EXECUTION COPY
U.S. INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
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This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (as amended, amended
and restated or otherwise modified from time to time in accordance with the
terms hereof, herein called this "Agreement") is dated as of February 26, 2003
among (i) CITICORP NORTH AMERICA, INC., as administrative agent (in such
capacity, together with its successors and assigns, the "Administrative Agent")
for the Term B Dollar Lenders and Revolving Dollar Lenders from time to time
party to the Credit Agreement (as defined below), (ii) CITIBANK INTERNATIONAL
PLC, as U.K. administrative agent (in such capacity, together with its
successors and assigns, the "U.K. Administrative Agent" and together with the
Administrative Agent, the "Bank Agents") for the Term B Euro Lenders and the
Revolving Euro Lenders from time to time party to the Credit Agreement, (iii)
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as trustee (in such capacity,
together with its successors and assigns, the "Second Priority Notes Trustee")
for the holders of Second Priority Notes (as defined below) issued under the
Second Priority Notes Indenture (as defined below), (iv) XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, as trustee (in such capacity, together with its
successors and assigns, the "Third Priority Notes Trustee") for the holders of
Third Priority Notes (as defined below) issued under the Third Priority Notes
Indenture (as defined below), (v) CITICORP NORTH AMERICA, INC., as U.S.
Collateral Agent (as defined below), (vi) CROWN HOLDINGS, INC. ("Crown
Holdings"), (vii) CROWN CORK & SEAL AMERICAS, INC. ("Crown Usco"), (viii) CROWN
CORK & SEAL COMPANY, INC. ("CCSC"), (ix) CROWN INTERNATIONAL HOLDINGS, INC.
("Crown International"), (x) each of the U.S. subsidiaries of Crown Holdings
listed on Schedule 1 hereto, and (xi) the other persons who may become parties
to this Agreement from time to time pursuant to and in accordance with Section 8
of this Agreement.
R E C I T A L S
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1. On the date hereof, Crown European Holdings SA ("Crown Euroco"), an
indirect French subsidiary of CCSC, is issuing $1.085 billion in aggregate
principal amount of Second Priority Dollar Notes and (euro)285 million in
aggregate principal amount of Second Priority Euro Notes, in each case under an
Indenture dated as of the date hereof among Crown Euroco, the guarantors named
therein and the Second Priority Notes Trustee (as amended, amended and restated,
supplemented, refinanced, replaced or otherwise modified from time to time as
permitted by the Credit Agreement, the "Second Priority Notes Indenture").
2. On the date hereof, Crown Euroco is issuing $725 million in
aggregate principal amount of Third Priority Notes under an Indenture dated as
of the date hereof between Crown Euroco, the guarantors named therein and the
Third Priority Notes Trustee (as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified
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from time to time as permitted by the Credit Agreement, the "Third Priority
Notes Indenture").
3. On the date hereof, Crown Usco, Crown Holdings, Crown International,
CCSC and Crown Euroco and certain subsidiary borrowers have entered into a
senior secured credit agreement dated as of the date hereof (as amended, amended
and restated, supplemented, refinanced, replaced 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 to the extent
permitted by the Second Priority Notes Indenture and the Third Priority Notes
Indenture 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 Bank
Agents' acknowledgment of the termination of the predecessor Credit Agreement).
4. On the date hereof, Crown Holdings, Crown International, CCSC, Crown
Usco and certain U.S. subsidiaries of each of Crown Usco and CCSC and Crown
Holdings set forth on Schedule 1 hereto (collectively, and together with any
other subsidiaries which are required by one or more Financing Documents to
become "U.S. Pledgors," the "U.S. Pledgors") will execute and deliver to the
U.S. Collateral Agent, the U.S. Shared Pledge Agreement, which secures all of
the Obligations under the Financing Documents (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "U.S. Shared Pledge
Agreement") in the form attached to this Agreement as Annex 1.
5. On the date hereof, Crown Holdings, Crown International, CCSC, Crown
Usco and the U.S. Pledgors will execute and deliver to the U.S. Collateral Agent
the U.S. Bank Pledge Agreement, which shall secure the Obligations under First
Priority Indebtedness only (as amended, amended and restated, supplemented or
otherwise modified from time to time, the "U.S. Bank Pledge Agreement" and
together with the U.S. Shared Pledge Agreement, the "U.S. Pledge Agreements") in
the form attached to this Agreement as Annex 2.
6. On the date hereof, the U.S. Pledgors will execute and deliver to
the U.S. Collateral Agent a U.S. Security Agreement (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "U.S.
Security Agreement") in the form attached to this Agreement as Annex 3.
7. On or after the date hereof, the Crown Usco will execute and deliver
to the U.S. Collateral Agent the U.S. Retained Collateral Account Agreement,
which shall secure the Obligations under First Priority Indebtedness only (as
amended, amended and restated, supplemented or otherwise modified from time to
time the "U.S. Retained Collateral Account Agreement") in the form attached to
this Agreement as Annex 4.
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8. On the date hereof, certain of the U.S. Pledgors will execute and
deliver to the U.S. Collateral Agent the mortgages identified on Schedule 2
hereto (the "Initial Mortgages") and shall from time to time pursuant to the
terms of one or more Financing Documents (as defined below) execute and deliver
additional mortgages as required by such Financing Documents (the "Additional
Mortgages"), in each case encumbering real property interests of the U.S.
Pledgors (the Initial Mortgages and the Additional Mortgages, in each case as
amended, amended and restated, supplemented or otherwise modified from time to
time, are referred to herein as the "Mortgages"). The U.S. Pledge Agreements,
the U.S. Security Agreement, the U.S. Retained Collateral Account Agreement, the
Mortgages and each other security agreement or other instrument or document
(including, without limitation, any Additional Mortgages) executed and delivered
pursuant to one or more Financing Documents encumbering U.S. assets of any U.S.
Pledgor (including the Additional Bank Collateral (as defined below)) are
collectively referred to herein as the "U.S. Security Documents." All collateral
from time to time pledged or subject to or purported to be pledged or subject to
the Lien of the U.S. Security Documents (whether or not such Lien is determined
to be unperfected or subject to avoidance), including any Additional Bank
Collateral, is collectively referred to herein as the "U.S. Collateral".
9. It is understood and acknowledged that only the First Priority
Indebtedness will be secured by the Additional Bank Collateral (as defined
below).
10. It is contemplated that, from time to time, to the extent permitted
by the Credit Agreement, the Second Priority Notes Indenture and the Third
Priority Notes Indenture, Crown Euroco may issue certain Additional Second
Priority Indebtedness (as defined below) (any indenture, debenture, note,
guaranty, loan agreement, credit agreement, purchase agreement or other document
executed by Crown Euroco or any other U.S. Pledgor in connection with the
issuance of any such Additional Second Priority Indebtedness is referred to
herein as an "Additional Second Priority Indebtedness Document" individually and
the "Additional Second Priority Indebtedness Documents" collectively and any
trustee or like representative of the holders of any Additional Second Priority
Indebtedness is referred to herein as an "Additional Second Priority
Indebtedness Representative"); which Additional Second Priority Indebtedness
Documents will be secured by the U.S. Collateral pursuant to the U.S. Security
Documents and have the priority set forth herein; provided that for any holder
of any Additional Second Priority Indebtedness to receive the benefit of such
security it shall cause its Additional Second Priority Indebtedness
Representative to execute and deliver to the U.S. Collateral Agent an
acknowledgment to this Agreement (in the form attached hereto) agreeing to be
bound by the terms hereof.
11. It is contemplated that, from time to time, to the extent permitted
by the Credit Agreement, the Second Priority Notes Indenture and the Third
Priority Notes Indenture, Crown Euroco may issue certain Additional Third
Priority Indebtedness (as defined below) (any indenture, debenture, note,
guaranty, loan agreement, credit agreement, purchase
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agreement or other document executed by Crown Euroco or any U.S. Pledgor in
connection with the issuance of any such Additional Third Priority Indebtedness
is referred to herein as a "Additional Third Priority Indebtedness Document"
individually and the "Additional Third Priority Indebtedness Documents"
collectively and any trustee or like representative of the holders of any
Additional Third Priority Indebtedness is referred to herein as an "Additional
Third Priority Indebtedness Representative"); which Additional Third Priority
Indebtedness Documents will be secured, by the U.S. Collateral pursuant to the
U.S. Security Documents and have the priority set forth herein; provided that
for any holder of any Additional Third Priority Indebtedness to receive the
benefit of such security, it shall cause its Additional Third Priority
Indebtedness Representative to execute and deliver to the U.S. Collateral Agent
an acknowledgment to this Agreement (in the form attached hereto) agreeing to be
bound by the terms hereof.
12. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown Holdings or any of its subsidiaries may from time to time enter
into one or more Bank Related Hedging Agreements (as defined below) with any
counterparty that was the Bank Agents 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 Crown Holdings or any of its 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 the U.S. Collateral pursuant
to the U.S. Security Documents; provided that for any Bank Related Hedging
Exchanger to receive the benefit of such security, it shall execute and deliver
to the U.S. Collateral Agent an acknowledgment to this Agreement (in the form
attached hereto) agreeing to be bound by the terms hereof at any time prior to
the payment in full of the First Priority Indebtedness.
13. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown Holdings 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 Bank Agents 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 Crown Holdings
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 (all such obligations being the "Bank Related Cash Management
Obligations"), be secured by the U.S. Collateral pursuant to the U.S. Security
Documents; provided that for any Bank Related Cash Management Exchanger to
receive the benefit of such security, it shall execute and deliver to the U.S.
Collateral Agent an acknowledgment to this Agreement (in the form attached
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hereto) agreeing to be bound by the terms hereof at any time prior to the
payment in full of the First Priority Indebtedness.
14. (a) The Second Priority Notes Trustee (for its benefit and for the
benefit of the respective holders of the Second Priority Notes), the Bank Agents
(for their benefit and for the benefit of the Lenders and other agents under the
Credit Agreement) and the Third Priority Notes Trustee (for its benefit and for
the benefit of the holders of the Third Priority Notes), (b) and in the event
any Bank Related Hedging Obligations are to be secured by the U.S. Security
Documents, each Bank Related Hedging Exchanger party to any Bank Related Hedging
Agreement, (c) and in the event any Bank Related Cash Management Obligations are
to be secured by the U.S. Security Documents, each Bank Related Cash Management
Exchanger party to any Bank Related Cash Management Agreement, (d) and in the
event any obligations in respect of any Additional Second Priority Indebtedness
are to be secured by the U.S. Security Documents, 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) and (e) and in the event any
obligations in respect of any Additional Third Priority Indebtedness are to be
secured by the U.S. Security Documents, 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 parties described in clauses (a)
through (e) of this Recital, collectively, the "U.S. Secured Parties") desire to
set forth (i) certain additional provisions regarding the appointment, duties
and responsibilities of the U.S. Collateral Agent and to set forth certain other
provisions concerning the obligations of the U.S. Pledgors to the U.S. Secured
Parties under the agreements referred to in the foregoing recitals and (ii)
their agreement as to decisions relating to the exercise of remedies under the
U.S. Security Documents and certain limitations on the exercise of such
remedies.
