EXECUTION COPY
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CEH PLEDGE AGREEMENT
By
CROWN EUROPEAN HOLDINGS SA
as Pledgor
and
CITICORP TRUSTEE COMPANY LIMITED,
as Euro Collateral Agent
______________________
Dated as of February 26, 2003
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TABLE OF CONTENTS
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Page
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SECTION 1. Pledge.........................................................4
SECTION 2. Delivery of the Collateral.....................................5
SECTION 3. Representations, Warranties and Covenants......................6
SECTION 4. Registration in Nominee Name; Denominations....................7
SECTION 5. Voting Rights; Dividends and Interest, etc.....................7
SECTION 6. Remedies upon Default..........................................8
SECTION 7. Application of Proceeds of Sale...............................10
SECTION 8. Euro Collateral Agent Appointed Attorney-in-Fact..............10
SECTION 9. Waivers; Amendment............................................11
SECTION 10. Securities Act, etc...........................................11
SECTION 11. Registration, etc.............................................12
SECTION 12. Security Interest Absolute....................................12
SECTION 13. Termination; Release..........................................13
SECTION 14. Notices.......................................................13
SECTION 15. Further Assurances............................................13
SECTION 16. Binding Effect; Several Agreement; Assignment.................13
SECTION 17. Survival of Agreement; Severability...........................14
SECTION 18. GOVERNING LAW.................................................14
SECTION 19. Counterparts..................................................14
SECTION 20. Rules of Interpretation.......................................15
SECTION 21. Jurisdiction; Consent to Service of Process...................15
SECTION 22. WAIVER OF JURY TRIAL..........................................15
SECTION 23. [Reserved]....................................................16
SECTION 24. Execution of Financing Statements.............................16
SECTION 25. Certain Definitions...........................................16
SCHEDULES
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Schedule I Pledged Securities
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CEH PLEDGE AGREEMENT
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CEH PLEDGE AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, this "Agreement") dated as
of February 26, 2003, among CROWN EUROPEAN HOLDINGS SA, a societe anonyme
organized under the laws of France ("Pledgor"), and CITICORP TRUSTEE COMPANY
LIMITED, as Euro Collateral Agent (in such capacity, and together with any
successors in such capacity, the "Euro Collateral Agent") for the Applicable
Secured Parties (as hereinafter defined).
R E C I T A L S
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A. Contemporaneously with the execution and delivery of this
Agreement, Crown Cork & Seal Americas Inc, as U.S. borrower (in such capacity,
the "U.S. Borrower"), Pledgor, as Euro borrower (in such capacity, the "Euro
Borrower"), the subsidiary borrowers named therein, (the "Subsidiary Borrowers",
together with the Euro Borrower, the "Non-U.S. Borrowers", together with the
U.S. Borrower, the "Borrowers"), Crown Holdings, Inc. ("Crown Holdings"), Cork &
Seal Company, Inc. ("CCSC"), Crown International Holdings, Inc. ("Crown
International"), the lenders from time to time party thereto (the "Lenders"),
Citicorp North America, Inc. ("Citi/SSB"), as administrative agent (in such
capacity, together with its successors and assigns in such capacity, the
"Administrative Agent"), Citibank International plc, as U.K. administrative
agent (in such capacity, together with its successors and assigns in such
capacity, the "U.K. Administrative Agent"), Deutsche Bank Securities Inc.
("DBSI"), as syndication agent (in such capacity, together with its successors
and assigns in such capacity, the "Syndication Agent"), DBSI and Xxxxxxx Xxxxx
Xxxxxx Inc. ("SSB"), as joint lead arrangers and as joint bookrunners (in such
capacities, together with its successors and assigns in such capacities, the
"Joint Lead Arrangers") and ABN AMRO Incorporated, as joint bookrunner and ABN
AMRO N.V., as documentation agent (in such capacity, together with its
successors and assigns in such capacity, the "Documentation Agent") have entered
into that certain credit agreement dated as of the date hereof, (as amended,
amended and restated, supplemented or otherwise modified from time to time, the
"Credit Agreement") which term shall also include and refer to any increase in
the amount of indebtedness under the Credit Agreement and any refinancing or
replacement of the Credit Agreement or one or more successor or replacement
facilities whether or not with a different group of agents or lenders and
whether or not with different obligors upon the Administrative Agent's
acknowledgment of the termination of the predecessor Credit Agreement, pursuant
to which the Lenders have agreed to make certain Loans (as defined in the Credit
Agreement and hereinafter referred to as the "Loans") and issue certain Letters
of Credit (as defined in the Credit Agreement) to or for the account of the
Borrowers upon the terms and subject to the conditions set forth in the Credit
Agreement.
B. Pursuant to the Credit Agreement, Pledgor will guarantee
the borrowings of the Subsidiary Borrowers in respect of the Term B Euro Loans
and the Revolving Euro Loans (the "Parent Guarantee").
C. Contemporaneously with the execution and delivery of this
Agreement, certain of the direct and indirect Subsidiaries of Pledgor (together
with each other Subsidiary of Pledgor that from time to time after the date
hereof guarantee the obligations (as hereinafter defined) of the Non-U.S.
Borrowers under the Credit Agreement and the other Loan Documents, the
"Guarantors") will guarantee or become co-obligors under the Obligations of the
Non-U.S. Borrowers under the Credit Agreement and the other Loan Documents (as
amended, amended and restated, supplemented or otherwise modified from time to
time and together with any further guarantees by the Guarantors of the
Obligations of the Non-U.S. Borrowers under the Credit Agreement, the "Credit
Guarantees").
