SUPPLEMENTAL INDENTURE Dated as of November 18, 2005 to Indenture Dated as of February 26, 2003 Among CROWN EUROPEAN HOLDINGS SA, as Issuer, the GUARANTORS named therein and WELLS FARGO BANK, NATIONAL ASSOCIATION (as successor by consolidation to...
Exhibit 4.r
Dated as of November 18, 2005
to Indenture
Dated as of February 26, 2003
Among
CROWN EUROPEAN HOLDINGS SA, as Issuer,
the GUARANTORS named therein
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
(as successor by consolidation to Xxxxx Fargo Bank Minnesota, National Association),
as Trustee
This SUPPLEMENTAL INDENTURE dated as of November 18, 2005 (“Supplemental Indenture”), is among Crown European Holdings SA, a French société anonyme (the “Company”), the guarantors identified on the signature pages hereto (the “Guarantors”) and Xxxxx Fargo Bank Minnesota, National Association, as trustee under the indenture referred to herein (the “Trustee”).
RECITALS
WHEREAS, the Company, the Guarantors and the Trustee have heretofore duly executed and delivered an indenture dated as of February 26, 2003 (the “Indenture”), pursuant to which the Company issued $725,000,000 aggregate principal amount of 10 7/8% Third Priority Senior Secured Notes due 2013 (the “Notes”);
WHEREAS, Section 8.02 of the Indenture provides that the Company, the Guarantors and the Trustee may, with certain exceptions, amend the Indenture, the Notes, the Note Guarantees (as defined in the Indenture) or any provision of any Security Document (as defined in the Indenture) or the Proceeds Sharing Agreement (as defined in the Indenture) with the consent of the Holders (as defined in the Indenture) of at least a majority in principal amount of the then outstanding Notes;
WHEREAS, Section 8.02(c) of the Indenture provides that, in addition to the release of the Collateral (as defined in the Indenture) expressly permitted by the Indenture and the Security Documents, Collateral may be released with the consent of the Holders of at least 66 2/3% in aggregate principal amount of the Notes then outstanding (the “Required Consents”);
WHEREAS, Crown Holdings, Inc., a Guarantor and the parent company of the Company (“Crown”), has distributed an Offer to Purchase and Consent Solicitation Statement, dated October 18, 2005 (the “Statement”), and accompanying letter of transmittal and consent (the “Letter of Transmittal”) to the Holders of the Notes in connection with (i) certain proposed amendments to the Indenture as described in the Statement (the “Proposed Amendments”) and (ii) the termination or amendment of the related Security Documents and amendments to the Proceeds Sharing Agreement as described in the Statement (the “Collateral Document Terminations”);
WHEREAS, the Holders of at least 66 2/3% of the outstanding principal amount of the Notes have approved the Proposed Amendments and the Collateral Document Terminations;
WHEREAS, the Board of Directors of the Company and the applicable Board of Directors of the respective Guarantors have authorized the execution of this Supplemental Indenture and the delivery hereof to the Trustee for the purpose of modifying the Indenture as set forth herein;
WHEREAS, in all other respects all actions have been taken necessary to make this Supplemental Indenture the valid, binding and legal obligation of the Company and the Guarantors in accordance with its terms;
NOW, THEREFORE, in consideration of the premises, and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Guarantors hereby covenant and agree with the Trustee as follows:
SECTION 1. Capitalized Terms. All capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture.
