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BANK PLEDGE AGREEMENT
By
CROWN HOLDINGS, INC.
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL AMERICAS, INC.
CROWN INTERNATIONAL HOLDINGS, INC.
and
THE DOMESTIC SUBSIDIARIES PARTY HERETO,
as Pledgors
and
CITICORP NORTH AMERICA, INC.,
as 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 .........................................................3
SECTION 2. Delivery of the Collateral......................................4
SECTION 3. Representations, Warranties and Covenants.......................4
SECTION 4. Registration in Nominee Name; Denominations.....................5
SECTION 5. Voting Rights; Dividends and Interest, etc......................5
SECTION 6. Remedies upon Default...........................................7
SECTION 7. Application of Proceeds of Sale.................................8
SECTION 8. Collateral Agent Appointed Attorney-in-Fact.....................8
SECTION 9. Waivers; Amendment..............................................9
SECTION 10. Securities Act, etc............................................9
SECTION 11. Registration, etc.............................................10
SECTION 12. Security Interest Absolute....................................10
SECTION 13. Termination or Release........................................10
SECTION 14. Notices.......................................................11
SECTION 15. Further Assurances............................................11
SECTION 16. Binding Effect; Several Agreement; Assignment.................11
SECTION 17. Survival of Agreement; Severability...........................11
SECTION 18. GOVERNING LAW.................................................12
SECTION 19. Counterparts..................................................12
SECTION 20. Rules of Interpretation.......................................12
SECTION 21. Jurisdiction; Consent to Service of Process...................12
SECTION 22. WAIVER OF JURY TRIAL..........................................13
SECTION 23. Additional Pledgors...........................................13
SECTION 24. Execution of Financing Statements.............................13
SECTION 25. Certain Definitions...........................................13
SCHEDULES
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Schedule I........Domestic Subsidiaries
Schedule II.......Pledged Stock
ANNEXES
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Annex I .........Form of Supplement to Bank Pledge Agreement
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BANK PLEDGE AGREEMENT
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BANK 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 Holdings Inc., a Pennsylvania corporation ("Crown
Holdings"), CROWN CORK & SEAL COMPANY, INC., a Pennsylvania corporation (
"CCSC"), CROWN CORK & SEAL AMERICAS, INC., a Pennsylvania corporation ("Crown
Usco"), CROWN INTERNATIONAL HOLDINGS, INC., a Delaware corporation ("Crown
International"), each Domestic Subsidiary (as hereinafter defined) listed on
Schedule I hereto (collectively, together with each Domestic Subsidiary that
becomes a party hereto pursuant to Section 23 of this Agreement, the "Subsidiary
Guarantors" and, together with Crown Holdings, Crown Usco and CCSC, the
"Pledgors") and CITICORP NORTH AMERICA, INC. ("Citi/SSB"), as collateral agent
(in such capacity, and together with any successors in such capacity, the
"Collateral Agent") for the Secured Parties (as hereinafter defined).
R E C I T A L S
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B. Contemporaneously with the execution and delivery of this Agreement,
Crown Usco, as U.S. borrower (in such capacity, the "U.S. Borrower"), Crown
European Holdings SA, a societe anonyme organized under the laws of
France ("Crown Euroco") as non-U.S. borrower (in such capacity, the "Non-U.S.
Borrower"), the subsidiary borrowers named therein, (the "Subsidiary Borrowers",
together with the U.S. Borrower and the Non-U.S. Borrower, the "Borrowers"),
Crown Holdings, CCSC, Crown International, the lenders from time to time party
thereto (the "Lenders"), 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.
C. Contemporaneously with the execution and delivery of this Agreement,
Crown Holdings and each of the direct and indirect Domestic Subsidiaries of
Crown Holdings (together with each other Domestic Subsidiary of Crown Holdings
(other than the Insurance Subsidiary and the Receivables Subsidiary (each as
defined in the Credit Agreement)) that from time to time after the date hereof
guarantee the Obligations (as hereinafter defined) of the Borrowers under the
Credit Agreement and the other Loan Documents, the "Guarantors") will guarantee
or become co-obligors of the Obligations of the 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 Borrowers under
the Credit Agreement, the "Credit Guarantees").
