or Swing Line
Commitment of such Defaulting Lender, and (C) Canadian Borrower may, without
premium or penalty, terminate in full the Canadian Revolving Commitment of such
Defaulting Lender (any such termination, a “Defaulting
Lender Termination”), in each case, provided,
that, at the time of such Defaulting Lender Termination, (1) no Unmatured Event
of Default or Event of Default has occurred and is continuing (unless the
Required Lenders consent to such Defaulting Lender Termination), (2) either (x)
no Loans are outstanding under any Revolving Facility in which such Defaulting
Lender has a Commitment, (y) such Defaulting Lender’s Pro Rata Share of
outstanding Revolving Loans and Canadian Revolving Loans is zero or (z) the
aggregate outstanding principal amount of Revolving Loans and Canadian Revolving
Loans, if any, owing to such Defaulting Lender shall have been repaid in full in
accordance with clause (iv) below and (3) (a) in the case of the Dollar
Revolving Facility and Euro Revolving Facility, the sum of the aggregate
outstanding principal amount of all remaining Revolving Loans plus
the LC Obligations plus
the aggregate outstanding principal amount of all remaining Swing Line Loans
shall not exceed the aggregate Revolving Commitments of all remaining Revolving
Lenders or (b) in the case of the Canadian Revolving Facility, the sum of the
aggregate outstanding principal amount of all remaining Canadian Revolving Loans
shall not exceed the aggregate Canadian Revolving Commitments of all remaining
Canadian Revolving Lenders. Each such notice shall specify the
effective date of such Defaulting Lender Termination (the “Defaulting
Lender Termination Date”), which Defaulting Lender Termination Date shall
be acceptable to Administrative Agent in its reasonable discretion.
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(ii) On
each such Defaulting Lender Termination Date, (A) the Dollar Revolving
Commitment, Euro Revolving Commitment and Canadian Revolving Commitment of such
Defaulting Lender shall be reduced to zero, (B) such Defaulting Lender shall
cease to be a “Lender” hereunder (provided
that any Defaulting Lender shall continue to be entitled to the indemnification
provisions contained herein, but only with respect to matters arising prior to
the applicable Defaulting Lender Termination Date), (C) the respective Dollar
Revolving Commitments, Euro Revolving Commitments and Canadian Revolving
Commitments, as applicable, of all other Lenders shall remain unchanged and (D)
the Pro Rata Shares of outstanding LC Obligations and Swing Line Loans will be
reallocated by Administrative Agent among the Dollar Revolving Lenders or Euro
Revolving Lenders (other than the Defaulting Lender), as the case may be, in
accordance with their Pro Rata Shares of the applicable Facilities after giving
effect to such Defaulting Lender Termination;
(iii) Except
as otherwise provided in clause (iv) below, concurrently with any payment of
interest or fees to the Lenders with respect to any applicable Revolving
Facility occurring on or after such Defaulting Lender Termination Date with
respect to any period before such Defaulting Lender Termination Date, such
Defaulting Lender shall be paid its Pro Rata Share (based on its Pro Rata Share
before giving effect to such Defaulting Lender Termination) of such interest or
fees, as applicable;
(iv) If
on the Defaulting Lender Termination Date for a Defaulting Lender the
outstanding principal balance of Loans under any Revolving Facility in which
such Defaulting Lender has a Commitment is not zero, the applicable Borrower
may, notwithstanding any other provision of this Agreement to the contrary
(including without limitation Section
12.6(a)), repay the entire outstanding principal balance of such Loans
owing to such Defaulting Lender on such Defaulting Lender Termination Date,
together with all accrued and unpaid interest thereon; and
(v) The
exercise by any Borrower of its rights under this Section
4.1(b) or any other provision of this Agreement applicable to a
Defaulting Lender shall not be to the exclusion of, nor be a limitation on, any
other rights or remedies that may be available to such Borrower with respect to
such Defaulting Lender under applicable law.”
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SECTION
2 Consent
and Waiver. The undersigned Lenders hereby (i) consent to the
Transactions and (ii) waive any Unmatured Event of Default or Event of Default
arising solely as a result of the Transactions out of a breach of Section 8.5 of
the Credit Agreement. In connection with such consent and waiver, the
undersigned Lenders further consent to the release by Collateral Agent of the
Liens granted to Collateral Agent (for the benefit of the Secured Creditors) in
the Property pursuant to that certain Amended and Restated First Open-End
Mortgage Deed, Assignment of Leases and Rents, Security Agreement and Financing
Statement dated as of November 18, 2005 by and between CR USA and Collateral
Agent or otherwise. The foregoing consent and waiver is specifically
limited in time and scope to the events expressly described and defined herein
as the “Transactions” and shall not be deemed to extend or apply to any other
event or occurrence in existence as of the date hereof or arising
hereafter. In addition, the foregoing consent and waiver shall not be
deemed to constitute a custom or a practice on the part of Administrative Agent,
Collateral Agent or the Lenders and shall not establish or be deemed to have
established a course of dealing between Administrative Agent, Collateral Agent
and the Lenders, on the one hand, and the Borrowers and their Subsidiaries, on
the other hand, under the Credit Agreement or any of the other Loan
Documents. Except as expressly set forth herein, the terms,
provisions and conditions of the Credit Agreement and the other Loan Documents
shall remain in full force and effect and in all other respects are hereby
ratified and confirmed.
