EXECUTION COPY
EURO 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
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(i) CITIBANK INTERNATIONAL PLC, as UK administrative agent (in such capacity,
together with its successors and assigns, the "Bank Agent") for the Term B Euro
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Lenders and Revolving Euro Lenders from time to time party to the Credit
Agreement (as defined below), (ii) 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
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Notes (as defined below) issued under the Second Priority Notes Indenture (as
defined below), (iii) XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, as
trustee (in such capacity, together with its successors and assigns, the "Third
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Priority Notes Trustee") for the holders of Third Priority Notes (as defined
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below) issued under the Third Priority Notes Indenture (as defined below), (iv)
CITICORP TRUSTEE COMPANY LIMITED, as Euro Collateral Agent (as defined below),
(v) Crown European Holdings SA ("Crown Euroco"), (vi) the subsidiaries of Crown
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Euroco identified on Schedule 1 hereto and (vii) the other persons who may
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become parties to this Agreement from time to time pursuant to and in accordance
with Section 8 of this Agreement.
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R E C I T A L S
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1. On the date hereof, Crown Euroco, an indirect French subsidiary of Crown
Cork & Seal Company, Inc. ("CCSC"), is issuing $1.085 billion in aggregate
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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").
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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 from time to time as permitted by the Credit
Agreement, the "Third Priority Notes Indenture").
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3. On the date hereof, Crown Cork & Seal Americas, Inc., a wholly owned
subsidiary of CCSC ("Crown Usco"), Crown Holdings, Inc. ("Crown Holdings"),
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Crown International, Inc. ("Crown International"), CCSC, Crown Euroco and
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certain subsidiary borrowers have entered into a senior secured credit agreement
dated as of the date hereof
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(as amended, amended and restated, supplemented, refinanced, replaced or
otherwise modified from time to time, the "Credit Agreement", which term shall
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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 Agent's acknowledgment of the termination of
the predecessor Credit Agreement). The Bank Agent under this Agreement is agent
for the Term B Euro Lenders and the Revolving Euro Lenders only from time to
time under the Credit Agreement (the "Lenders") (it being understood that the
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Term B Dollar Lenders and Revolving Dollar Lenders under the Credit Agreement
shall have no rights and obligations under this Agreement).
4. On the date hereof, Crown Euroco, Crown Developpement SNC ("Crown SNC")
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and certain non-U.S. Subsidiaries of Crown Euroco set forth on Schedule 1 hereto
(collectively, and together with any other subsidiaries which are the required
by one or more Financing Documents to become "Euro Pledgors," the "Euro
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Pledgors") will execute and deliver to the Euro Collateral Agent the foreign
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collateral documents identified on Schedule 2 hereto (as amended, amended and
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restated, supplemented or otherwise modified from time to time, and each other
foreign collateral document executed and delivered pursuant to the Credit
Agreement securing assets of Crown Euroco or any Euro Pledgor (including the
Additional Bank Collateral (as defined below)) or adding additional indebtedness
as secured obligations thereunder as required herein, the "Euro Security
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Documents"). All collateral from time to time pledged or subject to or purported
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to be pledged or subject to the Lien of the Euro Security Documents (whether or
not such Lien is determined to be unperfected or subject to avoidence),
including any Additional Bank Collateral, is collectively referred to herein as
the "Euro Collateral".
5. It is understood and acknowledged that only First Priority Indebtedness
will be secured by the Additional Bank Collateral (as defined below).
6. 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 Euro 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
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"Additional Second Priority Indebtedness Documents" collectively and any trustee
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or like representative of the holders of any Additional Second Priority
Indebtedness is referred to herein as an "Additional Second Priority
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Indebtedness Representative"); which Additional Second Priority Indebtedness
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Documents will be secured, by the Euro Collateral pursuant to the Euro Security
Documents and have the priority set forth herein; provided that for any holder
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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 Euro Collateral Agent an
acknowledgment to this Agreement (in the form attached hereto) agreeing to be
bound by the terms hereof.