D. It is contemplated that, from time to time, to the extent permitted
by the Credit Agreement, Crown Holdings or any of the direct or indirect
Domestic Subsidiaries of Crown Holdings may enter into one or more Hedging
Agreements (collectively, the "Bank Related Hedging Agreements") with any 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 Crown Holdings or its
Domestic Subsidiaries under such Bank Related Hedging Agreements, including the
obligation to make payments in the event of early termination thereunder (all
such obligations being the "Bank Related Hedging Obligations"), be secured by a
lien on and security interest in the Collateral (as hereinafter defined)
pursuant to this Agreement; provided that for any Bank Related Hedging Exchanger
to receive the benefit of such lien on, pledge and security interest in the
Collateral and the Credit Guarantees, it shall execute and deliver to the
Collateral Agent an acknowledgment to the Intercreditor Agreement (as
hereinafter defined) in the form annexed thereto (each such acknowledgment, a
"Intercreditor Acknowledgment") agreeing to be bound by the terms thereof.
E. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown Holdings or any of the direct or indirect Domestic Subsidiaries
of Crown Holdings may from time to time enter into one or more Bank Related Cash
Management Agreements (as defined herein) with one or more Lenders or their
respective Affiliates or any other Person permitted under the Credit Agreement
at the time such Bank Related Cash Management Agreement was entered into
(collectively, the "Bank Related Cash Management Exchangers") and it is desired
that the Obligations of Crown Holdings or its Domestic Subsidiaries under such
Bank Related Cash Management Agreements, including the obligation to make
payments in the event of early termination thereunder (all such obligations
being the "Bank Related Cash Management Obligations"), be secured by a lien on
and security interest in the Collateral pursuant to this Agreement and be
guaranteed by the Guarantors pursuant to the Credit Guarantees; provided that
for any Bank Related Cash Management Exchanger to receive the benefit of such
lien on, pledge and security interest in the Collateral and the Credit
Guarantees, it shall execute and deliver to the Collateral Agent an
Intercreditor Acknowledgment agreeing to be bound by the terms thereof.
F. The Borrowers and each Subsidiary Guarantor will receive substantial
benefits from the execution, delivery and performance of the obligations under
the Credit Agreement and is, therefore, willing to enter into this Agreement.
G. Each 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.
H. Contemporaneously with the execution and delivery of this Agreement,
Crown Holdings, Crown Usco, Crown International, CCSC, the Domestic Subsidiaries
from time to time party thereto and the Collateral Agent have entered into that
certain security agreement (as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to time, the "Security
Agreement").
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I. Contemporaneously with the execution and delivery of this Agreement,
the Pledgors, the Collateral Agent and certain other parties have entered into
that certain U.S. Intercreditor and Collateral Agency Agreement dated as of the
date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Intercreditor Agreement").
J. This Agreement is given by each Pledgor in favor of the Collateral
Agent for the benefit of the Secured Parties to secure the payment and
performance of the obligations (whether or not constituting future advances,
obligatory or otherwise) of the U.S. Borrower and any and all of the Pledgors
from time to time arising under or in respect of this Agreement, the Credit
Agreement, the Credit Guarantees, the Bank Related Hedging Agreements, the Bank
Related Cash Management Agreements and the other Loan Documents (including,
without limitation, the obligations to pay principal, interest and all other
charges, fees, expenses, commissions, reimbursements, premiums, indemnities and
other payments related to or in respect of the obligations contained in this
Agreement, the Credit Agreement, Credit Guarantees, the Bank Related Hedging
Agreements, the Bank Related Cash Management Agreements and the other Loan
Documents), in each case whether (i) such obligations are direct or indirect,
secured or unsecured, joint or several, absolute or contingent, due or to become
due whether at stated maturity, by acceleration or otherwise, (ii) arising in
the regular course of business or otherwise, (iii) for payment or performance
and/or (iv) now existing or hereafter arising (including, without limitation,
interest and other obligations arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization or similar proceeding with respect to any
Pledgor or any other Person, or which would have arisen or accrued but for the
commencement of such proceeding, even if such obligation or the claim therefor
is not enforceable or allowable in such proceeding) (collectively, the
"Obligations").