SECTION
3 Conditions
to Effectiveness of the Amendment. The provisions of this
Amendment shall become effective upon the date of the satisfaction of all of the
conditions set forth in this Section
3 (the “Second
Amendment Effective Date”), with any documents delivered to
Administrative Agent dated the Second Amendment Effective Date unless otherwise
noted:
3.1. Proper
Execution and Delivery of Amendment. Borrowers, the other
Credit Parties party hereto, Administrative Agent and the Required Lenders shall
have duly executed and delivered to Administrative Agent this
Amendment.
3.2. Representations
and Warranties; No Default. After giving effect to this
Amendment, the representations and warranties set forth in Article VI
of the Credit Agreement shall be true and correct, except to the extent such
representations and warranties are expressly made as of a specified date in
which event such representations and warranties shall be true and correct as of
such specified date, and no Event of Default or Unmatured Event of Default shall
have occurred or be continuing.
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3.3. Corporate
Proceedings. All corporate and/or limited liability company
and legal proceedings and all instruments and agreements to be executed by each
Credit Party in connection with the transactions contemplated by this Amendment
and the other Loan Documents shall be satisfactory in form and substance to
Administrative Agent.
SECTION
4 Agreement of the U.S.
Borrower. The U.S. Borrower shall deliver written notice to Xxxxxx
Brothers Commercial Paper, Inc ("LCPI"), in accordance with Section
4.1(b) of the Credit Agreement, as amended by this Amendment, terminating in
full the Dollar Revolving Commitment and Swing Line Commitment of LCPI.
Such notice shall (i) specify that the termination effected thereby shall be
effective, as of the Second Amendment Effective Date, immediately upon
effectiveness of this Amendment, and (ii) have been acknowledged and accepted by
the Administrative Agent.
SECTION
5 References
to and Effect on the Credit Agreement. On and after the date
hereof each reference in the Credit Agreement to “this Agreement,”
“hereunder,” “hereof,” “herein,” or words of like import, and each reference to
the Credit Agreement, as the case may be, in the Loan Documents and all other
documents (the “Ancillary
Documents”) delivered in connection with the Credit Agreement shall mean
and be a reference to the Credit Agreement as amended
hereby.
Except as
specifically amended above, the Credit Agreement, and the other Loan Documents
and all other Ancillary Documents shall remain in full force and effect and are
hereby ratified and confirmed.
The
execution, delivery and effectiveness of this Amendment shall not, except as
expressly provided herein, operate as a waiver of any right, power or remedy of
the Lenders or Administrative Agent under the Credit Agreement, the Loan
Documents or the Ancillary Documents.
SECTION
6 Costs
and Expenses. The U.S. Borrower agrees to pay promptly upon
the request of the Administrative Agent all reasonable out-of-pocket costs and
expenses of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment and all other documents
and instruments referred to herein and therein or in connection herewith or
therewith, including, without limitation, the reasonable fees and out-of-pocket
expenses of Winston & Xxxxxx LLP, special counsel to Administrative
Agent.
SECTION
7 Miscellaneous.
7.1. Execution
in Counterparts. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed to be
an original and all of which counterparts, taken together, shall constitute but
one and the same document with the same force and effect as if the signatures of
all of the parties were on a single counterpart, and it shall not be necessary
in making proof of this Amendment to produce more than one (1) such
counterpart. Delivery of an executed signature page to this Amendment
by telecopy shall be deemed to constitute delivery of an originally executed
signature page hereto.
7.2. Governing
Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF SAID STATE.
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7.3. Headings. Headings
used in this Amendment are for convenience of reference only and shall not
affect the construction of this Amendment.
7.4. Integration. This
Amendment, the other agreements and documents executed and delivered pursuant to
this Amendment and the Credit Agreement constitute the entire agreement among
the parties hereto with respect to the subject matter hereof.
7.5. Binding
Effect. This
Amendment shall be binding upon and inure to the benefit of and be enforceable
by the Borrowers, the other Credit Parties party hereto, the Agents and the
Lenders and their respective successors and assigns. Except as
expressly set forth to the contrary herein, this Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
Borrowers, the other Credit Parties party hereto, the Agents and the Lenders and
their respective successors and permitted assigns.
[signature
page follows]
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