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7. It is contemplated that, from time to time, to the extent permitted by
the Credit Agreement, Crown Euroco may issue certain Additional Third 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 Euro 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
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"Additional Third Priority Indebtedness Documents" collectively and any trustee
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or like representative of the holders of any Additional Third Priority
Indebtedness is referred to herein as an "Additional Third Priority Indebtedness
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Representative"); which Additional Third Priority Indebtedness Documents will be
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secured, by the Euro Collateral pursuant to the Euro Security Documents and have
the priority set forth herein; provided that for any holder of any Additional
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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 Euro Collateral Agent an acknowledgment to this Agreement (in the
form attached hereto) agreeing to be bound by the terms hereof.
8. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown SNC, Crown Euroco 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 Agent or a Lender or Affiliate thereof
or any other Person permitted under the Credit Agreement at the time such Bank
Related Hedging Agreement was entered into (individually, a "Bank Related
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Hedging Exchanger" and, collectively, the "Bank Related Hedging Exchangers") and
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it is desired that the obligations of Crown SNC, Crown Euroco 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
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the Euro Collateral pursuant to the Euro Security Documents; provided that for
any Bank Related Hedging Exchanger to receive the benefit of such security, it
shall execute and deliver to the Euro 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.
9. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown SNC, Crown Euroco 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 Agent or a Lender or Affiliate
thereof or any other Person permitted under the Credit Agreement at the time
such Bank Related Cash Management Agreement was entered into (individually, a
"Bank Related Cash Management Exchanger" and, collectively,
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the "Bank Related Cash Management Exchangers") and it is desired that the
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obligations of Crown SNC, Crown Euroco 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 Euro
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Collateral pursuant to the Euro Security Documents; provided that for any Bank
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Related Cash Management Exchanger to receive the benefit of such security, it
shall execute and deliver to the Euro 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.
10. (a) The Second Priority Notes Trustee (for its benefit and for the
benefit of the respective holders of the Second Priority Notes), the Bank Agent
(for its benefit and for the benefit of the Euro Collateral Agent, U.K.
Administrative Agent and the Lenders) 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
Euro 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 Euro 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 Euro 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 Euro 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 "Euro Secured Parties") desire to
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set forth (i) certain additional provisions regarding the appointment, duties
and responsibilities of the Euro Collateral Agent and to set forth certain other
provisions concerning the obligations of the Euro Pledgors to the Euro 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
Euro 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.
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"Additional Bank Collateral" means the Additional Euro Stock Collateral,
the Additional Cash Collateral and the Additional Subsidiary Borrower
Collateral.
"Additional Cash Collateral" means the cash deposited in the collateral
account under the Euro Retained Public Debt Collateral Account Agreement pledged
in favor of the Euro Collateral Agent for the benefit of the Euro Lenders under
the Credit Agreement and any Bank Related Hedging Exchanger and Bank Related
Cash Management Exchanger.
"Additional Euro Stock Collateral" means the capital stock of subsidiaries
owned by each Euro Pledgor and pledged to the Euro Collateral Agent for the
benefit of First Priority Indebtedness only.
"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 Euro Collateral as contemplated by the
Euro Security Documents.
"Additional Second Priority Indebtedness Documents" has the meaning given
to such term in the Recitals.
"Additional Subsidiary Borrower Collateral" means the assets of any
subsidiary borrower under the Credit Agreement pledged to the Euro Collateral
Agent for the benefit of First Priority Indebtedness only and securing the
Obligations of such subsidiary borrower under First Priority Indebtedness only
to the extent such subsidiary borrower is not otherwise a subsidiary guarantor
under any Second Priority Indebtedness Documents or Third Priority Indebtedness
Documents.
"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 Euro
Collateral as contemplated by the Euro Security Documents.
"Additional Third Priority Indebtedness Documents" has the meaning given to
such term in the Recitals.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person.
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"Bank Related Cash Management Agreements" means agreements of Crown Euroco,
or any of its subsidiaries arising from treasury, depository and cash management
services provided by one or more Persons that was the Bank Agent 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.
"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 Euroco or any of its subsidiaries entered into with any
counterparty that was the Bank Agent or a Lender or an Affiliate thereof or any
other Person permitted under the Credit Agreement thereof at the time such
Hedging Agreement was entered into.