NOW THEREFORE, in consideration of the foregoing and other
benefits accruing each Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following representations and
warranties to the Collateral Agent for the benefit of the Secured Parties (and
each of their respective successors and assigns), as follows:
SECTION 1. Pledge. As security for the payment and performance, as the
case may be, in full of the Obligations, each Pledgor hereby transfers, grants,
bargains, sells, conveys, hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
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 (including, without limitation, those
listed on Schedule II hereto) and any shares of capital stock and other Equity
Interests of any Subsidiary obtained in the future by such Pledgor and the
certificates representing all such shares or interests (collectively, the
"Pledged Stock"); provided that the Pledged Stock shall not include (i) any
Equity Interests owned directly by Crown Holdings, (ii) more than 65% of the
issued and outstanding shares of voting stock of any Non-Domestic Subsidiary or
(iii) to the extent that applicable law requires that a Subsidiary of the
Pledgor issue directors' qualifying shares, such qualifying shares; (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,
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 clauses (a), (b), (c) and (d)
above; and (e) all proceeds of any and all of the foregoing (all the foregoing,
collectively, the "Collateral.").
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Upon delivery to the 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
Collateral Agent and by such other instruments and documents as the 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 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 II 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 Collateral Agent, its successors and assigns, for the benefit
of the 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 then outstanding. 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. Each Pledgor agrees promptly to
deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth
on Schedule II 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 otherwise permitted by 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 Collateral Agent and pledged or assigned
hereunder;
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(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 any 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 Pledgors of
this Agreement, when the Pledged Securities, certificates or other
documents representing or evidencing the Collateral are delivered to
the 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 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
Collateral Agent, on behalf of the Secured Parties, the rights of the
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
(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 Collateral
Agent, on behalf of the 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
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent;
provided that the Collateral Agent shall not exercise such right without the
consent of the Borrowers in the event an Event of Default is not continuing.
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The 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) Each 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 Loan
Documents; provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could materially and
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adversely affect the rights inuring to a holder of the Pledged
Securities or the rights and remedies of any of the Secured Parties
under this Agreement, the Credit Agreement or any other Loan Document
or the ability of the Secured Parties to exercise the same;
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each 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) Each Pledgor shall be entitled to receive and retain any
and all cash dividends paid on the Pledged Securities to the extent and
only to the extent that such cash dividends are permitted by, and
otherwise paid in accordance with, the terms and conditions of the
Credit Agreement, the other Loan Documents and applicable laws. All
noncash dividends and all dividends 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
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 any
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 Collateral Agent and shall be
forthwith delivered to the 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 any Pledgor to dividends that such Pledgor is authorized
to receive pursuant to paragraph (a)(iii) above shall cease, and all such rights
shall thereupon become vested in the Collateral Agent, which shall have the sole
and exclusive right and authority to receive and retain such dividends. All
dividends received by the Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the 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 Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 7. After all
Events of Default have been cured or waived, the Collateral Agent shall, within
five (5) Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor all cash dividends (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 any 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 Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers; provided
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that, the Collateral Agent shall have the right from time to time following and
during the continuance of an Event of Default to permit the Pledgors to exercise
such rights and such permission shall be deemed to have been granted absent
notice to the contrary to the Pledgors from the 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 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 Collateral Agent shall deem appropriate. The 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 Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of any Pledgor, and, to
the extent permitted by applicable law, the Pledgors hereby waive all rights of
redemption, stay, valuation and appraisal any 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 Collateral Agent shall give a Pledgor ten (10) days' prior
written notice (which each 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 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 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 Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In 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 Collateral Agent until the sale price is paid in
full by the purchaser or purchasers thereof, but the 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 any 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 any 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 any
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
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
Collateral Agent shall have entered into such an agreement all Events of Default
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shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose upon the Collateral
and to sell 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 Collateral Agent as provided in the Intercreditor
Agreement.