A G R E E M E N T
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NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
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The following capitalized terms used herein and not otherwise defined
herein shall have the definitions set forth below. Terms not defined herein
shall have the meanings ascribed to them in the Credit Agreement.
"Additional Bank Collateral" means the Additional U.S. Stock Collateral
and the Additional Cash Collateral.
"Additional Cash Collateral" means the cash deposited in the collateral
account under the U.S. Retained Collateral Account Agreement pledged in favor of
the U.S.
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Collateral Agent for the benefit of the Lenders under the Credit
Agreement and any Bank Related Hedging Exchanger and Bank Related Cash
Management Exchanger.
"Additional Second Priority Indebtedness" means unsubordinated
indebtedness issued or incurred on or after the date hereof and not owed to
Crown Holdings or any of its subsidiaries, to the extent permitted to be
incurred by the Credit Agreement, the Second Priority Notes Indenture and the
Third Priority Notes Indenture, which indebtedness is secured by a second
priority Lien that is subject and subordinated to the Liens securing the First
Priority Indebtedness in the manner described herein on the U.S. Collateral as
contemplated by the U.S. Security Documents.
"Additional Second Priority Indebtedness Documents" has the meaning
given to such term in the Recitals.
"Additional Third Priority Indebtedness" means unsubordinated
indebtedness issued or incurred on or after the date hereof and not owed to
Crown Holdings or any of its subsidiaries, to the extent permitted to be
incurred by the Credit Agreement, the Second Priority Notes Indenture and the
Third Priority Notes Indenture, which indebtedness is secured by a third
priority Lien that is subject and subordinated to the Liens securing the First
Priority Indebtedness and Second Priority Indebtedness in the manner described
herein on the U.S. Collateral as contemplated by the U.S. Security Documents.
"Additional Third Priority Indebtedness Documents" has the meaning
given to such term in the Recitals.
"Additional U.S. Stock Collateral" means the capital stock of each U.S.
subsidiary of Crown Holdings (other than CCSC) and 65% of the capital stock of
each first tier non-U.S. subsidiary of any U.S. subsidiary of Crown Holdings
pledged to the U.S. Collateral Agent for the benefit of the Lenders under the
Credit Agreement and any Bank Related Hedging Exchanger and Bank Related Cash
Management Exchanger.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person.
"Bank Related Cash Management Agreements" means agreements of Crown
Holdings or any of its subsidiaries arising from treasury, depository and cash
management services provided by one or more Persons that was the Bank Agents or
a Lender or an Affiliate thereof or any other Person permitted under the Credit
Agreement at the time that such Bank Related Cash Management Agreement was
entered into.
"Bank Related Debt" means, collectively, the Bank Related Cash
Management Obligations and the Bank Related Hedging Obligations.
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"Bank Related Debt Agreements" means, collectively, the Bank Related
Cash Management Agreements and the Bank Related Hedging Agreements.
"Bank Related Hedging Agreements" means, collectively, each Hedging
Agreement of Crown Holdings or any of its subsidiaries entered into with any
counterparty that was the Bank Agents or a Lender or an Affiliate thereof or any
other Person permitted under the Credit Agreement at the time such Hedging
Agreement was entered into.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state or non-U.S. law or statute for the supervision, administration
or relief of debtors, including, without limitation, bankruptcy or insolvency
laws.
"Credit Documents" means the Credit Agreement, each guaranty of the
Obligations thereunder by a U.S. Pledgor and any other document executed by
Crown Holdings or any of its subsidiaries in connection with the Credit
Agreement, in each case, as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to time.
"Crown Holdings" means Crown Holdings, Inc., a Pennsylvania
corporation.
"Euro Intercreditor and Collateral Agency Agreement" means the Euro
Intercreditor and Collateral Agency Agreement dated as of February 26, 2003
among Citicorp Trustee Company Limited, as Euro Collateral Agent, the U.K.
Administrative Agent, the Second Priority Notes Trustee and the Third Priority
Notes Trustee and the other persons that become parties thereto after the date
thereof.
"Existing Public Debt" means each of the following to the extent
outstanding on the date hereof: (i) $200.0 million 6 3/4% Notes due 2003 of CCSC
issued under the 0000 Xxxxxxxxx; (ii) $300.0 million 8 3/8% Notes due 2005 of
CCSC issued under the 0000 Xxxxxxxxx; (iii) $200.0 million 8% Debentures due
2023 of CCSC issued under the 0000 Xxxxxxxxx; (iv) $350.0 million 7 3/8%
Debentures due 2026 of CCSC issued under the 0000 Xxxxxxxxx; (v) $150.0 million
7 1/2% Debentures due 2096 of CCSC issued under the 0000 Xxxxxxxxx; (vi) $200.0
million 6 3/4% Notes due 2003 of Crown Cork & Seal Finance PLC issued under the
1996 Indenture; (vii) $300.0 million 7% Notes due 2006 of Crown Cork & Seal
Finance PLC issued under the 1996 Indenture; (viii) $200.0 million 6 3/4% Notes
due 2003 of Crown Cork & Seal Finance, S.A. issued under the 1996 Indenture;
(ix) (euro)300.0 million 6% Senior Notes due 2004 of Crown Finance S.A. issued
under the Fiscal and Paying Agency Agreement dated as of December 6, 1999 among
CCSC, Crown Finance S.A. and Citibank, N.A., as paying agent; and (x) $105.0
million 7.54% Notes due 2005 of CarnaudMetalbox Investments (USA), Inc. issued
under the Note Purchase Agreement dated as of May 4, 1993 among CarnaudMetalbox
and the noteholders party thereto, as amended.
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"Financing Documents" means, collectively, the Credit Documents, the
Second Priority Notes Documents, the Third Priority Notes Documents, the Bank
Hedging Agreements, the Bank Related Cash Management Agreements, the Additional
Second Priority Indebtedness Documents and the Additional Third Priority
Indebtedness Documents.
"First Priority Indebtedness" means (i) the Obligations of the Obligors
under the Credit Documents and (ii) the Obligations of the Obligors under the
Bank Related Debt Agreements.
"First Priority Indebtedness Documents" means, collectively, the Credit
Documents and the Bank Related Debt Agreements.
"Global Participation Agreement" means the Global Participation and
Proceeds Sharing Agreement dated as of February 26, 2003 among the Bank Agents,
the Second Priority Notes Trustee, the Third Priority Notes Trustee, the U.S.
Collateral Agent on behalf of the U.S. Secured Parties and the Euro Collateral
Agent (as defined in the Euro Intercreditor and Collateral Agency Agreement) on
behalf of the Euro Secured Parties (as defined in the Euro Intercreditor and
Collateral Agency Agreement) and the Sharing Agent named therein and the other
persons that become party thereto after the date hereof.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement
or similar agreement.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such asset or any filing of any financing statement under the
UCC as in effect in the applicable state or jurisdiction or any similar notice
or lien under any similar notice or recording statute of any governmental
authority, in each of the foregoing cases whether voluntary or imposed by law,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset, (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities and (d) any other agreement intended to create
any of the foregoing.
"1993 Indenture" means the Indenture dated as of April 1, 1993 between
CCSC and Bank One Trust Company, NA, as successor to Chemical Bank, as trustee.
"1995 Indenture" means the Indenture dated as of January 15, 1995
between CCSC and Bank One Trust Company, NA, as successor to Chemical Bank, as
trustee.
"1996 Indenture" means the Indenture dated as of December 17, 1996
among CCSC, Crown Cork & Seal Finance PLC, Crown Cork & Seal Finance, S.A. and
The Bank of New York, as trustee.
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"Obligations" shall mean, with respect to any of the Financing
Documents, any and all obligations, liabilities and indebtedness of every kind,
nature and description (whether or not constituting future advances or
otherwise) from time to time owing by, or on behalf of, any Obligor or any of
its subsidiaries under, or in connection with, such Financing Documents,
including principal, interest, charges, fees, premiums, indemnities and
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, evidenced by or arising under any of such Financing Documents
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of such Financing Documents, or after the
commencement of any case with respect to any Obligor or any of its subsidiaries
under the Bankruptcy Code (at the rate provided for in the relevant Financing
Documents) (and including, without limitation, any principal, interest, fees,
costs, expenses and other amounts, which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed or allowable
in whole or in part in any such case or similar proceeding), whether direct or
indirect, absolute or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and whether arising
directly or howsoever acquired.
"Obligors" means each of Crown Holdings, CCSC, Crown International,
Crown Usco, Crown Euroco, each subsidiary borrower, each of the U.S. Pledgors
and any other obligors under any Financing Documents.
"Principal Property" has the meaning given to such term under the
indentures, agreements and instruments governing the Existing Public Debt, as
such indentures, agreements and instruments are in effect on the date hereof.
"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 Existing Public Debt, as
such indenture, agreement or instrument is in effect on the date hereof.
"Second Priority Agents" means, collectively, the Second Priority Notes
Trustee and any Additional Second Priority Indebtedness Representative.
"Second Priority Dollar Notes" means the (i) $1.085 billion in
aggregate principal amount of 9 1/2% Second Priority Senior Secured Notes due
2011 of Crown Euroco issued on the date hereof and any exchange notes which are
issued in a registered exchange offer for such notes and (ii) any additional 9
1/2% Second Priority Senior Secured Notes due 2011 of Crown Euroco, to the
extent that the issuance of such notes is permitted by the Credit Agreement, the
Second Priority Notes Indenture and the Third Priority Notes Indenture, and
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any exchange notes which are issued in a registered exchange offer for such
notes, in each case issued under the Second Priority Notes Indenture.
"Second Priority Euro Notes" means the (i) (euro)285 million in
aggregate principal amount of 10 1/4% Second Priority Senior Secured Notes due
2011 of Crown Euroco issued on the date hereof and any exchange notes which are
issued in a registered exchange offer for such notes and (ii) any additional 10
1/4% Second Priority Senior Secured Notes due 2011, to the extent that the
issuance of such notes is permitted by the Credit Agreement, the Second Priority
Notes Indenture and the Third Priority Notes Indenture, and any exchange notes
which are issued in a registered exchange offer for such notes, in each case
issued under the Second Priority Notes Indenture.
"Second Priority Indebtedness" means (i) the Obligations of the
Obligors under the Second Priority Notes Documents and (ii) the Obligations of
the Obligors under any Additional Second Priority Indebtedness Documents.
"Second Priority Indebtedness Documents" means, collectively, the
Second Priority Notes Documents and the Additional Second Priority Indebtedness
Documents.
"Second Priority Notes" means, collectively, the Second Priority Dollar
Notes and the Second Priority Euro Notes.
"Second Priority Notes Documents" means the Second Priority Notes
Indenture, the Second Priority Notes, each guaranty of the Obligations
thereunder and any other document executed by Crown Holdings or any of its
subsidiaries in connection with the issuance of the Second Priority Notes, in
each case, as amended, amended and restated, supplemented, refinanced, replaced
or otherwise modified from time to time, as permitted by the Credit Agreement.