"Bankruptcy Law" means any 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 Euro 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.
"Enforcement Action" means any action whatsoever to:
(1) demand payment, declare prematurely due and payable or otherwise
seek to accelerate payment of or place on demand all or any apart of any
Intercompany Debt;
(2) recover all or any part of any Intercompany Debt (including by
exercising any right of set-off or combination of accounts);
(3) exercise or enforce any security right against assets or any other
rights under any other document or agreement in relation to (or given in
support of) all or any part of any Intercompany Debt;
(4) petition for (or take any other steps which may lead to) an
Insolvency Event or the appointment of an administrator, a receiver or
manager or equivalent in relation to the applicable Intercompany Creditor;
or
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(5) commence legal proceedings against the applicable Intercompany
Creditor.
"Event of Default" means an Event of Default as defined in the Credit
Agreement.
"Exempted Indebtedness" shall mean any Indebtedness or other obligation
which would be considered "Exempted Indebtedness" under (and as defined in) any
indenture, agreement or instrument governing or evidencing any Existing Public
Debt.
"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 (the "Existing
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Crown Finance S.A. Euro Notes"); and (x) $105.0 million 7.54% Notes due 2005 of
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CarnaudMetalbox Investments (USA), Inc. ("Carnaud") issued under the Note
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Purchase Agreement dated as of May 4, 1993 among CarnaudMetalbox and the
noteholders party thereto, as amended (the "Existing Carnaud Notes").
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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 Crown Euroco,
the subsidiary borrowers and the Euro Pledgors under the Credit Documents and
(ii) the Obligations of Crown Euroco and the Euro Pledgors under the Bank
Related Debt Agreements.
"First Priority Indebtedness Documents" means, collectively, the Credit
Documents and the Bank Related Debt Agreements.
"First Priority U.S. Obligations" shall mean, with respect to any of
the Credit 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, Crown Holdings, CCSC,
Crown Usco and each other obligor or any of their subsidiaries under,
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in connection with, borrowings by Crown Usco under the Credit Agreement,
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 Credit Documents whether
now existing or hereafter arising, whether arising before, during or after the
initial or any renewal term of such Credit Documents, or after the commencement
of any case with respect to Crown Holdings, CCSC, Crown Usco and each other
obligor or any of their subsidiaries under any Bankruptcy Law (at the rate
provided for in the relevant Credit Documents) (and including, without
limitation, any principal, interest, fees, costs, expenses and other amount,
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.
"French Security Documents" means the documents listed on Schedule 2 that
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Crown Euroco is the pledgor under.
"Global Participation Agreement" means the Global Participation and
Proceeds Sharing Agreement dated as of February 26, 2003 among the Bank Agent,
Citicorp North America, Inc., as Administrative Agent, the Second Priority Notes
Trustee, the Third Priority Notes Trustee, the Euro Collateral Agent on behalf
of the Euro Secured Parties and the U.S. Collateral Agent (as defined in the
U.S. Intercreditor and Collateral Agency Agreement) on behalf of the U.S.
Secured Parties (as defined in the U.S. 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.
"Insolvency Event" means a court making a winding-up order or an order for
the dissolution or liquidation of an Intercompany Creditor or a liquidator or
administrator or equivalent (but not an administrator, receiver, manager or
equivalent appointed by the holder of a Lien) is appointed to an Intercompany
Creditor.
"Intercompany Creditors" means those Euro Pledgors or their subsidiaries
that are creditors in relation to any Intercompany Debt.
"Intercompany Debt" means any money or liabilities now or in the future
owing by any Euro Pledgor or its subsidiaries to any Intercompany Creditor
together with all accrued interest and related costs, charges and expenses.
"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, (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.
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"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.
"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, Crown Euroco or any Euro Pledgor or any of
their 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 Crown Euroco or any Euro Pledgor or any
of their subsidiaries under the Bankruptcy Law (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.
"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 Collateral" shall mean the collective reference to all
Principal Properties and Restricted Securities.
"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.