SECTION 2. Amendments to the Indenture and the Notes. (a) The following Sections and Articles of the Indenture, and any corresponding provisions in the Notes, are hereby deleted in their entirety and replaced with “Intentionally Omitted.”:
| Section 4.03 |
Legal Existence | |
| Section 4.04 |
Maintenance of Properties; Insurance Compliance with Law | |
| Section 4.05 |
Waiver of Stay; Extension of Usury Laws | |
| Section 4.06 |
Compliance Certificate | |
| Section 4.07 |
Taxes | |
| Section 4.08 |
Repurchase at the Option of Holders Upon the Change of Control | |
| Section 4.09 |
Limitation on Incurrence of Indebtedness and Issuance of Preferred Stock | |
| Section 4.10 |
Limitation on Restricted Payments | |
| Section 4.11 |
Limitation on Liens | |
| Section 4.12 |
Limitation on Asset Sales | |
| Section 4.13 |
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries | |
| Section 4.14 |
Limitation on Transactions with Affiliates | |
| Section 4.15 |
Limitation on Sale and Leaseback Transactions | |
| Section 4.17 |
Reports to Holders | |
| Section 4.18 |
Limitation on Creation of Subsidiaries | |
| Section 4.19 |
Suspension of Certain Covenants in Event of Investment Grade Rating | |
| Section 5.01 |
Consolidation, Merger or Sale of Assets | |
| Section 5.02 |
Successor Person Substituted | |
| Article 11 |
Security Documents; Proceeds Sharing Agreement (except for Section 11.12). |
(b) Clauses (3) through (10) of Section 6.01 of the Indenture relating to Events of Defaults (as defined in the Indenture) are hereby deleted and replaced with “Intentionally Omitted.”
(c) The last sentence of Section 9.01, clause (2) of the second sentence of Section 9.02, all of Section 9.03 and all but clause (1) of Section 9.04 of the Indenture are hereby deleted.
(d) Any definitions used exclusively in the provisions of the Indenture or Notes that are deleted pursuant to this Section 2, and any definitions used exclusively within such definitions, are hereby deleted in their entirety from the Indenture and the Notes, and all references in the Indenture and the Notes to paragraphs, clauses, Sections, Articles or other terms or provisions of the Indenture referred to above in this section or that have been otherwise deleted pursuant to this Supplemental Indenture are hereby deleted in their entirety.
SECTION 3. The Indenture. This Supplemental Indenture is expressly made supplemental to and shall form a part of the Indenture and is made subject to all the conditions, covenants and warranties contained in the Indenture. Nothing in this Supplemental Indenture is intended to or shall provide any rights to any parties other than those expressly contemplated by this Supplemental Indenture. Each reference in the Indenture to “this Indenture”, “hereunder”, “hereof”, and words of like import referring to the Indenture and each reference in any other transaction document relating to the Indenture shall mean the Indenture as amended hereby.
SECTION 4. Legend. There shall be stamped, overprinted, typed or otherwise noted on Notes authenticated and delivered after the date hereof the following legend:
“THE INDENTURE GOVERNING THIS NOTE HAS BEEN AMENDED BY A SUPPLEMENTAL INDENTURE DATED AS OF NOVEMBER 18, 2005. REFERENCE IS MADE TO SUCH SUPPLEMENTAL INDENTURE FOR A STATEMENT OF THE AMENDED RIGHTS AND OBLIGATIONS OF THE COMPANY AND HOLDERS OF THE NOTES.”
SECTION 5. Trustee. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture or the Indenture as hereby supplemented, or the due execution hereof by the Company and the Guarantors, or the recitals and statements contained herein, all of which recitals and statements are made solely by the Company and the Guarantors, as the case may be.