"Third Priority Agents" means, collectively, the Third Priority Notes
Trustee and any Additional Third Priority Indebtedness Representative.
"Third Priority Indebtedness" means (i) the Obligations the Obligors
under the Third Priority Notes Documents and (ii) the Obligations of the
Obligors under any Additional Third Priority Indebtedness Documents.
"Third Priority Indebtedness Documents" means, collectively, the Third
Priority Notes Documents and the Additional Third Priority Indebtedness
Documents.
"Third Priority Notes" means the (i) $725 million in aggregate
principal amount of 10 7/8% Third Priority Senior Secured Notes due 2013 of
Crown Euroco issued on the date hereof and any exchange notes which are issued
in a registered exchange offer for such notes and (ii) any additional 10 7/8%
Third Priority Senior Secured Notes due 2013 of
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Xxxxx Xxxxxx, to the extent that the issuance of such notes is permitted by the
Credit Agreement, the Second Priority Notes Indenture and the Third Priority
Notes Indenture, and any exchange notes which are issued in a registered
exchange offer for such notes, in each case issued under the Third Priority
Notes Indenture.
"Third Priority Notes Documents" means the Third Priority Notes
Indenture, the Third Priority Notes, each guaranty of the Obligations thereunder
and any other document executed by Crown Holdings or any of its subsidiaries in
connection with the issuance of the Third Priority Notes, in each case, as
amended, amended and restated, supplemented, refinanced, replaced or otherwise
modified from time to time, as permitted by the Credit Agreement.
Section 2. Appointment as U.S. Collateral Agent.
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The Bank Agents, the Second Priority Notes Trustee and the Third
Priority Notes Trustee each hereby irrevocably and unconditionally appoints, and
each Bank Related Hedging Exchanger, Bank Related Cash Management Exchanger,
Additional Second Priority Indebtedness Representative and Additional Third
Priority Indebtedness Representative signing an acknowledgment hereto, by such
signing, irrevocably and unconditionally appoints, Citicorp North America, Inc.
to serve as collateral agent and representative of each such U.S. Secured Party
under each of the U.S. Security Documents (in such capacity, together with its
successors in such capacity, the "U.S. Collateral Agent") and irrevocably and
unconditionally authorizes the U.S. Collateral Agent to act as agent for the
U.S. Secured Parties for the purpose of executing and delivering, on behalf of
all such U.S. Secured Parties, the U.S. Security Documents and the Global
Participation Agreement and any other documents or instruments related thereto
or necessary or, as determined by the U.S. Collateral Agent (acting on the
instructions of the Requisite Obligees), desirable to perfect the Liens granted
to the U.S. Collateral Agent thereunder and, subject to the provisions of this
Agreement, for the purpose of enforcing the U.S. Secured Parties' rights in
respect of the U.S. Collateral and the obligations of the U.S. Pledgors under
the U.S. Security Documents, and for the purpose of, or in connection with,
releasing the obligations of the U.S. Pledgors under the U.S. Security
Documents.
Without limiting the generality of the foregoing, the U.S. Collateral
Agent is further hereby appointed as agent for each of the U.S. Secured Parties
to hold the Liens on the U.S. Collateral granted pursuant to the U.S. Security
Documents with, subject to Section 3, sole authority to exercise remedies under
the U.S. Security Documents. The U.S. Collateral Agent is hereby authorized to
act as mortgagee under all Mortgages, beneficiary under all deeds of trust and
as U.S. Secured Party under the applicable U.S. Security Agreement and U.S.
Pledge Agreement and each other U.S. Security Document and to follow the
instructions provided to it under this Agreement.
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Section 3. Decisions Relating to Exercise of Remedies Vested in Requisite
Obligees.
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(a) The U.S. Collateral Agent may take such actions under the U.S.
Security Documents as it may, in its sole discretion, deem necessary or
appropriate under the circumstances. Subject to Section 3(f), the U.S.
Collateral Agent agrees to make such demands and give such notices under the
U.S. Security Documents as the Requisite Obligees may request, and to take such
action to amend or modify or enforce the U.S. Security Documents and to
foreclose upon, collect and dispose of the U.S. Collateral or any portion
thereof as may be directed by Requisite Obligees.
For purposes of this Agreement, "Requisite Obligees" means, for
purposes of directing the U.S. Collateral Agent with respect to any of the
foregoing actions to be taken pursuant to any of the U.S. Security Documents,
the Bank Agents; provided that if the Obligations under the Credit Documents and
Bank Related Debt have been indefeasibly paid in full in cash without any
refinancing thereof through the incurrence of indebtedness having a Lien on any
U.S. Collateral and the Credit Agreement and all letters of credit thereunder
and the Bank Related Debt Agreements have terminated, "Requisite Obligees" shall
mean (1) the Second Priority Notes Trustee until all Second Priority
Indebtedness shall have been indefeasibly paid in full without any refinancing
thereof through the incurrence of indebtedness having a Lien on any U.S.
Collateral and the Second Priority Indebtedness Documents have terminated and
(2) thereafter, the Third Priority Notes Trustee; provided, further, that for
purposes of directing the U.S. Collateral Agent with respect to Additional Bank
Collateral, Requisite Obligees shall mean the Bank Agents in all cases.
The U.S. Collateral Agent shall not be required to take any action that
it believes is contrary to law or to the terms of this Agreement or any of the
U.S. Security Documents or which it believes would subject it or any of its
officers, employees or directors to liability, and the U.S. Collateral Agent
shall not be required to take any action under this Agreement or any of the U.S.
Security Documents, unless and until the U.S. Collateral Agent shall receive
additional indemnities to its satisfaction from the U.S. Secured Parties (or the
holders represented thereby) against any and all losses, costs, expenses or
liabilities in connection therewith.
(b) Each U.S. Secured Party executing this Agreement or an
acknowledgment hereto agrees that (i) the U.S. Collateral Agent may act as the
Requisite Obligees may request (regardless of whether any U.S. Secured Party or
any holder represented thereby agrees, disagrees or abstains with respect to
such request), (ii) the U.S. Collateral Agent shall have no liability for acting
in accordance with such request (provided such action does not, on its face,
conflict with the express terms of this Agreement) and (iii) no U.S. Secured
Party or any holder represented thereby shall have any liability to any other
U.S. Secured Party or any holder represented thereby for any such request. The
U.S. Collateral Agent shall give prompt
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notice to all U.S. Secured Parties of actions taken pursuant to the instructions
of Requisite Obligees; provided, however, that the failure to give any such
notice shall not impair the right of the U.S. Collateral Agent to take any such
action or the validity or enforceability under this Agreement or the applicable
U.S. Security Document of the action so taken or create a cause of action
against the U.S. Collateral Agent.
(c) Each U.S. Secured Party agrees that unless and until such U.S.
Secured Party is entitled to give direction to the U.S. Collateral Agent
pursuant to Section 3(a) with respect to a U.S. Security Document, the only
right of such U.S. Secured Party under the U.S. Security Documents is for the
Obligations owing to such Secured Party to be secured by the U.S. Collateral,
and to receive a share of the Proceeds of such U.S. Collateral, if any, as and
when provided in the U.S. Security Documents and Section 4 and Section 5 hereof.
(d) Notwithstanding anything to the contrary set forth in any of the
Financing Documents or contained herein and irrespective of:
(i) the time, order or method of creation, attachment or perfection of
the respective security interests and/or Liens granted to the U.S. Collateral
Agent for the benefit of the U.S. Secured Parties in or on any or all of the
property or assets of the Obligors and their respective subsidiaries,
(ii) the time or order of filing or recording of financing statements
or other documents filed or recorded to perfect security interests in any U.S.
Collateral,
(iii) whether any U.S. Secured Party or any bailee or agent thereof
holds possession of any or all of the property or assets of any U.S. Pledgor,
(iv) the dating, execution or delivery of any agreement, document or
instrument granting any U.S. Secured Party security interests and/or Liens in or
on any or all of the property or assets of any U.S. Pledgor,
(v) the giving or failure to give notice of the acquisition or expected
acquisition of any purchase money or other security interest and
(vi) the rules for determining priority under the UCC or any other law
or rule governing the relative priorities of secured creditors,
(I) any security interest in any U.S. Collateral heretofore or hereafter granted
or purported to be granted to secure any Obligations in respect of First
Priority Indebtedness pursuant to any U.S. Security Document or otherwise has
and, except as provided in Section 3(i), shall have priority, to the extent of
any such unpaid Obligations under First Priority Indebtedness, over any security
interest in such U.S. Collateral granted to secure any Obligations in respect of
Second Priority Indebtedness and Third Priority Indebtedness, and any Lien or
security interest in the U.S. Collateral held by or for the benefit of the
holders of Second Priority Indebtedness and Third Priority Indebtedness shall be
in all respects and for all purposes junior to and subordinated to all Liens and
security interests in the U.S. Collateral held by or for the benefit of holders
of First Priority Indebtedness; and (II) any security interest in any U.S.
Collateral heretofore or hereafter granted to secure any Obligations in respect
of Second Priority Indebtedness pursuant to any U.S. Security Document or
otherwise has and, except as provided in Section 3(i), shall have priority, to
the extent of any such unpaid Obligations under Second Priority Indebtedness,
over any security interest in such U.S. Collateral granted to secure any
Obligations in respect of Third Priority Indebtedness, and any Lien or security
inter-
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est in the U.S. Collateral held by or for the benefit of the holders of Third
Priority Indebtedness shall be in all respects and for all purposes junior to
and subordinated to all Liens and security interests in the U.S. Collateral held
by or for the benefit of holders of Second Priority Indebtedness.
(e) The U.S. Collateral Agent may at any time request directions from
the Requisite Obligees with respect to the U.S. Security Documents as to any
course of action or other matter relating hereto or to any U.S. Security
Document. Except as set forth in Section 3(f) below, directions given by
Requisite Obligees to the U.S. Collateral Agent hereunder shall be binding on
all U.S. Secured Parties for all purposes.
(f) (i) Subject to the application of Proceeds (as defined below)
pursuant to Section 4, (A) the U.S. Collateral Agent may release the Lien of the
U.S. Security Documents against any portion or all of the U.S. Collateral, to
the extent approved by the Requisite Obligees and (B) the U.S. Collateral Agent
shall release the Lien of the U.S. Security Documents against all of the U.S.