The Collateral Agent shall have absolute discretion as to the
time of application of any such proceeds, moneys or balances in accordance with
this Agreement. Upon any sale of the Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the 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 Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest provided that the 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 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 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 Collateral Agent to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by the Collateral Agent,
or to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
therefor any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Pledgor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct.
-8-
SECTION 9. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
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 Collateral Agent hereunder
and of the other Secured Parties under the other Loan 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 Loan Document or
consent to any departure by any 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 any 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 Collateral Agent (as directed by the Requisite Obligees under the
Intercreditor Agreement) and the Pledgor or Pledgors with respect to which such
waiver, amendment or modification is to apply.
SECTION 10. Securities Act, etc. In view of the position of the
Pledgors 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. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged 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 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. Each Pledgor recognizes that in light of such restrictions and
limitations the 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. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
or not a registration statement for the purpose of registering such Pledged
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. Each 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
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the 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 existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Collateral Agent sells.
-9-
SECTION 11. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the 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 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 Collateral Agent to permit the public sale
of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and
hold harmless the 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 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
Collateral Agent or any other Secured Party expressly for use therein. Each
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
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Each Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 11. Each 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 Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, any other Loan Document, any agreement with respect to any of the
Obligations or any other agreement or instrument relating to any of the
foregoing, (b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or waiver
of or any consent to any departure from the Credit Agreement, any other Loan
Document or any other agreement or instrument 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, any Pledgor in
respect of the Obligations or in respect of this Agreement (other than the
indefeasible payment in full of all the Obligations).
SECTION 13. Termination or Release. (a) This Agreement and the security
interest shall terminate pursuant to an in accordance with the terms of
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.
(a)In connection with any release of Collateral, release of a Pledgor
party to this Agreement or terminations of this Agreement pursuant to and in
-10-
accordance with the terms of the Intercreditor Agreement, the Collateral Agent
shall execute and deliver to the applicable Pledgor, at such Pledgor's expense,
all UCC termination statements and other similar documents that such Pledgor
shall reasonably request to evidence such termination or release. Any execution
and delivery of such UCC termination statements or other documents pursuant to
this Section 13 shall be without recourse to or warranty by the 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. All
communications and notices hereunder to any Pledgor that is a Domestic
Subsidiary shall be given to it at the address for notices set forth on Schedule
I, with a copy to the Borrowers.
SECTION 15. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the 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 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 any 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 any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of such Pledgor, the Collateral Agent and the
other 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 Loan Documents.
This Agreement shall be construed as a separate agreement with respect to each
Pledgor and may be amended, modified, supplemented, waived or released with
respect to any 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 any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Collateral Agent and the other 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, regardless of any investigation made
by the 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
-11-
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) Each
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 Loan 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 Collateral Agent or any other Secured Party may otherwise have to bring any
action or proceeding relating to this Agreement or the other Loan Documents
against any Pledgor or its properties in the courts of any jurisdiction.
(b)Each 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 Loan 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.