D. It is contemplated that, to the extent permitted by the
Credit Agreement, Euro Borrower or any of its subsidiaries may from time to time
enter into one or more hedging agreements (collectively, the "Bank Related
Hedging Agreements") with any counterparty that was the U.K. Administrative
Agent or a Lender or Affiliate thereof or any other Person permitted under the
Credit Agreement at the time such Bank Related Hedging Agreement was entered
into (individually, a "Bank Related Hedging Exchanger" and, collectively, the
"Bank Related Hedging Exchangers") and it is desired that the obligations of
Euro Borrower or any of its subsidiaries under such Bank Related Hedging
Agreements, including the obligation to make payments in the event of early
termination, be secured hereunder to the extent that the Bank Related Hedging
Exchanger executes and delivers to the Euro Collateral Agent an acknowledgment
to the Euro Intercreditor Agreement (as hereinafter defined) in the form annexed
thereto ("Intercreditor Acknowledgment"), agreeing to be bound by the terms
thereof at any time prior to the payment in full of the Obligations.
E. It is contemplated that, to the extent permitted by the
Credit Agreement, Euro Borrower or any of its subsidiaries may from time to time
enter into one or more Bank Related Cash Management Agreements (as defined
below) with any counterparty that was the Euro Collateral Agent or a Lender or
Affiliate thereof or any other Person permitted under the Credit Agreement at
the time such Bank Related Cash Management Agreement was entered into
(individually, a "Bank Related Cash Management Exchanger" and, collectively, the
"Bank Related Cash Management Exchangers") and it is desired that the
obligations of Euro Borrower or any of its subsidiaries under such Bank Related
Cash Management Agreements, including the obligation to make payments in the
event of early termination thereunder, be secured hereunder to the extent that
the Bank Related Cash Management Exchanger executes and delivers to the Euro
Collateral Agent an Intercreditor Acknowledgment.
F. Contemporaneously with the execution and delivery of this
Agreement, (i) Pledgor, as issuer (in such capacity, the "Second Priority
Issuer") is issuing $1.085 billion aggregate principal amount of 9 1/2% Second
Priority Senior Secured Notes due 2011 (the "Second Lien Dollar Notes") and
(euro)285 million aggregate principal amount of 10 1/4% Second Priority Senior
Secured Notes due 2011 (the "Second Lien Euro Notes" and, together with the
Second Lien Dollar Notes, the "Second Lien Notes", which term shall include (a)
any exchange notes which are issued in a registered exchange offer for the
Second Lien Notes and (b) any additional Second Lien Notes issued by the Second
Priority Issuer after the date hereof under the Second Priority Indenture (as
hereinafter defined) to the extent that such issuance is permitted by the
Financing Documents, and any exchange notes issued in a registered exchange
offer for such additional Second Lien Notes), in each case, under an indenture
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "Second Priority Notes Indenture") among Crown Euroco and Xxxxx
Fargo Bank Minnesota, National Association, as trustee for the holders of the
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Second Lien Notes (in such capacity, together with its successors and assigns in
such capacity, the "Second Priority Notes Trustee") and (ii) each of the
Guarantors are guaranteeing or becoming co-obligors of the obligations of the
Second Priority Issuer under the Second Priority Notes Indenture (as amended,
amended and restated, supplemented or otherwise modified from time to time and
together with any future guarantees or co-issuances by the Guarantors of the
Obligations of Crown Euroco under the Indenture, the "Second Priority Notes
Guarantees").
G. Contemporaneously with the execution and delivery of this
Agreement, (i) the Pledgor, as issuer (in such capacity, the "Third Priority
Issuer") is issuing $725 million aggregate principal amount of 10 7/8% Third
Priority Senior Secured Notes due 2013 (the "Third Lien Notes"), which term
shall include (a) any exchange notes which are issued in a registered exchange
offer for the Third Lien Notes and (b) any additional Third Lien Notes issued by
the Third Priority Issuer after the date hereof under the Third Priority
Indenture (as hereinafter defined) to the extent that such issuance is permitted
by the Financing Documents, and any exchange notes issued in a registered
exchange offer for such additional Third Lien Notes), in each case under an
indenture (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Third Priority Notes Indenture") among Crown Euroco and
Xxxxx Fargo Bank Minnesota, National Association, as trustee for the holders of
the Third Lien Notes (in such capacity, together with its successors and assigns
in such capacity, the "Third Priority Notes Trustee") and (ii) each of the
Guarantors are guaranteeing or becoming co-obligors of the obligations of the
Third Party Issuer under the Third Priority Notes Indenture (as amended, amended
and restated, supplemented or otherwise modified from time to time and together
with any future guarantees or co-issuances by the Guarantors of the Obligations
of Crown Euroco under the Indenture, the "Third Priority Notes Guarantees").
H. Contemporaneously with the execution of this Agreement,
CCSC, Crown Holdings, Euro Collateral Agent, Euro Borrower, certain subsidiaries
of Euro Borrower party thereto, the U.K. Administrative Agent, the other parties
thereto and any other persons who may from time to time become party thereto
have entered into that certain intercreditor agreement dated as of the date
hereof (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Euro Intercreditor Agreement").
I. Pledgor will receive substantial benefits from the
execution, delivery and performance of the obligations under the Financing
Documents and is, therefore, willing to enter into this Agreement.
J. Pledgor is or, as to Collateral (as hereinafter defined)
acquired by such Pledgor after the date hereof will be, the legal and/or
beneficial owner of the Collateral pledged by it hereunder.
K. This Agreement is given by Pledgor in favor of the Euro
Collateral Agent for the benefit of, in the case of the Equity Interests
Collateral (as defined below), the First Priority Secured Parties, and in the
case of the Debt Securities Collateral, the Secured Parties.