SECTION 6. Release of Collateral. Pursuant to Section 8.02(c) of the Indenture and the deletion of Article 11 of the Indenture and pursuant to Section 9 of the Second Amended and Restated U.S. Intercreditor and Collateral Agency Agreement, dated November 18, 2005 (the “Amended U.S. Intercreditor Agreement”) and Section 9 of the Second Amended and Restated Euro Intercreditor and Collateral Agency Agreement, dated November 18, 2005 (the “Amended Euro Intercreditor Agreement” and together with the Amended U.S. Intercreditor Agreement, the “Amended Intercreditor Agreements”), all of the Liens upon Collateral created by the Security Documents are released and the Notes are not entitled to the benefits of the Amended Intercreditor Agreements. Pursuant to Section 8.02(a) of the Indenture and the deletion of Section 11.12 of the Indenture and pursuant to Sections 1 and 6(b)(ii) of the Second Amended and Restated Global Participation and Proceeds Sharing Agreement, dated November 18, 2005 (the “Amended Proceeds Sharing Agreement”), the Notes are to be treated as Additional Unsecured Indebtedness (as defined in the Amended Proceeds Sharing Agreement) and the Note Holders are not entitled to share in the proceeds from Collateral under the Amended Proceeds Sharing Agreement. Pursuant to Section 7.14(b) of the Second Amended and Restated U.S. Security Agreement, dated November 18, 2005, Section 13(b) of the Bank Pledge Agreement, dated November 18, 2005, Section 13(b) of the Euro Bank Pledge Agreement, dated November 18, 2005, Section 13(b) of the Second Amended and Restated CEH Pledge Agreement, dated November 18, 2005, and Section 13(b) of the Second Amended and Restated Shared Pledge Agreement, dated November 18, 2005, the applicable collateral agent is required to execute and deliver all UCC termination statements and similar documents that the Company reasonably requests to evidence the termination or release of the Collateral. The Trustee is hereby authorized to execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to effectuate the release of the Notes’ Liens on the Collateral.
SECTION 7. Governing Law. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York, the United States of America, without regard to the principles of conflicts of laws.
SECTION 8. Counterparts. This Supplemental Indenture may be simultaneously executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.
SECTION 9 Severability. If any court of competent jurisdiction shall determine that any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10 Effectiveness. This Supplemental Indenture shall become effective upon execution by the Company, the Guarantors and the Trustee; provided that nothing herein shall be construed to amend, change or modify in any material respect the obligation of the Company to make and consummate an Asset Sale Offer with respect to an Asset Sale Offer Trigger Date, which may have occurred prior to the date hereof; provided further that Sections 2, 4 and 6 of this Supplemental Indenture shall not become operative until the Company delivers written notice to the Trustee that at least 66 2/3% of the aggregate principal amount of the Notes validly tendered and not validly withdrawn pursuant to the Statement have been accepted for purchase. In the event the Company notifies (if orally, then confirmed in writing) Xxxxx Fargo Bank, N.A., as depositary for the Notes under the Statement, that it has withdrawn or terminated the offers to purchase the Notes pursuant to the Statement, this Supplemental Indenture shall be terminated and of no force or effect and the Indenture shall not be modified hereby.
SECTION 11 Further Instruments and Acts. Upon request of the Company, the Trustee will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purpose of this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first written above.
| The Company: | ||
| CROWN EUROPEAN HOLDINGS SA | ||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxxxx | |
| Title: | Directeur Général Délégué | |
| The Guarantors: | ||
| CROWN CORK & SEAL COMPANY, INC. | ||
| By: |
/s/ Xxxx X. Xxxxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxxxx | |
| Title: | Vice President & CFO | |
| Attest: |
||
| By: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxxxx | |
| Title: | Assistant Secretary | |
| CENTRAL STATES CAN CO. OF PUERTO | ||
| CROWN AMERICAS LLC | ||
| CROWN BEVERAGE PACKAGING, INC. | ||
| CROWN BEVERAGE PACKAGING | ||
| CROWN CONSULTANTS, INC. | ||
| CROWN CORK & SEAL COMPANY (DE), LLC | ||
| CROWN CORK & SEAL USA, INC. | ||
| CROWN FINANCIAL CORPORATION | ||
| CROWN FINANCIAL MANAGEMENT, INC. | ||
| CROWN HOLDINGS (PA), LLC | ||
| CROWN INTERNATIONAL HOLDINGS, INC. | ||
| CROWN PACKAGING TECHNOLOGY, INC. | ||
| CROWN XXXXXX USA, INC. | ||
| FOREIGN MANUFACTURERS FINANCE | ||
| NWR, INC. | ||
| By: |
/s/ Xxxxxxx X. Xxxxx | |
| Name: |
Xxxxxxx X. Xxxxx | |
| Title: |
Authorized Officer | |
| CROWN HOLDINGS, INC. | ||
| By: | /s/ Xxxx X. Xxxxxxxxxx | |
| Name: | Xxxx X. Xxxxxxxxxx | |
| Title: | Executive Vice President & CFO | |
| Attest: | /s/ Xxxxxxxx Xxxxxxxxx | |
| Name: | Xxxxxxxx Xxxxxxxxx | |
| Title: | Assistant Secretary | |
| CROWN VERPAKKING BELGIE NV | ||
| By: | /s/ Xxxxx Xxxxxxxx | |
| Name: | Xxxxx Xxxxxxxx | |
| Title: | Attorney-in-Fact | |
| 889273 ONTARIO INC. | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary | |
| CROWN XXXXXX CANADA INC. | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary | |
| CROWN CANADIAN HOLDINGS ULC | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary | |
| CROWN METAL PACKAGING CANADA LP | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary | |
| 3079939 NOVA SCOTIA COMPANY/3079939 COMPAGNIE DE LA NOUVELLE ÉCOSSE | ||
| By: |
/s/ Xxxxxx Xxxxxxx | |
| Name: |
Xxxxxx Xxxxxxx | |
| Title: |
Secretary | |
| SOCIETE DE PARTICIPATIONS CARNAUDMETALBOX SAS | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN BEVCAN FRANCE SAS | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN EMBALLAGE FRANCE SAS | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN DÉVELOPPEMENT SAS | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN VERPACKUNGEN DEUTSCHLAND GMBH | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | “Prokurist” | |
| CROWN VERSCHLUSSE DEUTSCHLAND GMBH | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxx X. Xxxxxxx | |
| Title: | Attorney-in-Fact | |
| CROWN NAHRUNGSMITTELDOSEN GMBH | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxx X. Xxxxxxx | |
| Title: | Attorney-in-Fact | |
| CROWN NAHRUNGSMITTELDOSEN DEUTSCHLAND GMBH | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxx X. Xxxxxxx | |
| Title: | Attorney-in-Fact | |
| CROWN SPECIALTY PACKAGING DEUTSCHLAND GMBH | ||
| By: | /s/ Xxxxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxxxx X. Xxxxxxx | |
| Title: | Attoney-in-Fact | |
| CROWN CORK & SEAL DEUTSCHLAND HOLDINGS GMBH | ||
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | Managing Director | |
| By: | /s/ Xxxx Xxxxx | |
| Name: | Xxxx Xxxxx | |
| Title: | “Prokurist” | |
| CROWN ENVASES MEXICO S.A. DE C.V. | ||
| By: |
/s/ Xxxx Xxxxxx Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxx Xxxx Xxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN MEXICAN HOLDINGS, S. DE X.X. DE | ||
| By: |
/s/ Xxxx Xxxxxx Xxxx Xxxxxxx | |
| Name: |
Xxxx Xxxxxx Xxxx Xxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN XXXXX XX | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN UK HOLDINGS LIMITED | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CARNAUDMETALBOX OVERSEAS LIMITED | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN CORK & SEAL FINANCE PLC | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CARNAUDMETALBOX GROUP UK LIMITED | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN SPECIALTY PACKAGING UK PLC | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CARNAUDMETALBOX ENGINEERING PLC | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN AEROSOLS UK LIMITED | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| CROWN PACKAGING UK PLC | ||
| By: |
/s/ Xxxxx Xxxxxxxx | |
| Name: |
Xxxxx Xxxxxxxx | |
| Title: |
Attorney-in-Fact | |
| XXXXX FARGO BANK, N.A., as Trustee | ||
| By: |
/s/ Xxxxxxx Xxxx | |
| Name: |
Xxxxxxx Xxxx | |
| Title: |
Vice President | |