-12-
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. Additional Pledgors. Pursuant to Section 5.11 of the Credit
Agreement, each Domestic Subsidiary of Crown Holdings that was not in existence
or not a Domestic Subsidiary on the date of the Credit Agreement is required to,
and Crown Holdings shall cause such Domestic Subsidiary to, enter into this
Agreement as a Pledgor upon becoming a Domestic Subsidiary. Upon execution and
delivery by the Collateral Agent and a Subsidiary of an instrument in the form
of Annex 1 hereto, such Subsidiary shall become a Pledgor hereunder with the
same force and effect as if originally named as a Pledgor herein. The execution
and delivery of such instrument shall not require the consent of any Pledgor
hereunder. The rights and obligations of each Pledgor hereunder shall remain in
full force and effect notwithstanding the addition of any new Pledgor as a party
to this Agreement.
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, each Pledgor authorizes the 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 Collateral Agent reasonably determines appropriate to perfect the security
interests of the 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 but not
defined shall have the meanings assigned to such terms in the Credit Agreement.
For the purposes of this Agreement, the following terms shall have the following
meaning:
"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 interest is in effect on the date
hereof.
"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.
"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
-13-
indenture, agreement or instrument governing or evidencing any Public Debt as
such indentures, agreements or instruments are in effect on the date hereof.
"Secured Parties" shall mean, collectively, each of (a) the
Collateral Agent (for its benefit and for the benefit of the Lenders); (b) the
Administrative Agent, (c) the U.K Administrative Agent, (d) the Syndication
Agent, (e) the Joint Lead Arrangers, (f) the Documentation Agent, (g) the
Lenders, (h) 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 (i) 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.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-14-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CROWN HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL AMERICAS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL COMPANY (PA), INC.
By: /s/ Xxxx X. Xxxxxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
Notice Address:
CROWN FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Notice Address:
FOREIGN MANUFACTURERS FINANCE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
NATIONWIDE RECYCLERS' INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN BEVERAGE PACKAGING, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CONSULTANTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL TECHNOLOGIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN FINANCIAL MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL COMPANY (USA), INC.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President, Chief Financial Officer
and Treasurer
Notice Address:
CROWN OVERSEAS INVESTMENTS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
HOCKING VALLEY LEASING COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
XXXXXX-AMS (USA), INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
EYELET, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
EYELET SPECIALTY CO., INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
XXXXXX PLASTIK, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK DE PUERTO RICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CENTRAL STATES CAN CO. OF PUERTO RICO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN CORK & SEAL COMPANY (DE), LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN NEW DELAWARE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CROWN HOLDINGS (PA), LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Notice Address:
CITICORP NORTH AMERICA, INC.
AS COLLATERAL AGENT,
By: /s/ Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Notice Address:
Schedule I to the
Bank Pledge Agreement
------------------------------------------------------------ ---------------------------------------------------------
Name Address
---- -------
------------------------------------------------------------ ---------------------------------------------------------
------------------------------------------------------------ ---------------------------------------------------------
Crown Cork & Seal Company (PA), Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Financial Corporation Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Foreign Manufacturers Finance Corporation 000 X. Xxxxxx Xxxxxx Xxxxx 000, Xxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Nationwide Recyclers' Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Beverage Packaging, Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Consultants, Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Cork & Seal Technologies Corporation 00000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx, 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Financial Management, Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Cork & Seal Company (USA), Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Overseas Investments Corporation 000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Hocking Valley Leasing Company Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxx-AMS (USA) Inc. 0000 Xxxxxxxxxx Xxxxxx., Xxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Eyelet Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Eyelet Specialty Co., Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Xxxxxx Plastik, Inc. 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxxxxxx, XX 00000-0000