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NOW THEREFORE, in consideration of the foregoing and other
benefits accruing Pledgor, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby makes the following representations and warranties
to the Euro Collateral Agent for the benefit of the Applicable Secured Parties
(and each of their respective successors and assigns), as follows:
SECTION 1. Pledge. (a) As security for the payment and performance, as the
case may be, in full of the First Priority Obligations only, Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates, pledges, sets over
and delivers unto the Euro Collateral Agent, its successors and assigns, and
hereby grants to the Euro Collateral Agent, its successors and assigns, for the
ratable benefit of the Bank Secured Parties, a first priority security interest
in all of such Pledgor's right, title and interest in, to and under (a) all the
shares of capital stock and other Equity Interests owned by it listed on
Schedule I hereto and any shares of capital stock and other Equity Interests of
any Subsidiary obtained or formed in the future by such Pledgor to the extent
required by the Credit Agreement (collectively, the "Pledged Stock"); provided
that the Pledged Stock shall not include directors' qualifying shares, to the
extent that applicable law requires that a Subsidiary of the Pledgor issue such
qualifying shares; (b) all other property that may be delivered to and held by
the Euro Collateral Agent pursuant to the terms hereof; (c) subject to Section
5, all payments of 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 the securities referred to in clause (a) above;
(d) subject to Section 5, all rights and privileges of the Pledgor with respect
to the securities and other property referred to in clause (a), (b) and (c)
above; and (e) all proceeds of any and all of the foregoing (all the foregoing,
collectively, the "Equity Interests Collateral").
(b) The following Liens on the Debt Securities Collateral are hereby
granted:
1. As security for the payment and performance, as the case may
be, in full of the First Priority Obligations, Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates,
pledges, sets over and delivers unto the Euro Collateral Agent,
its successors and assigns, and hereby grants to the Euro
Collateral Agent, its successors and assigns, for the benefit of
the First Priority Secured Parties, a first priority security
interest in all of Pledgor's right, title and interest in, to and
under the Debt Securities Collateral.
2. As security for the payment and performance, as the case may
be, in full of the Second Priority Obligations, Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates,
pledges, sets over and delivers unto the Euro Collateral Agent,
its successors and assigns, and hereby grants to the Euro
Collateral Agent, its successors and assigns, for the benefit of
the Second Priority Secured Parties, a second priority security
interest in all of Pledgor's right, title and interest in, to and
under the Debt Securities Collateral.
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3. As security for the payment and performance, as the case may
be, in full of the Third Priority Obligations, Pledgor hereby
transfers, grants, bargains, sells, conveys, hypothecates,
pledges, sets over and delivers unto the Euro Collateral Agent,
its successors and assigns, and hereby grants to the Euro
Collateral Agent, its successors and assigns, for the benefit of
the Third Priority Secured Parties, a third priority security
interest in all of Pledgor's right, title and interest in, to and
under the Debt Securities Collateral.
Upon delivery to the Euro Collateral Agent, (a) any stock
certificates, notes or other securities now or hereafter included in the
Collateral (the "Pledged Securities") shall be accompanied by stock powers duly
executed in blank or other instruments of transfer satisfactory to the Euro
Collateral Agent and by such other instruments and documents as the Euro
Collateral Agent may reasonably request and (b) all other property comprising
part of the Collateral shall be accompanied by proper instruments of assignment
duly executed by the applicable Pledgor and such other instruments or documents
as the Euro Collateral Agent may reasonably request. Each subsequent delivery of
Pledged Securities shall be accompanied by a schedule describing the securities
then being pledged hereunder, which schedule shall be attached hereto as a
supplement to Schedule I and made a part hereof. Each schedule so delivered
shall supplement any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Euro Collateral Agent, its successors and assigns, for the
benefit of the Applicable Secured Parties, forever; subject, however, to the
terms, covenants and conditions hereinafter set forth.
Notwithstanding any other provision hereof, if any Collateral
constitutes Restricted Securities, then such Collateral shall not secure any
Obligations constituting Exempted Indebtedness except to the extent that such
Obligations constitute Restricted Secured Indebtedness; provided that (i) if any
Public Debt is required to be secured by a Lien on such Collateral as a result
of the operation of any negative pledge covenant in any indenture, agreement or
instrument governing such Public Debt or (ii) the Public Debt ceases to be
outstanding or no longer restricts the ability of any Pledgor to pledge
Restricted Securities without also securing the Public Debt, then the
Obligations secured hereunder shall be equal to the maximum aggregate amount of
Obligations outstanding under the Financing Documents. If any Collateral
constitutes Restricted Securities any payments or repayments of the Obligations
shall not be deemed to be applied against, or to reduce, the amount of
Restricted Secured Indebtedness that may be secured hereby.
SECTION 2. Delivery of the Collateral. (a) Pledgor agrees promptly to
deliver or cause to be delivered to the Euro Collateral Agent any and all
Pledged Securities, and any and all certificates or other instruments or
documents representing the Collateral.
(b) Pledgor will cause any Indebtedness for borrowed money owed (in
excess, individually or in the aggregate of $500,000) to such Pledgor by any
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Person to be evidenced by a duly executed promissory note that is pledged and
delivered to the Euro Collateral Agent pursuant to the terms hereof.