Collateral and terminate the U.S. Security Documents after all First Priority
Indebtedness has been repaid in full and the First Priority Indebtedness
Documents have been terminated; provided, however, that (I) no such release
(other than (a) a release permitted by Section 3(f)(ii) and (b) a release in
connection with the foreclosure, sale or disposition of U.S. Collateral by the
U.S. Collateral Agent hereunder in connection with the enforcement of rights and
exercise of remedies in respect of such U.S. Collateral) of U.S. Collateral that
is not Additional Bank Collateral shall be effective against any Second Priority
Agent or any holder of Second Priority Indebtedness if any Second Priority Agent
or any holder of Second Priority Indebtedness shall have delivered a notice to
the U.S. Collateral Agent not later than one Business Day prior to the date of
release that a default or event of default shall have occurred and be continuing
under any Second Priority Indebtedness Document as of the time of such proposed
release, unless such Second Priority Agent consents to such release, and (II) no
such release (other than (a) a release permitted by Section 3(f)(ii) and (b) a
release in connection with the foreclosure, sale or disposition of U.S.
Collateral by the U.S. Collateral Agent hereunder in connection with the
enforcement of rights and exercise of remedies in respect of such U.S.
Collateral) shall be effective against any Third Priority Agent or any holder of
Third Priority Indebtedness if any Third Priority Agent or any holder of Third
Priority Indebtedness shall have delivered a notice to the U.S. Collateral Agent
not later
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than one Business Day prior to date of release that a default or event of
default shall have occurred and be continuing under any Third Priority
Indebtedness Document as of the time of such release, unless such Third Priority
Agent consents to such release.
(ii) Subject to the application of Proceeds pursuant to Section 4, upon
any sale or other transfer of any U.S. Collateral, or the sale or transfer of
Equity Interests of any U.S. Pledgor resulting in such U.S. Pledgor ceasing to
be a Subsidiary, in each case to any Person that is not a U.S. Pledgor or
Affiliate and such sale or transfer is not prohibited by, in the case of U.S.
Collateral that is not Additional Bank Collateral, the Financing Documents, and
in the case of Additional Bank Collateral, the Credit Agreement, the Lien of the
U.S. Security Documents on such U.S. Collateral, or the Lien of the U.S.
Security Documents on the U.S. Collateral owned by such U.S. Pledgor, as
applicable, shall be released without recourse or warranty; provided, that the
U.S. Collateral Agent may request, and shall be entitled to rely upon, an
officer's certificate of such U.S. Pledgor stating that such sale or transfer is
not prohibited by the Financing Documents or the Credit Agreement, as
applicable. In connection with such release, the U.S. Collateral Agent shall
execute and deliver to any U.S. Pledgor, at such U.S. Pledgor's expense, all
documents that such U.S. Pledgor shall reasonably request to evidence such
termination or release.
(iii) Notwithstanding anything to the contrary in this Section 3(f),
(x) any release of U.S. Collateral under the U.S. Security Documents shall be a
release of such U.S. Collateral with respect to each U.S. Secured Party and (y)
if any Lien in any U.S. Collateral (other than Additional Bank Collateral)
previously released pursuant to Section 3(f))(i) is subsequently granted to any
U.S. Secured Party, and such Lien does not otherwise comply with Section 4.11 of
the Second Priority Notes Indenture and Section 4.11 of the Third Priority Notes
Indenture, such Lien must be granted to all U.S. Secured Parties, subject to the
relative priorities set forth in this Agreement.
(g) Each U.S. Secured Party agrees that no U.S. Secured Party shall
have any right to, and agrees that it shall not, take any action whatsoever to
enforce any term or provision of any U.S. Security Document or to enforce any of
its rights in respect of the U.S. Collateral (whether arising under any
Financing Document, operation of law, statute or otherwise), it being understood
that all rights and remedies under the U.S. Security Documents shall be enforced
and executed exclusively by the U.S. Collateral Agent pursuant to this
Agreement. Without limiting any of the foregoing, each U.S. Secured Party
irrevocably and unconditionally agrees that so long as any of the Obligations in
respect of the Credit Documents and all Bank Related Debt Agreements have not
been indefeasibly paid in full in cash without any refinancing thereof through
the incurrence of indebtedness, in any case under the Bankruptcy Code with
respect to any Obligor or any of their subsidiaries, all other U.S. Secured
Parties (other than the Bank Agents) (i) shall not contest any request by the
Bank Agents or U.S. Collateral Agent for adequate protection or relief from the
automatic stay and (ii) shall waive any rights (A) to seek relief from the
automatic stay or to seek adequate pro-
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tection, (B) to object to any claim by a trustee under Section 506(c) of the
Bankruptcy Code to the extent that the Requisite Obligees have not objected to
such claim, (C) to object to any election or failure to elect by the holders of
Obligations under the Credit Documents under Section 1111(b) of the Bankruptcy
Code or (D) to object to a borrowing or grant of security interest or an
administrative claim by any U.S. Pledgor pursuant to Section 364 of the
Bankruptcy Code.
In the event of any dissolution, winding-up, liquidation or
reorganization of any Obligor or any of their subsidiaries (whether in
bankruptcy, insolvency, administration or receivership proceedings, voluntary or
involuntary, or upon a general assignment for the benefit of creditors or any
other marshaling of the assets of any Obligor or any of their subsidiaries or
any other similar remedy or otherwise) tending towards liquidation of the
business and assets of such Obligor or any of its subsidiaries, if any Second
Priority Agent or any Third Priority Agent does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the U.S. Collateral
Agent shall have the right (but not the obligation) to file and is hereby
authorized and empowered, and irrevocably appointed as attorney-in-fact, to file
an appropriate claim for and on behalf of the holders of such indebtedness. In
addition, in connection with any plan proposed by the Bank Agents that is
consistent with the terms of this Agreement, each Second Priority Agent and
Third Priority Agent agrees to vote its claim to approve such plan.
Each U.S. Secured Party agrees that (i) it will provide notices (such
notices to be provided in writing and contemporaneously with any notice provided
to any Obligor, to each other U.S. Secured Party and the U.S. Collateral Agent
with respect to the acceleration of its respective indebtedness; provided,
however, that the failure to give any such notice to the other U.S. Secured
Party shall not affect the effectiveness of any notice given to any Obligor or
the validity of this Agreement or create a cause of action against the party
failing to give such notice or create any claim or right on behalf of any third
party; (ii) the U.S. Secured Parties will not contest each other's security
interest in and/or Liens granted for the benefit of any or all of the U.S.
Secured Parties in or on any or all of the property or assets of any Obligor or
any of its subsidiaries (including, without limitation, in respect of the Liens
of the Bank Agents and Lenders in the Additional Bank Collateral) or contest the
validity of the documents governing their respective security interests and
Liens or assert a claim inconsistent with the terms of this Agreement; and (iii)
in a bankruptcy or insolvency proceeding, the Requisite Obligees may consent to
the use of cash collateral in their sole discretion.
Each U.S. Secured Party waives any and all rights to (i) require the
U.S. Collateral Agent to marshal any property or assets of the U.S. Pledgors or
to resort to any of the property or assets of the U.S. Pledgors in any
particular order or manner and (ii) require the U.S. Collateral Agent to enforce
any guaranty or any security interest or Lien to secure the
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payment of any or all Obligations as a condition precedent or concurrent to
taking any action against or with respect to the U.S. Collateral.
(h) It is understood and agreed that the Additional Bank Collateral
shall only secure Obligations under First Priority Indebtedness and is for the
benefit of the Bank Agents on behalf of the Lenders and any Bank Related Hedging
Exchanger and any Bank Related Cash Management Exchanger. Each U.S. Secured
Party (other than the Bank Agents on behalf of the Lenders and agents under the
Credit Agreement, any Bank Related Hedging Exchanger and any Bank Related Cash
Management Exchanger) acknowledges and agrees that it has no Lien on the
Additional Bank Collateral.
If any U.S. Collateral other than any pledge of capital stock pursuant
to the U.S. Shared Pledge Agreement constitutes a "security", as defined under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), then the
amount realizable with respect to any single such security upon any exercise of
remedies by the holders of Second Priority Indebtedness or Third Priority
Indebtedness shall be limited to the amount necessary such that the issuer of
such security shall not be required to prepare separate audited financial
statements under the applicable rules or regulations of the United States
Securities and Exchange Commission; provided, however, that this sentence shall
not limit the Obligations secured or amount realizable under First Priority
Indebtedness.
(i) Notwithstanding anything to the contrary in this Agreement or the
U.S. Security Documents, if any Existing Public Debt is required to be secured
by Principal Property or Restricted Securities (to the extent such Restricted
Securities constitute U.S. Collateral under the U.S. Security Documents) due to
the triggering of a negative pledge covenant in any indenture pursuant to which
such Existing Public Debt is issued, the First Priority Indebtedness, Second
Priority Indebtedness and Third Priority Indebtedness shall be secured equally
and ratably (except in the case of Additional Bank Collateral which shall secure
only First Priority Indebtedness) with such Existing Public Debt with respect to
the Lien of such Existing Public Debt on such Principal Property or Restricted
Securities to the extent such Restricted Securities constitute U.S. Collateral
under the U.S. Security Documents for so long as such Existing Public Debt is so
secured.
Section 4. Application of Proceeds.
---------- ------------------------
(a) Any and all amounts actually received by the U.S. Collateral Agent
in connection with the enforcement of the U.S. Security Documents, including the
proceeds of any collection, sale or other disposition of the U.S. Collateral or
any portion thereof (collectively, "Proceeds"), shall be applied promptly by the
U.S. Collateral Agent, subject to the terms of the Global Participation
Agreement, as follows:
First, to the payment of the costs and expenses of such sale,
collection or other realization, including reasonable compensation to
the U.S. Collateral Agent and its
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agents and counsel, and all expenses, liabilities and advances made or
incurred by the U.S. Collateral Agent in connection therewith and all
amounts for which U.S. Collateral Agent is entitled to indemnification
hereunder, and to the payment of all costs and expenses paid or
incurred by U.S. Collateral Agent in connection with the exercise of
any right or remedy hereunder;
Second, to the payment of the Obligations in respect of First
Priority Indebtedness (including any deposits into a collateral account
for outstanding letters of credit under the Credit Agreement, provided
that if such letters of credit expire without being fully drawn, then
at that time, such excess amounts shall be applied as provided in this
Section 4 to then outstanding Obligations in respect of First Priority
Indebtedness) for the ratable benefit of the holders thereof;
Third, only after indefeasible payment in full of all
Obligations in respect of First Priority Indebtedness and the First
Priority Indebtedness Documents have terminated and the letters of
credit under the Credit Agreement canceled, to the payment of
Obligations in respect of Second Priority Indebtedness for the ratable
benefit of the holders thereof;
Fourth, only after indefeasible payment in full of all
Obligations in respect of First Priority Indebtedness and Second
Priority Indebtedness and the First Priority Indebtedness Documents and
the Second Priority Indebtedness Documents have terminated, to the
payment of Obligations in respect of Third Priority Indebtedness for
the ratable benefit of the holders thereof; and
Fifth, after indefeasible payment in full of all Obligations
in respect of First Priority Indebtedness, Second Priority Indebtedness
and Third Priority Indebtedness, to the respective U.S. Pledgor of such
U.S. Collateral, or its successors or assigns, or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct, of any surplus then remaining from such
Proceeds;
provided, that if such U.S. Collateral is Additional Bank Collateral,
such Proceeds shall not be applied to the payment of Obligations in
respect of Second Priority Indebtedness or Third Priority Indebtedness.