------------------------------------------------------------ ---------------------------------------------------------
Crown Cork de Puerto Rico, Inc. Km 12 Hm6 65th Infantry Avenue, P. O. Xxx 000,
Xxxxxxxx, Xxxxxx Xxxx 00000
------------------------------------------------------------ ---------------------------------------------------------
Central States Can Co. of Puerto Rico, Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Cork & Seal Company (DE), LLC 000 X. Xxxxxx Xxxxxx., Xxxxx 000, Xxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown New Delaware Holdings, Inc. Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Crown Holdings (PA), LLC Xxx Xxxxx Xxx, Xxxxxxxxxxxx, XX 00000
------------------------------------------------------------ ---------------------------------------------------------
Schedule II to the
Bank Pledge Agreement
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Issuer Number of Certificate Registered Owner Number and Class of Percentage of
Shares/Type of Shares/Interest
Interest Pledged
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork & Seal 1 Crown Cork & Seal 1 unit 100%
Company (DE), LLC Company, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork & Seal 1 Crown Cork & Seal 100 shares 100%
Americas, Inc. Company, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown International 1 Crown Cork & Seal 100 shares 100%
Holdings, Inc. Company, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Overseas 1 Crown International 100 shares 100%
Investments Corporation Holdings, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Central States Can Co. 3 Crown Cork & Seal 500 shares 100%
of Puerto Rico, Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Beverage 7 Crown Cork & Seal 1,000 shares 100%
Packaging, Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Financial 3 Crown Cork & Seal 100 shares 100%
Corporation Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Financial 2 Crown Cork & Seal 100 shares 100%
Management, Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Consultants, Inc. 2 Crown Cork & Seal 100 shares 100%
Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork & Seal 3 Crown Cork & Seal 100 shares 100%
Company (PA), Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Foreign Manufacturers 26 Crown Cork & Seal 1,000 shares 100%
Finance Corporation Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Hocking Valley Leasing 3 Crown Cork & Seal 1,000 shares 100%
Company Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Issuer Number of Certificate Registered Owner Number and Class of Percentage of
Shares/Type of Shares/Interest
Interest Pledged
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork & Seal 2 Crown Cork & Seal 100 shares 100%
Company (USA), Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Nationwide Recyclers' 4 Crown Cork & Seal 1 share 100%
Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Xxxxxx Plastik, Inc. 15 Crown Cork & Seal 1,000 shares 100%
Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork & Seal 2 Crown Cork & Seal 100 shares 100%
Technologies Corporation Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Xxxx xx Xxxxxx 0 Xxxxx Xxxx & Seal 100 shares 100%
Rico, Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Xxxxxx-AMS (USA), Inc. 10 Crown Cork & Seal 12 shares 100%
Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown New Delaware 1 Crown Cork & Seal 100 shares 100%
Holdings, Inc. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Eyelet, Inc. X00 Xxxxxx-XXX (XXX), Inc. 324,000 shares 100%
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Eyelet Specialty Co., 4 Eyelet, Inc. 715.45 shares 100%
Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Holdings (PA), LLC 1 Crown Cork & Seal 1 unit 100%
Company, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork de Argentina N/A Crown Cork & Seal 149,682 shares 65%
S.A. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Aluplata S.A. N/A Crown Cork & Seal 10,261,219 shares 65%
(Argentina) Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Brazil Holdings N/A Crown Cork & Seal 10,068,708 shares 65%
Ltda Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Xxxxxx-AMS (Canada), C-6 Xxxxxx-AMS (USA), Inc. 65 shares 65%
Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Issuer Number of Certificate Registered Owner Number and Class of Percentage of
Shares/Type of Shares/Interest
Interest Pledged
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Xxxxxx Plastik Canada, C-2 Xxxxxx Plastik, Inc 491 common 65%
Inc.
P-2 799 preferred
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Inversiones Litometal Crown Cork & Seal 194,999,791 shares 65%
S.A. (Colombia) Company, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork Centro N/A Crown Cork & Seal 38,875,000 shares 65%
Americana, S.A. (Costa Americas, Inc.
Rica)
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown European Holdings Crown International 4.66%
SA (France) Holdings, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Cork de N/A Crown Cork & Seal 1,430 shares 65%
Guatemala, S.A. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Aerosales Y Latas de N/A Crown Cork & Seal 390 shares 65%
Guatemala, S.A. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Constar Holding de N/A Crown Cork & Seal 6500 shares 65%
Mexico, S.A. de C.V. Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Xxxxxx Xxxxxxx xx 0 Xxxxxx Xxxxxxx, Inc. 1,711,020 shares 65%
Mexico S.A. de C.V.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Crown Developpement SNC N/A Crown International 64,160,088 shares 65%
Holdings, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Copaq Trading S.A. N/A Crown Cork & Seal 33 shares 65%
(Uruguay) Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Shorelink Ltd. N/A Crown Cork & Seal 1.3 shares 65%
Americas, Inc.