SECTION 3. Representations, Warranties and Covenants. Pledgor hereby
represents, warrants and covenants, as to itself and the Collateral pledged by
it hereunder, to and with the Euro Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth on
Schedule I of the issued and outstanding shares of each class of the capital
stock or other Equity Interests of the issuer with respect thereto;
(b) except for the security interest granted hereunder, such Pledgor
(i) is and will at all times continue to be the direct owner, beneficially and
of record, of the Pledged Securities indicated on Schedule II, (ii) holds the
same free and clear of all Liens (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 Collateral, other than pursuant hereto or as other wise
permitted under the Credit Agreement, and (iv) subject to Section 5, will cause
any and all Collateral, whether for value paid by the Pledgor or otherwise, to
be forthwith deposited with the Euro Collateral Agent and pledged or assigned
hereunder;
(c) the Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and (ii) will defend its
title or interest thereto or therein against any and all Liens (other than the
Lien created by this Agreement), however arising, of all Persons whomsoever;
(d) no consent of any other Person (including stockholders or creditors
of Pledgor) and no consent or approval of any Governmental Authority or any
securities exchange was or is necessary to the validity of the pledge effected
hereby;
(e) by virtue of the execution and delivery by the Pledgor of this
Agreement, when the Pledged Securities, certificates or other documents
representing or evidencing the Collateral are delivered to the Euro Collateral
Agent in accordance with this Agreement, and subject to the completion of
certain post-closing obligations described in Section 5.18(a)(ii) of the Credit
Agreement, the Euro Collateral Agent will obtain a valid and perfected first
lien upon and security interest in such Pledged Securities as security for the
payment and performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the Euro
Collateral Agent, on behalf of the Applicable Secured Parties, the rights of the
Euro Collateral Agent in the Collateral as set forth herein;
(g) all of the Pledged Stock has been duly authorized and validly
issued and is fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged Securities
is accurate and complete in all material respects as of the date hereof; and
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(i) the pledge of the Pledged Securities pursuant to this Agreement
does not violate Regulation U or X of the Federal Reserve Board or any successor
thereto as of the date hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Euro
Collateral Agent, on behalf of the Applicable Secured Parties, shall have the
right (in its sole and absolute discretion) to hold the Pledged Securities in
its own name as pledgee, the name of its nominee (as pledgee or as sub-agent) or
the name of the Pledgor, endorsed or assigned in blank or in favor of the Euro
Collateral Agent; provided that the Euro Collateral Agent shall not exercise
such right without the consent of the Borrowers in the event an Event of Default
is not continuing. Pledgor will promptly give to the Euro Collateral Agent
copies of any notices or other communications received by it with respect to
Pledged Securities registered in the name of such Pledgor. The Euro Collateral
Agent shall at all times have the right to exchange the certificates
representing Pledged Securities for certificates of smaller or larger
denominations for any purpose consistent with this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Pledgor 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 Financing
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
adversely affect the rights inuring to a holder of the Pledged
Securities or the rights and remedies of any of the Applicable Secured
Parties under this Agreement, the Credit Agreement or any other Loan
Document or the ability of the Applicable Secured Parties to exercise
the same;
(ii) The Euro Collateral Agent shall execute and deliver to Pledgor, or
cause to be executed and delivered to Pledgor, all such proxies, powers
of attorney and other instruments as such Pledgor may reasonably
request for the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise pursuant
to subparagraph (i) above and to receive the cash dividends it is
entitled to receive pursuant to subparagraph (iii) below; and
(iii) Pledgor shall be entitled to receive and retain any and all cash
dividends, interest and principal paid on the Pledged Securities to the
extent and only to the extent that such cash dividends, interest and
principal are permitted by, and otherwise paid in accordance with, the
terms and conditions of the Credit Agreement, the other Financing
Documents and applicable laws. All noncash dividends, interest and
principal and all dividends, interest and principal paid or payable in
cash or otherwise in connection with a partial or total liquidation or
dissolution, return of capital, capital surplus or paid-in surplus, and
all other distributions (other than distributions referred to in the
preceding sentence) made on or in respect of the Pledged Securities,
whether paid or payable in cash or otherwise, whether resulting from a
subdivision, combination or reclassification of the outstanding capital
stock of the issuer of any Pledged Securities or received in exchange
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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 Collateral, and, if received by
Pledgor, shall not be commingled by such Pledgor 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 Euro Collateral Agent and shall
be forthwith delivered to the Euro Collateral Agent in the same form as
so received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of Pledgor to dividends, interest or principal that Pledgor
is authorized to receive pursuant to paragraph (a)(iii) above shall cease, and
all such rights shall thereupon become vested in the Euro Collateral Agent,
which shall have the sole and exclusive right and authority to receive and
retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Euro Collateral Agent, shall be
segregated from other property or funds of Pledgor and shall be forthwith
delivered to the Euro Collateral Agent upon demand in the same form as so
received (with any necessary endorsement). Any and all money and other property
paid over to or received by the Euro Collateral Agent pursuant to the provisions
of this paragraph (b) shall be retained by the Euro Collateral Agent in an
account to be established by the Euro Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the provisions
of Section 7. After all Events of Default have been cured or waived, the Euro
Collateral Agent shall, within five (5) Business Days after all such Events of
Default have been cured or waived, repay to Pledgor all cash dividends, interest
or principal (without interest), that such Pledgor would otherwise be permitted
to retain pursuant to the terms of paragraph (a)(iii) above and which remain in
such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of Pledgor to exercise the voting and consensual rights and
powers it is entitled to exercise pursuant to paragraph (a)(i) of this Section
5, and the obligations of the Euro Collateral Agent under paragraph (a)(ii) of
this Section 5, shall cease, and all such rights shall thereupon become vested
in the Euro Collateral Agent, which shall have the sole and exclusive right and
authority to exercise such voting and consensual rights and powers; provided
that, unless otherwise required pursuant to the provisions of the Euro
Intercreditor Agreement, the Euro Collateral Agent shall have the right from
time to time following and during the continuance of an Event of Default to
permit the Pledgor to exercise such rights and such permission shall be deemed
to have been granted absent notice to the contrary to the Pledgor from the Euro
Collateral Agent. After all Events of Default have been cured or waived, such
Pledgor will have the right to exercise the voting and consensual rights and
powers that it would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Euro Collateral Agent may sell or otherwise dispose of the
Collateral, or any part thereof, at 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 Euro Collateral Agent shall deem appropriate. The Euro
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Collateral Agent shall be authorized at any such sale (if it deems it advisable
to do so) to restrict the prospective bidders or purchasers to Persons who will
represent and agree that they are purchasing the Collateral for their own
account for investment and not with a view to the distribution or sale thereof,
and upon consummation of any such sale the Euro 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 Pledgor, and, to the
extent permitted by applicable law, the Pledgor hereby waive all rights of
redemption, stay, valuation and appraisal Pledgor now has or may at any time in
the future have under any rule of law or statute now existing or hereafter
enacted.