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"Restricted Secured Indebtedness" shall mean, at any time, the portion of
the Obligations constituting Exempted Indebtedness that is equal to the maximum
aggregate amount of Exempted Indebtedness that may be secured at such time
without causing any Existing Public Debt to be required to be equally and
ratably secured.
"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 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 Crown Euroco
and the Euro Pledgors under the Second Priority Notes Documents and (ii) the
Obligations of Crown Euroco and the Euro Pledgors 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.
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"Third Priority Agents" means, collectively, the Third Priority Notes
Trustee and any Additional Third Priority Indebtedness Representative.
"Third Priority Indebtedness" means (i) the Obligations of Crown Euroco and
the Euro Pledgors under the Third Priority Notes Documents and (ii) the
Obligations of Crown Euroco and the Euro Pledgors 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 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 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.
"U.S. Intercreditor and Collateral Agency Agreement" means the
Intercreditor and Collateral Agency Agreement dated as of February 26, 2003
among Citicorp North America, Inc., as U.S. Collateral Agent, Citicorp North
America, Inc., as administrative agent, Citibank International plc, as 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.
Section 2. Appointment as Euro Collateral Agent.
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The Bank Agent, 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,
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by such signing, irrevocably and unconditionally appoints, Citicorp Trustee
Company Limited to serve as collateral agent and representative of each such
Euro Secured Party under each of the Euro Security Documents (in such capacity,
together with its successors in such capacity, the "Euro Collateral Agent") and
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irrevocably and unconditionally authorizes the Euro Collateral Agent to act as
agent for the Euro Secured Parties for the purpose of executing and delivering,
on behalf of all such Euro Secured Parties, the Euro Security Documents and the
Global Participation Agreement and any other documents or instruments related
thereto or necessary or, as determined by the Euro Collateral Agent (acting on
the instructions of the Requisite Obligees), desirable to perfect the Liens
granted to the Euro Collateral Agent thereunder and, subject to the provisions
of this Agreement, for the purpose of enforcing the Euro Secured Parties' rights
in respect of the Euro Collateral and the obligations of the Euro Pledgors under
the Euro Security Documents, and for the purpose of, or in connection with,
releasing the obligations of the Euro Pledgors under the Euro Security
Documents.
Without limiting the generality of the foregoing, the Euro Collateral Agent
is further hereby appointed as agent for each of the Euro Secured Parties to
hold the Liens on the Euro Collateral granted pursuant to the Euro Security
Documents with, subject to Section 3, sole authority to exercise remedies under
the Euro Security Documents. The Euro Collateral Agent is hereby authorized to
act as mortgagee under all mortgages, beneficiary under all deeds of trust and
as Euro Secured Party under each applicable Euro Security Document and to follow
the instructions provided to it under this Agreement.
Section 3. Decisions Relating to Exercise of Remedies Vested in Requisite
--------------------------------------------------------------------
Obligees.
--------
(a) Except as otherwise provided in Section 3 of the Global Participation
Agreement, the Euro Collateral Agent shall exercise its rights, powers and
discretions under this Agreement, the Credit Agreement and the Euro Security
Documents or otherwise arising in relation to the Euro Collateral (including as
mandataire for purposes of the fifth paragraph of this subsection 3(a)) in
accordance with the written directions of the Requisite Obligees and any rights
or obligations of the Euro Collateral Agent hereunder or under the Credit
Agreement or Euro Security Documents shall be subject to the provisions of this
Section.
For purposes of this Agreement, "Requisite Obligees" means, for purposes of
------------------
directing the Euro Collateral Agent with respect to any of the foregoing actions
to be taken pursuant to any of the Euro Security Documents, the Bank Agent and
the Administrative Agent (as defined in the Credit Agreement); provided that if
--------
the Obligations and the First Priority U.S. 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 Euro 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
Euro 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 Euro Collateral Agent with respect to Additional
Bank Collateral, Requisite Obligees shall mean the Bank Agent and the
Administrative Agent (as defined in the Credit Agreement) in all cases.