Until Proceeds are so applied, the U.S. Collateral Agent shall hold
such Proceeds in its custody in accordance with its regular procedures for
handling deposited funds.
For the purposes of determining ratable amounts under this Section 4,
the U.S. Collateral Agent will use the Dollar Equivalent at the time of
determination of the First Priority Indebtedness, Second Priority Indebtedness
and Third Priority Indebtedness outstanding.
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(b) (i) Any Proceeds received by the U.S. Collateral Agent to be distributed
under Section 4(a) to payment of the Obligations in respect of First Priority
Indebtedness shall be applied so that each U.S. Secured Party with respect
thereto that is then secured by the U.S. Collateral giving rise to such Proceeds
shall receive payment of the same proportionate amount of all such Obligations,
(ii) any Proceeds received by the U.S. Collateral Agent to be distributed under
Section 4(a) to payment of the Obligations in respect of Second Priority
Indebtedness shall be applied so that each U.S. Secured Party with respect
thereto that is then secured by the U.S. Collateral giving rise to such Proceeds
shall receive payment of the same proportionate amount of all such Obligations
and (iii) any Proceeds received by the U.S. Collateral Agent to be distributed
under Section 4(a) to payment of the Obligations in respect of Third Priority
Indebtedness shall be applied so that each U.S. Secured Party with respect
thereto that is then secured by the U.S. Collateral giving rise to such Proceeds
shall receive payment of the same proportionate amount of all such Obligations.
For purposes of determining the proportionate amounts of all Obligations in
respect of First Priority Indebtedness when Proceeds are to be distributed under
this Section 4, the amount of the outstanding Obligations under the First
Priority Indebtedness Documents, respectively, shall be deemed to be the
principal (including the face amount of outstanding letters of credit) and
interest then due and payable under the First Priority Indebtedness plus any
other fees, indemnities and costs then due and payable under the First Priority
Indebtedness Documents (it being agreed that the amount of the outstanding Bank
Related Hedging Obligations and Bank Related Cash Management Obligations of any
Bank Related Hedging Exchanger or Bank Related Cash Management Exchanger shall
be deemed to be the amount of Crown Holding's or any of its subsidiaries'
obligations then due and payable (exclusive of expenses or similar liabilities
but including any early termination payments then due) under the applicable Bank
Related Hedging Agreements or Bank Related Cash Management Agreements). For
purposes of determining the proportionate amounts of all Obligations in respect
of Second Priority Indebtedness when Proceeds are to be distributed under this
Section 4, the amount of the outstanding Obligations in respect of the Second
Priority Indebtedness shall be deemed to be the principal and interest then due
and payable under the Second Priority Indebtedness Documents, plus any other
fees, indemnities and costs then due and payable under the Second Priority
Indebtedness Documents. For purposes of determining the proportionate amounts of
all Obligations in respect of Third Priority Indebtedness when Proceeds are to
be distributed under this Section 4, the amount of the outstanding Obligations
in respect of the Third Priority Indebtedness shall be deemed to be the
principal and interest then due and payable under the Third Priority
Indebtedness Documents, plus any other fees, indemnities and costs then due and
payable under the Third Priority Indebtedness Documents.
(c) Payments by the U.S. Collateral Agent on account of Proceeds received by
U.S. Collateral Agent in respect of the Obligations under the Credit Agreement
shall be made to the Bank Agents for distribution by the Bank Agents to the
Lenders and other U.S. Secured Parties under the Credit Agreement in accordance
with the Credit Agreement and as follows: (i) any payments in respect of Bank
Related Hedging Obligations and Bank Related
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Cash Management Obligations shall be made as directed by the Bank Related
Hedging Exchanger or Bank Related Cash Management Exchanger to which such Bank
Related Hedging Obligations or Bank Related Cash Management Obligations are
owed; and (ii) any payments in respect of loans or outstanding letters of credit
shall be paid to the Bank Agents for the benefit of the Lenders and other U.S.
Secured Parties under the Credit Agreement. All other payments on account of
Proceeds received by the U.S. Collateral Agent in respect of all other
Obligations in respect of Second Priority Indebtedness and Third Priority
Indebtedness shall be paid to the Second Priority Agents and the Third Priority
Agents, as applicable, on behalf of the holders of such indebtedness.
Section 5. Certain Provisions Regarding Second Priority Indebtedness and Third
Priority Indebtedness.
-------------------------------------------------------------------
(a) This Section 5 shall apply to Second Priority Indebtedness and
Third Priority Indebtedness in relation to First Priority Indebtedness at any
time that Obligations under First Priority Indebtedness are outstanding.
(b) In the event any Proceeds of U.S. Collateral are received by any
Second Priority Agent or any holder of Second Priority Indebtedness or any Third
Priority Agent or any holder of Third Priority Indebtedness other than as
expressly permitted by the terms of this Agreement, such Proceeds shall be
received by such Person in trust for the benefit of the Bank Agents and the
holders of First Priority Indebtedness and such Person shall promptly turn over
such proceeds to the U.S. Collateral Agent (in the same form as received, with
any necessary non-recourse endorsement), for application (in the case of cash)
to, or as U.S. Collateral (in the case of non-cash property or securities) for,
the payment or prepayment of the First Priority Indebtedness remaining unpaid to
the extent necessary to pay such First Priority Indebtedness in full in
accordance with its terms. In the event any Second Priority Agent or any holder
of Second Priority Indebtedness or any Third Priority Agent or any holder of
Third Priority Indebtedness fails to provide any endorsement, as contemplated by
the preceding sentences, the U.S. Collateral Agent, or any of its officers or
employees, is hereby irrevocably authorized to make the same (which
authorization, being coupled with an interest, is irrevocable).
(c) Each Second Priority Agent and each holder of Second Priority
Indebtedness and each Third Priority Agent and each holder of Third Priority
Indebtedness hereby waives all rights of subrogation to the claims of the First
Priority Agents and holders of First Priority Indebtedness against Crown
Holdings or any of its subsidiaries and waives all rights of recourse to any
security for any First Priority Indebtedness, until such time as all First
Priority Indebtedness shall have been indefeasibly paid in full in cash and the
First Priority Indebtedness Documents and all commitments thereunder shall have
terminated pursuant to the respective terms and provisions thereof; provided
that if any payment to the Bank Agents or any holder of First Priority
Indebtedness is rescinded as a result of a proceeding or otherwise,
-21-
the subrogation of each Second Priority Agent and each holder of Second Priority
Indebtedness and each Third Priority Agent and each holder of Third Priority
Indebtedness as provided herein shall likewise be rescinded until all of the
First Priority Indebtedness is indefeasibly paid in full in cash.
(d) No right of the U.S. Collateral Agent or the Bank Agents or holder
of First Priority Indebtedness to enforce the subordination of the Liens on U.S.
Collateral securing all or any part of the Second Priority Indebtedness and
Third Priority Indebtedness shall be impaired by any act or failure to act by
Crown Holdings or any of its subsidiaries or by its failure to comply with this
Agreement. Without limiting the generality of the foregoing, the rights of the
U.S. Collateral Agent and the Bank Agents and holders of First Priority
Indebtedness under this Agreement shall remain in full force and effect without
regard to, and shall not be impaired by: (i) any act or failure to act of Crown
Holdings or any of its subsidiaries, the Bank Agents or holder of First Priority
Indebtedness, or any noncompliance by Crown Holdings or any of its subsidiaries
or any U.S. Pledgor, the Bank Agents or holder of First Priority Indebtedness
with any agreement or obligation, regardless of any knowledge thereof which the
U.S. Collateral Agent or the Bank Agents or holder of First Priority
Indebtedness may have or with which the U.S. Collateral Agent or the Bank Agents
or holder of First Priority Indebtedness may be charged, (ii) the validity or
enforceability of any of the First Priority Indebtedness Documents or of the
Lien created by the U.S. Security Documents or the avoidance of the First
Priority Indebtedness or such Lien under the Bankruptcy Code or other applicable
law (and all of the provisions of this Agreement shall be applied as though
there were no such invalidity or avoidance), (iii) any extension or indulgence
in respect of any payment or prepayment of the First Priority Indebtedness or
any part thereof or in respect of any other amount payable to the U.S.
Collateral Agent or the Bank Agents or holder of First Priority Indebtedness,
(iv) any amendment, modification or waiver of any of the terms of the First
Priority Indebtedness Documents or the Second Priority Indebtedness Documents or
the Third Priority Indebtedness Documents, (v) any exercise, delayed exercise or
non-exercise by the U.S. Collateral Agent or the Bank Agents or holder of First
Priority Indebtedness of any right, power, privilege or remedy under or in
respect of any First Priority Indebtedness, the U.S. Collateral or this
Agreement, (vi) any other action of the U.S. Collateral Agent or the Bank Agents
or holder of First Priority Indebtedness permitted under the First Priority
Indebtedness Documents or this Agreement or (vii) the absence of any notice to,
or knowledge by, any Second Priority Agent or holder of Second Priority
Indebtedness or any Third Priority Agent or any holder of Third Priority
Indebtedness of the existence, creation or non-payment of all or any part of the
First Priority Indebtedness, or the occurrence of any of the matters or events
set forth in the foregoing clauses (i) through (vii), except as such notice
shall be specifically required pursuant to the terms thereof.
(e) All of the First Priority Indebtedness shall be deemed to have been
made or incurred in reliance upon this Agreement and each Second Priority Agent
and each holder of Second Priority Indebtedness and each Third Priority Agent
and holder of Third
-22-
Priority Indebtedness expressly waives (i) notice of acceptance by the U.S.
Collateral Agent or the Bank Agents or holder of First Priority Indebtedness of
this Agreement, (ii) notice of the existence or creation or non-payment of all
or any part of the First Priority Indebtedness, (iii) all diligence in
collection or protection of or realization upon all or any part of the First
Priority Indebtedness or any security therefor and any requirement that the U.S.
Collateral Agent or the Bank Agents or holder of First Priority Indebtedness
protect, secure, perfect or insure any Lien or any property subject thereto or
exhaust any right or take any action against Crown Holdings or any of its
subsidiaries or any other Person or any such property, and (iv) promptness,
diligence, notice of acceptance and any other notice with respect to any of the
First Priority Indebtedness.