The Euro Collateral Agent shall give a Pledgor ten (10) days'
prior written notice (which Pledgor agrees is reasonable notice within the
meaning of Section 9-611 of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the Euro
Collateral Agent's intention to make any sale of such Pledgor's 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 Euro
Collateral Agent may fix and state in the notice of such sale. At any such sale,
the Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Euro Collateral Agent may (in its sole
and absolute discretion) determine. The Euro 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 Euro 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 case any sale of all or any part of the Collateral is made on
credit or for future delivery, the Collateral so sold may be retained by the
Euro Collateral Agent until the sale price is paid in full by the purchaser or
purchasers thereof, but the Euro Collateral Agent shall not incur any liability
in case any such purchaser or purchasers shall fail to take up and pay for the
Collateral so sold and, in case of any such failure, such Collateral may be sold
again upon like notice. At any public (or, to the extent permitted by applicable
law, private) sale made pursuant to this Section 6, any Secured Party may bid
for or purchase, free from any right of redemption, stay, valuation or appraisal
on the part of Pledgor (all said rights being also hereby waived and released),
the Collateral or any part thereof offered for sale and may make payment on
account thereof by using any Obligation then due and payable to such Secured
Party from Pledgor as a credit against the purchase price, and such Secured
Party may, upon compliance with the terms of sale, hold, retain and dispose of
such property without further accountability to Pledgor therefor. For purposes
hereof, (a) a written agreement to purchase the Collateral or any portion
thereof shall be treated as a sale thereof, (b) the Euro Collateral Agent shall
be free to carry out such sale pursuant to such agreement and (c) no Pledgor
shall be entitled to the return of the Collateral or any portion thereof subject
thereto, notwithstanding the fact that after the Euro 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 Euro Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose upon the Collateral and to sell
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the Collateral orally 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 6
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-611 of the Uniform Commercial Code as in effect in the State of New
York or its equivalent in other jurisdictions.
SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of cash,
shall be applied by the Euro Collateral Agent as provided in the Euro
Intercreditor Agreement.
The Euro 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 the Collateral by the Euro 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 Euro 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 Euro Collateral Agent or such officer or be
answerable in any way for the misapplication thereof.
SECTION 8. Euro Collateral Agent Appointed Attorney-in-Fact. Pledgor
hereby appoints the Euro Collateral Agent the attorney-in-fact of such Pledgor
for the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Euro Collateral Agent may deem
necessary or advisable to accomplish the purposes hereof, which appointment is
irrevocable and coupled with an interest provided that the Euro Collateral Agent
shall only take any action pursuant to such appointment upon the occurrence and
during the continuation of an Event of Default. Without limiting the generality
of the foregoing, the Euro Collateral Agent shall have the right, upon the
occurrence and during the continuance of an Event of Default, with full power of
substitution either in the Euro Collateral Agent's name or in the name of such
Pledgor, to ask for, demand, xxx for, collect, receive and give acquittance for
any and all moneys due or to become due under and by virtue of any Collateral,
to endorse checks, drafts, orders and other instruments for the payment of money
payable to the Pledgor representing any dividend or other distribution payable
in respect of the Collateral or any part thereof or on account thereof and to
give full discharge for the same, to settle, compromise, prosecute or defend any
action, claim or proceeding with respect thereto, and to sell, assign, endorse,
pledge, transfer and to make any agreement respecting, or otherwise deal with,
the same; provided, however, that nothing herein contained shall be construed as
requiring or obligating the Euro Collateral Agent to make any commitment or to
make any inquiry as to the nature or sufficiency of any payment received by the
Euro 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 therefor any property covered thereby. The Euro
Collateral Agent and the other Applicable 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 Pledgor for any act or failure to
act hereunder, except for their own gross negligence or willful misconduct.
SECTION 9. Waivers; Amendment. (a) No failure or delay of the Euro
Collateral Agent in exercising any power or right hereunder shall operate as a
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waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Euro Collateral Agent
hereunder and of the other Applicable Secured Parties under the other Financing
Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provisions of this Agreement or any
other Financing Document or consent to any departure by Pledgor therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on Pledgor
in any case shall entitle such Pledgor or any other Pledgor 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 a written agreement entered into between
the Euro Collateral Agent (as directed by the Requisite Obligees specified in
the Euro Intercreditor Agreement) and the Pledgor with respect to which such
waiver, amendment or modification is to apply.
SECTION 10. Securities Act, etc. In view of the position of the Pledgor
in relation to the Pledged Securities, 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 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 Securities permitted hereunder. Pledgor understands
that compliance with the Federal Securities Laws might very strictly limit the
course of conduct of the Euro Collateral Agent if the Euro Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Euro Collateral Agent in
any attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Pledgor recognizes that in light of such restrictions and limitations
the Euro Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Euro 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 Securities or part thereof shall have been filed under the Federal
Securities Laws and (b) may approach and negotiate with a single potential
purchaser to effect such sale. Pledgor 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 Euro Collateral Agent shall incur no responsibility or liability for
selling all or any part of the Pledged Securities at a price that the Euro
Collateral Agent, in its sole and absolute discretion, may in good xxxxx xxxx
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 10 will apply notwithstanding the
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existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Euro Collateral Agent
sells.