-13-
The Euro Collateral Agent shall refrain from exercising any right, power or
discretion vested in it under this Agreement, the Credit Agreement or the Euro
Security Documents or otherwise arising in relation to the Euro Collateral
(including as mandataire for purposes of the fifth paragraph of this subsection
3(a)) unless and until instructed by the Requisite Obligees as to whether or not
such right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised (other than any
right, power or discretion which is reasonably incidental to any right, power or
discretion in relation to which it has received such instructions, in which case
the following sentence shall apply). The Euro Collateral Agent may, in the
exercise of its duties, obligations and responsibilities hereunder, do any act
or thing reasonably incidental, in the opinion of the Euro Collateral Agent, to
any instructions received by it from the Requisite Obligees which in its
discretion it deems advisable for the protection and benefit of the Euro Secured
Parties.
The Euro Collateral Agent has executed or shall be executing the Euro
Security Documents on behalf of the Euro Secured Parties upon the instructions
of the Euro Secured Parties and shall not be responsible or liable for the
legality, validity, effectiveness, genuineness, adequacy, enforceability or
sufficiency of any of the Euro Security Documents or the Euro Collateral.
For the avoidance of doubt, in particular with respect to the Euro
Collateral Agent's appointment as holder of the Liens on the Euro Collateral and
its ability to perfect and enforce, if required before a court of law, the Euro
Collateral, as agent for the Euro Secured Parties, for French law purposes only,
the Euro Collateral Agent shall be deemed to act as "mandataire" for the Euro
Secured Parties pursuant to Article 1984 et seq. of the French Code Civil. With
respect to any bankruptcy or insolvency proceeding of Crown Euroco in France,
the Euro Collateral Agent shall be deemed to represent the Requisite Obligees
only for purposes of making requests or demands in such proceeding.
The Euro Collateral Agent shall not be required to take any action
(including as mandataire for purposes of the fifth paragraph of this subsection
3(a)) that it believes is contrary to law or to the terms of this Agreement or
any of the Euro Security Documents or which it believes would subject it or any
of its officers, employees or directors to liability, and the Euro Collateral
Agent shall not be required to take any action under this Agreement or any of
the Euro Security Documents (including as mandataire for purposes of the fifth
paragraph of this subsection 3(a)), unless and until the Euro Collateral Agent
shall receive additional indemnities to its satisfaction from the Euro Secured
Parties (or the holders represented thereby) against any and all losses, costs,
expenses or liabilities in connection therewith.
-14-
(b) Each Euro Secured Party executing this Agreement or an acknowledgment
hereto agrees that (i) the Euro Collateral Agent shall act as the Requisite
Obligees may request (regardless of whether any Euro Secured Party or any holder
represented thereby agrees, disagrees or abstains with respect to such request),
(ii) the Euro 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 Euro Secured Party or any holder
represented thereby shall have any liability to any other Euro Secured Party or
any holder represented thereby for any such request. The Euro Collateral Agent
shall give prompt notice to all Euro 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 Euro Collateral Agent
to take any such action or the validity or enforceability under this Agreement
or the applicable Euro Security Document of the action so taken or create a
cause of action against the Euro Collateral Agent.