(f) Each Second Priority Agent and holder of Second Priority
Indebtedness and each Third Priority Agent and holder of Third Priority
Indebtedness agrees and consents that the Bank Agents and each holder of First
Priority Indebtedness may, at any time and from time to time, in their sole
discretion, without the consent of or notice to the Second Priority Agent or the
holders of Second Priority Indebtedness or any Third Priority Agent or any
holder of Third Priority Indebtedness (except to the extent such notice is
specifically required pursuant to the provisions of this Agreement), without
incurring responsibility to any Second Priority Agent or holder of Second
Priority Indebtedness or any Third Priority Agent or any holder of Third
Priority Indebtedness, and without impairing or releasing the subordination
provided for herein or the obligations of any Second Priority Agent or holder of
Second Priority Indebtedness or any Third Priority Agent or holder of Third
Priority Indebtedness to the Bank Agents or holder of First Priority
Indebtedness hereunder, amend, restate, supplement or otherwise modify the First
Priority Indebtedness Documents in any way whatsoever, including, without
limitation, the following: (i) shorten the final maturity of all or any part of
the First Priority Indebtedness, (ii) modify the amortization of the principal
amount of all or any part of the First Priority Indebtedness, (iii) increase the
principal amount of the First Priority Indebtedness, or otherwise provide for
additional advances, (iv) raise the standard or default per annum interest rates
applicable to all or any part of the First Priority Indebtedness, (v) impose any
additional fees or penalties upon Crown Holdings or any of its subsidiaries or
increase the amount of or rate for any fees or penalties provided for in the
First Priority Indebtedness Documents, (vi) retain or obtain a Lien on any
property to secure any of the First Priority Indebtedness, (vii) enter into new
First Priority Indebtedness Documents with Crown Holdings or any of its
subsidiaries, (viii) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, all or any of the First Priority
Indebtedness or otherwise amend, restate, supplement or otherwise modify in any
manner, or grant any waiver or release with respect to, all or any part of the
First Priority Indebtedness or any of the First Priority Indebtedness Documents,
(ix) retain or obtain the primary or secondary obligation of any other Person
with respect to any of the First Priority Indebtedness, (x) release any Person
liable in any manner under or in respect of First Priority Indebtedness or
release or compromise any obligation of any nature of any Person with respect to
any of the First Priority Indebtedness, (xi) sell, exchange, not perfect or
otherwise deal with any property at any time
-23-
pledged, assigned or mortgaged to secure or otherwise securing, all or any part
of the First Priority Indebtedness, (xii) release its security interest in, or
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any First Priority Indebtedness, or release,
compromise, alter or exchange any obligations of any nature of any Person with
respect to any such property, (xiii) amend, or grant any waiver or release with
respect to, or consent to any departure from, any guaranty for all or any of the
First Priority Indebtedness, (xiv) exercise or refrain from exercising any
rights or remedies against and release from obligations of any type, Crown
Holdings or any of its subsidiaries or any other Person, (xv) apply any sums
from time to time received to the First Priority Indebtedness in such manner
such as such Person shall determine and (xvi) otherwise manage and supervise the
First Priority Indebtedness in accordance with such Person's usual practices,
modified from time to time as such Person deems appropriate under the
circumstances.
Section 6. Certain Provisions Regarding Third Priority Indebtedness.
--------------------------------------------------------
(a) This Section shall apply to Third Priority Indebtedness in relation
to Second Priority Indebtedness at any time that Obligations under Second
Priority Indebtedness are outstanding while all Obligations under First Priority
Indebtedness have been indefeasibly repaid in full and all First Priority
Indebtedness Documents have been terminated and the letters of credit under the
Credit Agreement have been cancelled.
(b) In the event any Proceeds of U.S. Collateral are received by any
Third Priority Agent or any holder of Third Priority Indebtedness other than as
expressly permitted by the terms of this Agreement, such Proceeds shall be
received by such Person in trust for the benefit of the Second Priority Agents
and the holders of Second Priority Indebtedness and such Person shall promptly
turn over such proceeds to the U.S. Collateral Agent (in the same form as
received, with any necessary non-recourse endorsement), for application (in the
case of cash) to, or as U.S. Collateral (in the case of non-cash property or
securities) for, the payment or prepayment of the Second Priority Indebtedness
remaining unpaid to the extent necessary to pay such Second Priority
Indebtedness in full in accordance with its terms. In the event any Third
Priority Agent or any holder of Third Priority Indebtedness fails to provide any
endorsement, as contemplated by the preceding sentences, the U.S. Collateral
Agent, or any of its officers or employees, is hereby irrevocably authorized to
make the same (which authorization, being coupled with an interest, is
irrevocable).
(c) Each Third Priority Agent and each holder of Third Priority
Indebtedness hereby waives all rights of subrogation to the claims of the Second
Priority Agents and holders of Second Priority Indebtedness against Crown
Holdings or any of its subsidiaries, and waives all rights of recourse to any
security for any Second Priority Indebtedness, until such time as all Second
Priority Indebtedness shall have been indefeasibly paid in full in cash and the
Second Priority Indebtedness Documents shall have terminated pursuant to the
respective terms and provisions thereof; provided that if any payment to the
Second Priority
-24-
Agents or any holder of Second Priority Indebtedness is rescinded as a result of
a proceeding or otherwise, the subrogation of each Third Priority Agent and each
holder of Third Priority Indebtedness as provided herein shall likewise be
rescinded until all of the Second Priority Indebtedness is indefeasibly paid in
full in cash.
(d) No right of the U.S. Collateral Agent or any Second Priority Agent
or holder of Second Priority Indebtedness to enforce the subordination of the
Liens on U.S. Collateral securing all or any part of the Third Priority
Indebtedness shall be impaired by any act or failure to act by Crown Holdings or
any of its subsidiaries or by its failure to comply with this Agreement. Without
limiting the generality of the foregoing, the rights of the U.S. Collateral
Agent and the Second Priority Agents and holders of Second Priority Indebtedness
under this Agreement shall remain in full force and effect without regard to,
and shall not be impaired by: (i) any act or failure to act of Crown Holdings or
any of its subsidiaries or any U.S. Pledgor, Second Priority Agent or holder of
Second Priority Indebtedness, or any noncompliance by Crown Holdings or any of
its subsidiaries or any U.S. Pledgor, Second Priority Agent or holder of Second
Priority Indebtedness with any agreement or obligation, regardless of any
knowledge thereof which the U.S. Collateral Agent or Second Priority Agent or
holder of Second Priority Indebtedness may have or with which the U.S.
Collateral Agent or any Second Priority Agent or holder of Second Priority
Indebtedness may be charged, (ii) the validity or enforceability of any of the
Second Priority Indebtedness Documents or of the Lien created by the U.S.
Security Documents or the avoidance of Second Priority Indebtedness or such Lien
under the Bankruptcy Code or other applicable law (and all of the provisions of
this Agreement shall be applied as though there were no such invalidity or
avoidance), (iii) any extension or indulgence in respect of any payment or
prepayment of the Second Priority Indebtedness or any part thereof or in respect
of any other amount payable to the U.S. Collateral Agent or any Second Priority
Agent or holder of Second Priority Indebtedness, (iv) any amendment,
modification or waiver of any of the terms of the Second Priority Indebtedness
Documents or the Third Priority Indebtedness Documents, (v) any exercise,
delayed exercise or non-exercise by the U.S. Collateral Agent or any Second
Priority Agent or holder of Second Priority Indebtedness of any right, power,
privilege or remedy under or in respect of any Second Priority Indebtedness, the
U.S. Collateral or this Agreement, (vi) any other action of the U.S. Collateral
Agent or any Second Priority Agent or holder of Second Priority Indebtedness
permitted under the Second Priority Indebtedness Documents or this Agreement or
(vii) the absence of any notice to, or knowledge by, any Third Priority Agent or
holder of Third Priority Indebtedness of the existence, creation or non-payment
of all or any part of the Second Priority Indebtedness, or the occurrence of any
of the matters or events set forth in the foregoing clauses (i) through (vii),
except as such notice shall be specifically required pursuant to the terms
thereof.
(e) All of the Second Priority Indebtedness shall be deemed to have
been made or incurred in reliance upon this Agreement and each Third Priority
Agent and each holder of Third Priority Indebtedness expressly waives (i) notice
of acceptance by the U.S.
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Collateral Agent or any Second Priority Agent or holder of Second Priority
Indebtedness of this Agreement, (ii) notice of the existence or creation or
non-payment of all or any part of Second Priority Indebtedness, (iii) all
diligence in collection or protection of or realization upon all or any part of
the Second Priority Indebtedness or any security therefor and any requirement
that the U.S. Collateral Agent or any Second Priority Agent or holder of Second
Priority Indebtedness protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against Crown
Holdings or any of its subsidiaries or any other Person or any such property,
and (iv) promptness, diligence, notice of acceptance and any other notice with
respect to any of the Second Priority Indebtedness.
(f) Each Third Priority Agent and holder of Third Priority Indebtedness
agrees and consents that each Second Priority Agent and each holder of Second
Priority Indebtedness may, at any time and from time to time, in their sole
discretion, without the consent of or notice to any Third Priority Agent or
holders of Third Priority Indebtedness (except to the extent such notice is
specifically required pursuant to the provisions of this Agreement), without
incurring responsibility to any Third Priority Agent or any holder of Third
Priority Indebtedness, and without impairing or releasing the subordination
provided for herein or the obligations of any Third Priority Agent or holder of
Third Priority Indebtedness to any Second Priority Agent or holder of Second
Priority Indebtedness hereunder, amend, restate, supplement or otherwise modify
the Second Priority Indebtedness Documents in any way whatsoever, including,
without limitation, the following: (i) shorten the final maturity of all or any
part of the Second Priority Indebtedness, (ii) modify the amortization of the
principal amount of all or any part of the Second Priority Indebtedness, (iii)
increase the principal amount of the Second Priority Indebtedness, or otherwise
provide for additional advances, (iv) raise the standard or default per annum
interest rates applicable to all or any part of the Second Priority
Indebtedness, (v) impose any additional fees or penalties upon Crown Holdings or
any of its subsidiaries or increase the amount of or rate for any fees or
penalties provided for in the Second Priority Indebtedness Documents, (vi)
retain or obtain a Lien on any property to secure any of the Second Priority
Indebtedness, (vii) enter into new Second Priority Indebtedness Documents with
Crown Holdings or any of its subsidiaries or any U.S. Pledgor or any of its
direct or indirect subsidiaries, (viii) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, all or any of the
Second Priority Indebtedness or otherwise amend, restate, supplement or
otherwise modify in any manner, or grant any waiver or release with respect to,
all or any part of the Second Priority Indebtedness or any of the Second
Priority Indebtedness Documents, (ix) retain or obtain the primary or secondary
obligation of any other Person with respect to any of the Second Priority
Indebtedness, (x) release any Person liable in any manner under or in respect of
Second Priority Indebtedness or release or compromise any obligation of any
nature of any Person with respect to any of the Second Priority Indebtedness,
(xi) sell, exchange, not perfect or otherwise deal with any property at any time
pledged, assigned or mortgaged to secure or otherwise securing, all or any part
of the Second Priority Indebtedness, (xii) release its security interest in, or
surrender, release or permit any substitution or exchange for, all or any part
of any property securing any Second
-26-
Priority Indebtedness, or release, compromise, alter or exchange any obligations
of any nature of any Person with respect to any such property, (xiii) amend, or
grant any waiver or release with respect to, or consent to any departure from,
any guaranty for all or any of the Second Priority Indebtedness, (xiv) exercise
or refrain from exercising any rights or remedies against and release from
obligations of any type, Crown Holdings or any of its subsidiaries or any U.S.