SECTION 11. Registration, etc. Pledgor agrees that, upon the occurrence
and during the continuance of an Event of Default hereunder, if for any reason
the Euro Collateral Agent desires to sell any of the Pledged Securities of such
Pledgor at a public sale, it will, at any time and from time to time, upon the
written request of the Euro Collateral Agent, use its best efforts to take or to
cause the issuer of such Pledged Securities 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 Euro Collateral Agent to permit the public
sale of such Pledged Securities. Pledgor further agrees to indemnify, defend and
hold harmless the Euro Collateral 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, without limitation, reasonable fees and expenses to the Euro
Collateral Agent of legal counsel), 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 Pledgor or the issuer of such Pledged
Securities by the Euro Collateral Agent or any other Secured Party expressly for
use therein. Pledgor further agrees, upon such written request referred to
above, to use its best efforts to qualify, file or register, or cause the issuer
of such Pledged Securities to qualify, file or register, any of the Pledged
Securities under the Blue Sky or other securities laws of such states as may be
requested by the Euro Collateral Agent and keep effective, or cause to be kept
effective, all such qualifications, filings or registrations. Pledgor will bear
all costs and expenses of carrying out its obligations under this Section 11.
Pledgor acknowledges that there is no adequate remedy at law for failure by it
to comply with the provisions of this Section 11 and that such failure would not
be adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 11 may be specifically enforced.
SECTION 12. Security Interest Absolute. All rights of the Euro
Collateral Agent hereunder, the grant of a security interest in the Collateral
and all obligations of Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, the Euro Intercreditor Agreement, any other Financing 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, the Euro Intercreditor Agreement, any other Financing Document
or any other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, Pledgor in respect of the
Obligations or in respect of this Agreement (other than the indefeasible payment
in full of all the Obligations).
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SECTION 13. Termination; Release. (a) This Agreement and the security
interest shall terminate pursuant to an in accordance with the terms of Euro
Intercreditor Agreement; provided, however, this Agreement and the security
interest shall continue to be effective or be reinstated, as the case may be, if
at any time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Secured Party or any Pledgor upon the bankruptcy or
reorganization of any Pledgor or otherwise.
(b) In connection with any release of Collateral, release of Pledgor
from or termination of this Agreement pursuant to and in accordance with the
terms of the Euro Intercreditor Agreement, the Collateral Agent shall execute
and deliver to the applicable Pledgor, at such Pledgor's expense, all UCC
termination statements and such other documents that such Pledgor shall
reasonably request to evidence such termination or release. Any execution and
delivery of such UCC termination statements and other documents pursuant to this
Section 13 shall be without recourse to or warranty by the Euro Collateral
Agent.
SECTION 14. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.01 of the Credit Agreement.
SECTION 15. Further Assurances. Pledgor agrees to do such further acts
and things, and to execute and deliver such additional conveyances, assignments,
agreements and instruments, as the Euro Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Euro Collateral Agent its rights and
remedies hereunder.
SECTION 16. Binding Effect; Several Agreement; Assignment. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of Pledgor that are contained in this
Agreement shall bind and inure to the benefit of its successors and assigns.
This Agreement shall become effective as to Pledgor when a counterpart hereof
executed on behalf of such Pledgor shall have been delivered to the Euro
Collateral Agent and a counterpart hereof shall have been executed on behalf of
the Euro Collateral Agent, and thereafter shall be binding upon Pledgor and the
Euro Collateral Agent and their respective successors and assigns, and shall
inure to the benefit of Pledgor, the Euro Collateral Agent and the Applicable
Secured Parties, and their respective successors and assigns, except that no
Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
except as expressly contemplated by this Agreement or the other Financing
Documents. This Agreement shall be construed as a separate agreement with
respect to Pledgor and may be amended, modified, supplemented, waived or
released with respect to Pledgor without the approval of any other Pledgor and
without affecting the obligations of any other Pledgor hereunder.
SECTION 17. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Financing Document shall be considered
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to have been relied upon by the Euro Collateral Agent and the Applicable Secured
Parties and shall survive the making by the Lenders of the Loans, and the
Lender's issuance of and participations in Letters of Credit, the issuance of
the Second Priority Notes and the Third Priority Notes, regardless of any
investigation made by the Applicable Secured Parties or on their behalf, and
shall continue in full force and effect until this Agreement shall terminate.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby (it being understood
that the invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). 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. It is understood and agreed that this
Agreement shall create separate security interests in the Collateral securing
the Obligations, as provided in Section 1, and that any determination by any
court with jurisdiction that the security interest securing any Obligation or
class of Obligations is invalid for any reason shall not in and of itself
invalidate the security interest securing any other Obligations hereunder.
SECTION 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 19. 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 a single contract, and shall become effective
as provided in Section 16. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 20. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings 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 21. Jurisdiction; Consent to Service of Process. (a) Pledgor
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 the other Financing Documents, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that, to the extent permitted by applicable law, 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
referred to in paragraph (a) of this Section. 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 Euro Collateral Agent or any other Secured Party may otherwise have to bring
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any action or proceeding relating to this Agreement or the other Loan Documents
against Pledgor or its properties in the courts of any jurisdiction.
(b) Pledgor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that 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 the other Financing Documents in
any New York State or Federal court referred to in paragraph (a) of this
Section. 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 party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 22. 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 ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE 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 INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 23. [Reserved].
SECTION 24. Execution of Financing Statements. Pursuant to Section
9-509 of the Uniform Commercial Code as in effect in the State of New York or
its equivalent in other jurisdictions, Pledgor authorizes the Euro Collateral
Agent to file financing statements with respect to the Collateral owned by it
without the signature of such Pledgor in such form and in such filing offices as
the Euro Collateral Agent reasonably determines appropriate to perfect the
security interests of the Euro Collateral Agent under this Agreement. A carbon,
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement for filing in any jurisdiction.