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Annex I to the
Bank Pledge Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the BANK PLEDGE
AGREEMENT (the "Bank Pledge Agreement") dated as of February 26, 2003, among
Crown Holdings Inc, CROWN CORK & SEAL COMPANY, INC., a Pennsylvania corporation
( "CCSC"), CROWN CORK & SEAL AMERICAS, INC., a Delaware corporation ("Crown
Usco"), CROWN INTERNATIONAL, INC., a Delaware corporation ("Crown
International"), each Domestic Subsidiary listed on Schedule I thereto
(collectively, together with each Domestic Subsidiary that becomes a party
thereto pursuant to Section 23 of the Bank Pledge Agreement, the "Subsidiary
Guarantors" and, together with Crown Holdings, Crown Usco and CCSC, the
"Pledgors") and CITICORP NORTH AMERICA, INC. ("Citi/SSB"), as collateral agent
(in such capacity, and together with any successors in such capacity, the
"Collateral Agent") for the Secured Parties (as defined in the Bank Pledge
Agreement).
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.
B. The Pledgors have entered into the Bank Pledge Agreement in order to
induce the Lenders to make Loans. Pursuant to Section 5.11 of the Credit
Agreement, each Domestic Subsidiary of Crown Holdings that was not in existence
or not a Domestic Subsidiary on the date of the Credit Agreement is required to
enter into the Bank Pledge Agreement as a Pledgor. Section 23 of the Bank Pledge
Agreement provides that such Subsidiaries may become Pledgors under the Bank
Pledge Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Subsidiary (the "New Pledgor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Pledgor under the Bank Pledge Agreement.
Accordingly, the Collateral Agent and the New Pledgor agree as
follows:
SECTION 1. In accordance with Section 23 of the Bank Pledge Agreement,
the New Pledgor by its signature below becomes a Pledgor under the Bank Pledge
Agreement with the same force and effect as if originally named therein as a
Pledgor and the New Pledgor hereby agrees (a) to all the terms and provisions of
the Bank Pledge Agreement applicable to it as a Pledgor thereunder and (b)
represents and warrants that the representations and warranties made by it as a
Pledgor thereunder are true and correct on and as of the date hereof. In
furtherance of the foregoing, the New Pledgor, as security for the payment and
performance in full of the Obligations (as defined in the Bank Pledge
Agreement), does hereby create and grant to the Collateral Agent, its successors
and assigns, for the benefit of the Secured Parties, their successors and
assigns, a security interest in and lien on all of the New Pledgor's right,
title and interest in and to the Collateral (as defined in the Bank Pledge
Agreement) of the New Pledgor. Each reference to a "Pledgor" in the Bank Pledge
Agreement shall be deemed to include the New Pledgor. The Bank Pledge Agreement
is hereby incorporated herein by reference.
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto and different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities (and such Schedule I shall hereby be deemed to modify and
amend Schedule II annexed to the Bank Pledge Agreement).
SECTION 5. Except as expressly supplemented hereby, the Bank Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Bank Pledge Agreement 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 hereto shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Bank Pledge Agreement. All
communications and notices hereunder to the New Pledgor shall be given to it at
the address set forth under its signature hereto.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
-2-
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent
have duly executed this Supplement to the Bank Pledge Agreement as of the day
and year first above written.
[Name of New Pledgor],
By: __________________________________________
Name:
Title:
Address:
CITICORP NORTH AMERICA, INC., as
Collateral Agent,
By: __________________________________________
Name:
Title:
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