Pledgor or any other Person, (xv) apply any sums from time to time received to
the Second Priority Indebtedness in such manner such as such Person shall
determine and (xvi) otherwise manage and supervise the Second Priority
Indebtedness in accordance with such Person's usual practices, modified from
time to time as such Person deems appropriate under the circumstances.
Section 7. Information.
------------
In the event the U.S. Collateral Agent proceeds to foreclose upon,
collect, sell or otherwise dispose of or take any other action with respect to
the U.S. Collateral, or any portion thereof, or to enforce any U.S. Security
Document, or proposes to take any other action pursuant to this Agreement or
requests instructions from the U.S. Secured Parties as provided herein, upon the
request of the U.S. Collateral Agent, each of the following U.S. Secured Parties
agrees to provide promptly to the U.S. Collateral Agent the following
information:
(a) The Bank Agents on behalf of the Lenders and agents under
the Credit Agreement, by executing this Agreement, agree to promptly
from time to time notify the U.S. Collateral Agent of (i) the aggregate
amount of principal of and interest on the Obligations and any fees or
other amounts owing under the Credit Agreement and the amount of
outstanding letters of credit under the Credit Agreement as at such date
and the amount, if any, then due and payable under the Credit Agreement
as the U.S. Collateral Agent may specify, (ii) the current commitment of
each Lender under the Credit Agreement, and (iii) any payment received
by the Bank Agents to be applied to the principal of or interest on the
amounts due under the Credit Agreement or any fees or other amounts
owing under the Credit Agreement. The Bank Agents shall certify as to
such amounts and the U.S. Collateral Agent shall be entitled to rely
conclusively upon such certification.
(b) Each Bank Related Hedging Exchanger party to a Bank Related
Hedging Agreement benefited by this Agreement, by signing an
acknowledgment to this Agreement, agrees to promptly from time to time
notify the U.S. Collateral Agent of (i) the notional amount under such
Bank Related Hedging Agreement and the amount payable by Crown Holdings
or any of its subsidiaries upon early termination of such Bank Related
Hedging Agreement at the date of termination as fixed by such Bank
Related Hedging Agreement and (ii) any payment received by such Bank
Related Hedging Exchanger to be applied to amounts due upon early
termination of such Bank Related Hedging Agreement. Such Bank Related
Hedging Exchanger shall certify as
-27-
to such amounts and the U.S. Collateral Agent shall be entitled to rely
conclusively upon such certification.
(c) Each Bank Related Cash Management Exchanger party to a Bank
Related Cash Management Agreement benefited by this Agreement, by
signing an acknowledgment to this Agreement, agrees to promptly from
time to time notify the U.S. Collateral Agent of (i) the notional amount
under such Bank Related Cash Management Agreement and the amount payable
by Crown Holdings or any of its subsidiaries upon early termination of
such Bank Related Cash Management Agreement at the date of termination
as fixed by such Bank Related Cash Management Agreement and (ii) any
payment received by such Bank Related Cash Management Exchanger to be
applied to amounts due upon early termination of such Bank Related Cash
Management Agreement. Such Bank Related Cash Management Exchanger shall
certify as to such amounts and the U.S. Collateral Agent shall be
entitled to rely conclusively upon such certification.
(d) Upon written request from the U.S. Collateral Agent, the
Second Priority Notes Trustee, by executing this Agreement, agrees to
promptly notify the U.S. Collateral Agent of (i) the aggregate amount of
principal and interest outstanding and other amounts owing with respect
to the Second Priority Notes under the Second Priority Notes Documents
and the amount, if any, then due and payable under such Second Priority
Notes and Second Priority Notes Documents, as at such date as the U.S.
Collateral Agent may specify and (ii) any payment received by such
Second Priority Notes Trustee to be applied to the principal of or
interest on the amounts due with respect to the Second Priority Notes
and Second Priority Notes Documents. The Second Priority Notes Trustee
shall certify as to such amounts and the U.S. Collateral Agent shall be
entitled to rely conclusively upon such certification.
(e) Upon written request from the U.S. Collateral Agent, the
Third Priority Notes Trustee, by executing this Agreement, agrees to
promptly notify the U.S. Collateral Agent of (i) the aggregate amount of
principal and interest outstanding and other amounts owing with respect
to the Third Priority Notes under the Third Priority Notes Documents and
the amount, if any, then due and payable under such Third Priority Notes
and Third Priority Notes Documents, as at such date as the U.S.
Collateral Agent may specify and (ii) any payment received by such Third
Priority Notes Trustee to be applied to the principal of or interest on
the amounts due with respect to the Third Priority Notes and Third
Priority Notes Documents. The Third Priority Notes Trustee shall certify
as to such amounts and the U.S. Collateral Agent shall be entitled to
rely conclusively upon such certification.
(f) Each Additional Second Priority Indebtedness Representative
with respect to the Additional Second Priority Indebtedness benefited by
this Agreement, by
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signing an acknowledgment to this Agreement, agrees to promptly from
time to time notify the U.S. Collateral Agent of (i) the aggregate
amount of principal and interest outstanding and other amounts owing
under the applicable Additional Second Priority Indebtedness Documents
and the amount, if any, then due and payable under such Additional
Second Priority Indebtedness, as at such date as the U.S. Collateral
Agent may specify and (ii) any payment received by such Additional
Second Priority Indebtedness Representative to be applied to the
principal of or interest on the amounts due with respect to such
Additional Second Priority Indebtedness and such Additional Second
Priority Indebtedness Documents. The Additional Second Priority
Indebtedness Representative shall certify as to such amounts and the
U.S. Collateral Agent shall be entitled to rely conclusively upon such
certification.
(g) Each Additional Third Priority Indebtedness Representative
with respect to Additional Third Priority Indebtedness benefited by this
Agreement, by signing an acknowledgment to this Agreement, agrees to
promptly from time to time notify the U.S. Collateral Agent of (i) the
aggregate amount of principal and interest outstanding and other amounts
owing under the applicable Additional Third Priority Indebtedness
Documents and the amount, if any, then due and payable under such
Additional Third Priority Indebtedness Documents, as at such date as the
U.S. Collateral Agent may specify and (ii) any payment received by such
Additional Third Priority Indebtedness Representative to be applied to
the principal of or interest on the amounts due with respect to such
Additional Third Priority Indebtedness and such Additional Third
Priority Indebtedness Documents. The Additional Third Priority
Indebtedness Representative shall certify as to such amounts and the
U.S. Collateral Agent shall be entitled to rely conclusively upon such
certification.
Section 8. Bank Related Hedging Agreements; Bank Related Cash Management
Agreements; Additional Second Priority Indebtedness Documents;
Additional Third Priority Indebtedness Documents.
---------------------------------------------------------------
(a) Each Bank Related Hedging Exchanger and Bank Related Cash
Management Exchanger may cause Bank Related Hedging Obligations and Bank Related
Cash Management Obligations to be secured by the U.S. Security Documents by
executing an acknowledgment in the form contained on the signature pages hereof,
and by delivering such executed acknowledgment to the U.S. Collateral Agent, by
which such Bank Related Hedging Exchanger or Bank Related Cash Management
Exchanger agrees to be bound by the terms of this Agreement.
(b) Each Additional Second Priority Indebtedness Representative, on
behalf of itself and all holders of such Additional Second Priority
Indebtedness, may cause such Additional Second Priority Indebtedness to be
secured by the U.S. Security Documents by causing their Additional Second
Priority Indebtedness Representative to execute an acknowl-
-29-
edgment in the form contained on the signature pages hereof, and by delivering
such executed acknowledgment to the U.S. Collateral Agent, by which such
Additional Second Priority Indebtedness Representative agrees, on behalf of
itself and all holders of such Additional Second Priority Indebtedness, to be
bound by the terms of this Agreement.
(c) Each Additional Third Priority Indebtedness Representative, on
behalf of itself and all holders of such Additional Third Priority Indebtedness,
may cause such Additional Third Priority Indebtedness to be secured by the U.S.
Security Documents by causing their Additional Third Priority Indebtedness
Representative to execute an acknowledgment in the form contained on the
signature pages hereof and by delivering such executed acknowledgment to the
U.S. Collateral Agent, by which such Additional Third Priority Indebtedness
Representative agrees, on behalf of itself and all holders of such Additional
Third Priority Indebtedness, to be bound by the terms of this Agreement.
Section 9. Disclaimers, Indemnity, Etc.
----------------------------
(a) By becoming a party to this Agreement, each U.S. Secured Party
acknowledges that the U.S. Collateral Agent shall not be the trustee of any U.S.
Secured Party. The U.S. Collateral Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement, the U.S.
Security Documents, and the U.S. Collateral Agent shall not by reason of this
Agreement or the U.S. Security Documents be a trustee for any U.S. Secured Party
or have any other fiduciary obligation to any U.S. Secured Party (including any
obligation under the Trust Indenture Act of 1939, as amended). The U.S.
Collateral Agent shall not be responsible to any U.S. Secured Party for any
recitals, statements, representations or warranties contained in this Agreement
or any Financing Document or in any certificate or other document referred to or
provided for in, or received by any of them under, any of the Financing
Documents, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Financing Documents or any other
document referred to or provided for therein or any Lien under the U.S. Security
Documents or the perfection or priority of any such Lien or for any failure by
any other party to perform any of its respective obligations under any of the
Financing Documents. The U.S. Collateral Agent may employ agents and
sub-collateral agents and attorneys-in-fact and shall not be responsible, except
as to money or securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. Neither the U.S. Collateral Agent nor any of its
directors, officers, employees or agents shall be liable or responsible for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for actions that are finally judicially determined to have
resulted from its or their own gross negligence or willful misconduct.
(b) The U.S. Collateral Agent shall be entitled to request and rely
upon any certification, notice or other communication (including any thereof by
telex, telecopy, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or
-30-
on behalf of the proper person or persons, and upon advice and statements of
legal counsel (including counsel to the Obligors or any of their subsidiaries),
independent accountants and other experts selected by the U.S. Collateral Agent
and shall in all cases be fully protected in acting or refraining from so acting
upon. Without limiting any rights of the U.S. Collateral Agent hereunder, the
U.S. Collateral Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by
Requisite Obligees, and such instructions of Requisite Obligees, and any action
taken or failure to act pursuant thereto, shall be binding on all of the U.S.
Secured Parties.
(c) Each of Crown Holdings, CCSC, Crown International, Crown Usco,
Crown Euroco and each U.S. Pledgor (collectively, the "Indemnifying Parties")
agrees, jointly and severally, to indemnify the U.S. Collateral Agent for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the U.S.
Collateral Agent in any way relating to or arising out of any of this Agreement,
the U.S. Security Documents, the Financing Documents or any other documents
contemplated by or referred to therein or the transactions contemplated thereby
or the enforcement of any of the terms of any thereof; provided, however, that
no such Indemnifying Party shall be liable for any of the foregoing to the
extent they are finally judicially determined to have resulted from the gross
negligence or willful misconduct of the U.S. Collateral Agent.