SECTION 25. Certain Definitions. Capitalized terms used herein and not
otherwise defined shall have the meaning assigned to such term in the Credit
Agreement. For the purposes of this Agreement, the following terms shall have
the following meaning:
"Additional Second Priority Indebtedness" means unsubordinated
indebtedness of Pledgor issued or incurred on or after the date hereof, to the
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extent permitted to be incurred by the Credit Agreement and each other Financing
Document, which indebtedness is secured by a second priority Lien on the
Collateral.
"Additional Third Priority Indebtedness" means unsubordinated
indebtedness of Pledgor issued or incurred on or after the date hereof, to the
extent permitted to be incurred by the Credit Agreement and each other Financing
Document, which indebtedness is secured by a third priority Lien on the
Collateral.
"Applicable Secured Parties" means the First Priority Secured
Parties only, in the case of Equity Interests Collateral, and the Secured
Parties, in the case of Debt Securities Collateral, as the context requires.
"Collateral" means the Equity Securities Collateral and the
Debt Securities Collateral.
"Debt Securities Collateral" shall mean, collectively, (i) all
debt securities issued to Pledgor (including, without limitation, those listed
opposite the name of Pledgor on Schedule I hereto), (ii) all debt securities, in
the future issued to Pledgors and (iii) all promissory notes and any other
instruments evidencing such debt securities; (b) all other property that may be
delivered to and held by the Collateral Agent pursuant to the terms hereof; (c)
subject to Section 5, all payments of principal or interest, 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 the
securities referred to in clause (b) above; (d) subject to Section 5, all rights
and privileges of the Pledgor with respect to the securities and other property
referred to in clauses (a), (b) and (c) above; and (e) all proceeds of any and
all of the foregoing.
"Default" shall mean any "Default" under the Credit Agreement
as such term is defined in the Credit Agreement, and in respect of Debt
Securities Collateral only, after all First Priority Obligations under the
Credit Agreement, the other Loan Documents, the Bank Related Hedging Agreements
and the Bank Related Cash Management Agreements have been indefeasibly repaid in
full without any refinancing thereof through the incurrence of Indebtedness
having a Lien on any Collateral (as defined in the Credit Agreement) and all
Letters of Credit issued in connection with the Credit Agreement have
terminated, shall mean any "Default" under the Second Priority Notes Indenture
until all Second Priority Obligations have been indefeasibly repaid in full
without any refinancing thereof through the incurrence of Indebtedness having a
Lien on any Collateral and thereafter shall mean any "Default" under the Third
Priority Notes Indenture.
"Exempted Indebtedness" shall mean any Indebtedness or other
obligation which would be considered "Exempted Indebtedness" under (and as
defined in) any indenture, agreement or instrument governing or evidencing any
Public Debt as such indenture, agreement or instrument is in effect on the date
hereto.
"Event of Default" shall mean any "Event of Default" under the
Credit Agreement as such term is defined in the Credit Agreement, and, in
respect of Debt Securities Collateral only, after all First Priority Obligations
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have been indefeasibly repaid in full without any refinancing thereof through
the incurrence of Indebtedness having a Lien on any Collateral and all Letters
of Credit issued in connection with the Credit Agreement have terminated, shall
mean any "Event of Default under the Second Priority Notes Indenture until all
Second Priority Obligations under the Second Priority Notes Indenture have been
indefeasibly repaid in full without any refinancing thereof through the
incurrence of Indebtedness having a Lien on any Collateral, and thereafter shall
mean any "Event of Default" the Third Priority Notes Indenture.
"Financing Documents" means, collectively, (i) in the case of
the Equity Interest Collateral, the Loan Documents, the Bank Related Hedging
Agreements and the Bank Related Cash Management Agreements and (ii) in the case
of the Debt Securities Collateral, the Loan Documents, the Bank Related Hedging
Agreements, the Bank Related Cash Management Agreements, the Second Priority
Notes Documents, the Third Priority Notes Documents, the Additional Second
Priority Indebtedness Documents and the Additional Third Priority Indebtedness
Documents.
"First Priority Obligations" shall mean, collectively, the
following:
(i) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of First Priority Obligations
of the Pledgor to the Lenders, whether now existing or hereafter
incurred under, arising out of, or in connection with, the Credit
Agreement and the other Loan Documents and the due performance and
compliance by the Pledgor with all of the terms, conditions and
agreements contained in the Credit Agreement and in such other Loan
Documents;
(ii) to the extent any Bank Related Hedging Exchanger or Bank Related
Cash Management Exchanger has executed and delivered to the Euro
Collateral Agent an Intercreditor Acknowledgment in accordance with the
provisions of the Euro Intercreditor Agreement, the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of all Obligations owing by the Pledgor to the Bank Related
Hedging Exchanger party or the Bank Related Cash Management Exchanger
party, respectively, whether now existing or hereafter incurred,
arising out of or in connection with such Bank Related Hedging
Agreement or such Bank Related Cash Management Agreement respectively,
and the due performance and compliance by the Pledgor with all the
terms, conditions and agreements contained therein;
(iii) any and all sums advanced by the Euro Collateral Agent pursuant
to this Agreement in order to preserve the Collateral or protect its
lien and security interest in the Collateral;
(iv) in the event of any proceeding for the collection or enforcement
of any indebtedness, obligations or liabilities of the Pledgor, after
an Event of Default shall have occurred and be continuing, all
reasonable expenses of re-taking, holding, preparing for sale or lease,
selling or otherwise disposing of or realizing on the Collateral, in
connection with such collection of enforcement or of any exercise by
the Euro Collateral Agent of its rights hereunder, together with
reasonable attorneys' fees and disbursements and court costs; and
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(v) any and all renewals, extensions and modifications of any of the
obligations and liabilities referred to in clauses (i) through (iv)
above, whether outstanding on the date hereof or extended from time
hereafter, inclusive.