(d) Except for action expressly required of the U.S. Collateral Agent
hereunder, the U.S. Collateral Agent shall, notwithstanding anything to the
contrary in Section 9(c) hereof, in all cases be fully justified in failing or
refusing to act hereunder or under the U.S. Security Documents unless it shall
be further indemnified to its satisfaction by the U.S. Secured Parties (or the
lenders or holders represented thereby) against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
(e) Except as expressly provided herein and in the U.S. Security
Documents, the U.S. Collateral Agent shall have no duty to take any affirmative
steps with respect to the collection of amounts payable in respect of the U.S.
Collateral. The U.S. Collateral Agent shall incur no liability to any U.S.
Secured Party as a result of any sale of any U.S. Collateral at any private
sale.
(f) (i) The U.S. Collateral Agent may resign at any time by giving at
least 5 days' notice thereof to the U.S. Secured Parties (such resignation to
take effect as hereinafter provided) and the U.S. Collateral Agent may be
removed as U.S. Collateral Agent at any time by Requisite Obligees. In the event
of such resignation or removal of the U.S. Collateral Agent, Requisite Obligees
shall thereupon have the right to appoint a successor U.S. Collateral Agent. If
no successor U.S. Collateral Agent shall have been so appointed by Requisite
Obligees and shall have accepted such appointment within 30 days after the
notice of the in-
-31-
tent of the U.S. Collateral Agent to resign, then the retiring U.S. Collateral
Agent may, on behalf of the other U.S. Secured Parties, appoint a successor U.S.
Collateral Agent. Any successor U.S. Collateral Agent appointed pursuant to this
clause (f)(i) shall be a commercial bank organized under the laws of the United
States of America or any state thereof and having a combined capital and surplus
of at least $500,000,000.
(ii) Upon the acceptance of any appointment as U.S. Collateral Agent
hereunder by a successor U.S. Collateral Agent, such successor U.S. Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed U.S. Collateral Agent, and the
retiring or removed U.S. Collateral Agent shall thereupon be discharged from its
duties and obligations hereunder and under the Global Participation Agreement
and the U.S. Security Documents. After any retiring or removed U.S. Collateral
Agent's resignation or removal hereunder as U.S. Collateral Agent, the
provisions of this Section 9 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
U.S. Collateral Agent.
(iii) In no event shall the U.S. Collateral Agent or any U.S. Secured
Party be liable or responsible for any funds or investments of funds held by any
U.S. Pledgor or any affiliates thereof.
(g) Each of the U.S. Secured Parties understands and acknowledges that
the U.S. Collateral Agent and its Affiliates may also hold indebtedness of Crown
Holdings or any of its subsidiaries, be an agent under any of the Financing
Documents and act in other financial advisory or underwriting capacities on
behalf of Crown Holdings or any of its subsidiaries, and waives any actual or
potential conflict of interest resulting therefrom.
Section 10. Miscellaneous.
--------------
(a) All notices and other communications provided for herein shall be
in writing and may be personally served, telecopied, e-mailed or sent by United
States mail and shall be deemed to have been given when delivered in person,
upon receipt of telecopy or e-mail or four Business Days after deposit in the
United States mail, registered or certified, with postage prepaid and properly
addressed. For the purposes hereof, the addresses of the parties hereto (until
notice of a change thereof is delivered as provided in this Section 10(a)) shall
be as set forth under each party's name on the signature pages (including
acknowledgments) hereof.
(b) This Agreement may be modified or waived only by an instrument or
instruments in writing signed by the U.S. Collateral Agent with the written
consent of Requisite Obligees, except that any modification or waiver (i)
adversely affecting a U.S. Secured Party's rights under Section 3(f)(i) or
Section 4 hereof or (ii) that by its terms has a disproportionate (i.e., not
ratable) adverse effect on any Secured Party (or opposed to all Secured Parties)
shall, in each case, require the written consent of the agent or representative
representing
-32-
such U.S. Secured Party; provided, however, that, notwithstanding the foregoing,
the written consent of the U.S. Secured Parties shall not be required with
respect to amendments, modifications or waivers necessary to permit the
incurrence of additional indebtedness secured by the U.S. Collateral and
entitled to the benefits of the U.S. Security Documents insofar as the foregoing
is not prohibited by the Financing Documents benefiting such U.S. Secured Party,
including for the purposes of providing any successor or replacement credit
agreement or bank facility to the Credit Agreement and for the administrative
agent of such successor or replacement credit agreement or bank facility
becoming a party to this Agreement, as Bank Agent(s), and including without
limitation any amendments, modifications or waivers for the purpose of adding
appropriate references to additional parties in, and according such parties the
benefits of, any of the provisions hereof in connection with the incurrence of
such indebtedness; provided, further, that any modification or waiver to this
Agreement that directly and adversely affects Crown Holdings or any of its
subsidiaries shall require the written consent of Crown Holdings.
(c) This Agreement shall be binding upon and inure to the benefit of
the U.S. Collateral Agent, each U.S. Secured Party and their respective
successors and assigns.
(d) This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
(e) This Agreement shall become effective as to the Bank Agents, the
Second Priority Notes Trustee and the Third Priority Notes Trustee listed on the
signature pages hereof and the U.S. Collateral Agent upon the execution of this
Agreement by each of the Bank Agents, the Second Priority Notes Trustee and the
Third Priority Notes Trustee and the U.S. Collateral Agent and the delivery of
each such Person's counterparts to the U.S. Collateral Agent.
(f) If any U.S. Secured Party shall enforce its rights or remedies in
violation of the terms of this Agreement, Crown Holdings and its subsidiaries
agree that they shall not raise such violation as a defense to the enforcement
by any other U.S. Secured Party under the Financing Documents.
(g) Each of the parties hereto authorizes the U.S. Collateral Agent to
execute and file on its behalf all such further documents and instruments, and
authorizes the U.S. Collateral Agent to perform such other acts, as may be
reasonably necessary or advisable to effectuate the purposes of this Agreement.
(h) If any provision of this Agreement shall be inconsistent with, or
contrary to, any provisions in any Financing Document or any other instrument
delivered in connection with the transactions contemplated thereby, the
applicable provision in this Agreement shall be controlling and shall supersede
such inconsistent provision to the extent neces-
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sary to give full effect to all provisions contained in this Agreement. Each
U.S. Secured Party acknowledges and agrees that the terms and provisions of this
Agreement do not violate any term or provisions of its respective Financing
Document.
(i) Each of the U.S. Secured Parties (other than the Bank Agents and
Lenders with regard to the Credit Documents and any Bank Related Hedging
Exchanger and any Bank Related Cash Management Exchanger) shall use its best
efforts to notify the other of any amendment, modification or waiver to any of
its Financing Documents, but the failure to do so shall not create a cause of
action against the party failing to give such notice or create any claim or
right on behalf of any third party. Each of the U.S. Secured Parties (other than
the Bank Agents and Lenders with regard to the Credit Documents and any Bank
Related Hedging Exchanger and any Bank Related Cash Management Exchanger) shall,
upon request of the other or others, provide copies of all such modifications,
amendments and waivers and copies of all other documentation relevant to the
U.S. Collateral.
(j) Each of the parties represents and warrants to all other parties
hereto that the execution, delivery and performance by or on behalf of such
party to this Agreement has been duly authorized by all necessary action,
corporate or otherwise, does not violate any provision of law, governmental
regulation, or any agreement or instrument by which such party is bound, and
requires no governmental or other consent that has not been obtained and is not
in full force and effect.
(k) Crown Holdings, Crown International, Crown Usco, Crown Euroco, CCSC
and the U.S. Pledgors shall pay to the U.S. Collateral Agent upon demand the
amount of any and all reasonable expenses of the U.S. Secured Parties and the
U.S. Collateral Agent, including, without limitation, the reasonable fees and
expenses of counsel for the U.S. Secured Parties and U.S. Collateral Agent
incurred from time to time in connection with the exercise or enforcement of any
of their respective rights, interests or remedies under and pursuant to the U.S.
Security Documents and this Agreement, and for the avoidance of doubt, in each
case including such rights, interests and remedies under and pursuant to this
Agreement. All such amounts shall constitute part of the Obligations under such
U.S. Security Documents.
(l) The U.S. Collateral Agent may demand specific performance of this
Agreement. Each of the U.S. Secured Parties hereby irrevocably waives any
defense based on the adequacy of a remedy at law and any other defense which
might be asserted to bar the remedy of specific performance in any action which
may be brought by the U.S. Collateral Agent.
(m) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY
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JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT. 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, AS APPLICABLE, BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(m).
(n) Anything contained in this Agreement to the contrary
notwithstanding, each U.S. Secured Party shall no longer be a party from and
after such time as all of the Obligations owing to such U.S. Secured Party and
secured by any of the U.S. Security Documents, or the instruments representing
the same, shall have ceased to be outstanding by virtue of the indefeasible
payment in full in cash thereof or the cancellation thereof or delivery for
cancellation thereof in accordance with their terms.
(o) Each party 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 for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that a party may otherwise have
to bring any action or proceeding relating to this Agreement in the courts of
any jurisdiction.
(p) Each party hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any New York State or Federal
court referred to in paragraph (o) 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.
(q) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10(a). Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
[Remainder of page intentionally left blank]
Annex 5
S-1
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Second Priority Notes Trustee
By: /s/ Xxxxxxx Xxxx
Title: Corporate Trust Officer
Notice Address:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust Services
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-1
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Third Priority Notes Trustee
By: /s/ Xxxxxxx Xxxx
Title: Corporate Trust Officer
Notice Address:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust Services
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP INTERNATIONAL, plc,
as U.K. Administrative Agent,
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
Notice Address:
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile x00 000 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP NORTH AMERICA, INC.,
as U.S. Collateral Agent,
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CROWN HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CROWN INTERNATIONAL HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CORK & SEAL AMERICAS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SUBSIDIARIES
Crown Consultants, Inc.
Crown Cork & Seal Technologies Corporation
Crown Beverage Packaging, Inc.
Crown Cork de Puerto Rico, Inc.
Foreign Manufacturers Finance Corporation
Nationwide Recyclers' Inc.
Xxxxxx-AMS (USA), Inc.
Central States Can Co. of Puerto Rico, Inc.
Eyelet, Inc.
Eyelet Specialty Co., Inc.
Crown Financial Management, Inc.
Hocking Valley Leasing Company
Xxxxxx Plastik, Inc.
Crown Overseas Investments Corporation
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Crown Cork & Seal Company (USA), Inc.
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief Financial
Officer and Treasurer
Crown Cork & Seal Company (PA), Inc.
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: President
Crown Financial Corporation
By /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, Chief
Financial Officer and Treasurer
Crown New Delaware Holdings, Inc.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Crown Holdings (PA), LLC
(formerly Crown Holdings, LLC)
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Crown Cork & Seal Company (DE), LLC
(formerly Crown Cork & Seal Company, LLC)
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