"First Priority Secured Parties" shall mean each of (a) the
Euro Collateral Agent (for its benefit and for the benefit of the Lenders); (b)
the U.K Administrative Agent, (c) the Syndication Agent, (d) the Joint Lead
Arrangers, (e) the Documentation Agent, (f) the Term B Euro Lenders and the
Revolving Euro Lenders, (g) in the event any Bank Related Hedging Obligations
are to be secured by this Agreement, the Bank Related Hedging Exchanger party to
the relevant Bank Related Hedging Agreement and (h) in the event any Bank
Related Cash Management Obligations are to be secured by this Agreement, the
Bank Related Cash Management Exchanger party to the relevant Cash Management
Agreement.
"Obligations" shall mean, collectively, the First Priority
Obligations, the Second Priority Obligations and the Third Priority Obligations.
"Restricted Secured Indebtedness" shall mean, at any time, the
portion of the Obligations constituting Exempted Indebtedness that is equal to
the maximum aggregate amount of Exempted Indebtedness that may be secured at
such time without causing any Public Debt to be required to be equally and
ratably secured, which "Restricted Secured Indebtedness" shall (i) first, secure
the Obligations in respect of the First Priority Obligations, (ii) second,
secure the Obligations in respect of the Second Priority Obligations and (iii)
third, secure the Obligations in respect of the Third Priority Obligations.
"Restricted Securities" shall mean any shares of capital stock
or evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by CCSC or any Restricted Subsidiary.
"Restricted Subsidiary" means any subsidiary of CCSC that
would be considered a "Restricted Subsidiary" under (and as defined in) any
indenture, agreement or instrument governing or evidencing any Public Debt as
such indentures, agreements or instruments are in effect on the date hereof.
"Second Priority Notes Documents" means the Second Priority
Notes Indenture, the Second Lien Notes, the Second Priority Notes Guarantees and
any other document executed by the Second Priority Issuer or any Guarantor in
connection with the issuance of the Second Lien Notes, in each case, as amended,
amended and restated, supplemented, refinanced, replaced or otherwise modified
from time to time.
"Second Priority Obligations" shall mean the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all Obligations of Pledgor to the holders of the Second Lien Notes or of
Indebtedness issued pursuant to any Additional Second Priority Indebtedness
Document, whether now existing or hereafter incurred under, arising out of, or
in connection with, the Second Priority Notes Documents or any Additional Second
Priority Indebtedness Document and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the Second
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Priority Notes Indenture or any Additional Second Priority Indebtedness
Document.
"Secured Parties" means (i) the First Priority Secured Parties
and (ii) the Second Priority Trustee (for its benefit and for the benefit of the
holders of the Second Lien Notes) and in the event any obligations in respect of
any Additional Second Priority Indebtedness are to be secured by this Agreement,
the Additional Second Priority Indebtedness Representative in respect of such
Additional Second Priority Indebtedness (for its benefit and for the benefit of
the holders of such Additional Second Priority Indebtedness) (the foregoing,
collectively, the "Second Priority Secured Parties"), and (iii) the Third
Priority Trustee (for its benefit and for the benefit of the holders of the
Third Lien Notes) and in the event any obligations in respect of any Additional
Third Priority Indebtedness are to be secured by this Agreement, the Additional
Third Priority Indebtedness Representative in respect of such Additional Third
Priority Indebtedness (for its benefit and for the benefit of the holders of
such Additional Third Priority Indebtedness) (the foregoing, collectively, the
"Third Priority Secured Parties".
"Third Priority Notes Documents" means the Third Priority
Notes Indenture, the Third Lien Notes, the Third Priority Notes Guarantees and
any other document executed by the Third Priority Issuer or any Guarantor in
connection with the issuance of the Third Lien Notes, in each case, as amended,
amended and restated, supplemented, refinanced, replaced or otherwise modified
from time to time.
"Third Priority Obligations" shall mean the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all Obligations of Pledgor to the holders of the Third Lien Notes or
Indebtedness issued pursuant to any Additional Third Priority Indebtedness
Document, whether now existing or hereafter incurred under, arising out of, or
in connection with, the Third Priority Notes Documents or any Additional Third
Priority Indebtedness Document and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the Third
Priority Notes Indenture or any Additional Third Priority Indebtedness Document.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-19-
CROWN EUROPEAN HOLDINGS SA, as Pledgor
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CITICORP TRUSTEE COMPANY LIMITED, as Euro
Collateral Agent
By: /s/ Xxxx X'Xxxx
-------------------------------------
Name: Xxxx X'Xxxx
Title: Vice President
Schedule I to the
CEH Pledge Agreement
Pledged Stock
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Issuer Number of Certificate Registered Owner Number and Class of Percentage of
Shares/Type of Shares/Interest
Interest Pledged
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Canada 1 Crown European 100 units 100%
Investments LLC Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CCK Deutschland 1 Crown European 100 units 100%
Investments LLC Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CCK Investments LLC 1 Crown European 100 units 100%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox Asia N/A Crown European 73,477,386 shares 85.90%
Limited Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Pakkaus OY N/A Crown European 25,000 shares 100%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox Senegal N/A Crown European 15,118 shares 75.59%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox SIEM N/A Crown European 534,917 shares 84.95%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Societe Malgache N/A Crown European 84,374 shares 99.87%
d'Emballages Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Financiere D'Emballages N/A Crown European 217,496 shares 50%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox Tworziwa N/A Crown European 115,227 shares 100%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox de N/A Crown European 34,000 shares 10%
Portugal Embalagens, Holdings SA
S.A.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork Consulting SA N/A Crown European 1 share 0.10%
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
La Artistica de Vigo N/A Crown European 126,921 shares 30%
Holdings SA
Pledged Debt Securities
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Issuer Payee Principal Amount Date of Note Maturity Date
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
CarnaudMetalbox NV Crown European $74,740,000 2/26/03
Holdings SA
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