(c) Each Euro Secured Party agrees that unless and until such Euro Secured
Party is entitled to give direction to the Euro Collateral Agent pursuant to
Section 3(a) with respect to a Euro Security Document, the only right of such
-----------
Euro Secured Party under the Euro Security Documents is for the Obligations
owing to such Euro Secured Party to be secured by the Euro Collateral, and to
receive a share of the Proceeds of such Euro Collateral, if any, as and when
provided in the Euro 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 Euro
Collateral Agent for the benefit of the Euro Secured Parties in or on any
or all of the property or assets of Crown SNC, Crown Euroco and its
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
Euro Collateral,
(iii) whether any Euro Secured Party or any bailee or agent thereof
holds possession of any or all of the property or assets of any Euro
Pledgor,
(iv) the dating, execution or delivery of any agreement, document or
instrument granting any Euro Secured Party security interests and/or Liens
in or on any or all of the property or assets of any Euro Pledgor,
-15-
(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 any law or rule
governing the relative priorities of secured creditors,
(I) any security interest in any Euro Collateral heretofore or hereafter granted
or purported to be granted to secure any Obligations in respect of First
Priority Indebtedness pursuant to any Euro 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 Euro Collateral granted to secure any Obligations in respect of
Second Priority Indebtedness and Third Priority Indebtedness, and any Lien or
security interest in the Euro 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 Euro Collateral held by or for the benefit of holders
of First Priority Indebtedness; and (II) any security interest in any Euro
Collateral heretofore or hereafter granted to secure any Obligations in respect
of Second Priority Indebtedness pursuant to any Euro 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 Euro Collateral granted to secure any
Obligations in respect of Third Priority Indebtedness, and any Lien or security
interest in the Euro 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 Euro Collateral
held by or for the benefit of holders of Second Priority Indebtedness. With
respect to the French Security Documents, notwithstanding that the Euro
Collateral subject to the Lien thereunder (except for shares of Crown Euroco,
which will be pledged exclusively for the benefit of the First Lien
Indebtedness) secures the First Priority Indebtedness, Second Priority
Indebtedness and Third Priority Indebtedness on a pari passu basis, such Lien
shall be subject to the priorities described herein, including, without
limitation, Section 4.
---------
(e) The Euro Collateral Agent may at any time request directions from the
Requisite Obligees with respect to the Euro Security Documents as to any course
of action or other matter relating hereto or to any Euro Security Document.
Except as set forth in Section 3(f) below, directions given by Requisite
-------------
Obligees to the Euro Collateral Agent hereunder shall be binding on all Euro
Secured Parties for all purposes.
(f) (i) Subject to the application of Proceeds (as defined below) pursuant
to Section 4, (A) the Euro Collateral Agent may release the Lien of the Euro
---------
Security Documents against any portion or all of the Euro Collateral, to the
extent approved by the Requisite Obligees and (B) the Euro Collateral Agent
shall release the Lien of the Euro Security Documents against all of the Euro
Collateral and terminate the Euro Security Documents after all First Priority
Indebtedness and First Priority U.S. Obligations have been repaid in full and
the First Priority Indebtedness Documents have been terminated;
-16-
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 Euro Collateral by the Euro Collateral Agent hereunder in
connection with the enforcement of rights and exercise of remedies in respect of
such Euro Collateral) of Euro 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 holder of Second Priority
Indebtedness shall have delivered a notice to the Euro 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 Euro Collateral by the Euro
Collateral Agent hereunder in connection with the enforcement of rights and
exercise of remedies in respect of such Euro 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 Euro 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 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 Euro Collateral, or the sale or transfer of the
Equity Interests of any Euro Pledgor resulting in such Euro Pledgor ceasing to
be a Subsidiary, in each case, to any Person that is not a Euro Pledgor or
Affiliate and such sale or transfer is not prohibited by, in the case Euro
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
Euro Security Documents on such Euro Collateral, or the Lien of the Euro
Security Documents on the Euro Collateral owned by such Euro Pledgor, as
applicable, shall be released without recourse or warranty; provided, that the
--------
Euro Collateral Agent may request, and shall be entitled to rely upon, an
officers' certificate of such Euro 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 Euro Collateral Agent shall
execute and deliver to any Euro Pledgor, at such Euro Pledgor's expense, all
documents that such Euro 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 Euro Collateral under the Euro Security Documents shall be a
release of such Euro Collateral with respect to each Euro Secured Party and (y)
if any Lien in any Euro Collateral (other than Additional Bank Collateral)
previously released pursuant to Section 3(f)(i) is subsequently granted to any
--------------
Euro Secured Party and such Lien does not otherwise comply with Section 4.11 of
the Second Priority Notes Indenture and Secton 4.11 of the Third Priority Notes
Indenture, such Lien must be granted to all Euro Secured Parties, subject to the
relative priorities set forth in this Agreement.
-17-
(g) Each Euro Secured Party agrees that no Euro 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 Euro Security Document or to enforce any of
its rights in respect of the Euro Collateral (whether arising under any
Financing Document, operation of law, statute or otherwise), it being understood
that all rights and remedies under the Euro Security Documents shall be enforced
and executed exclusively by the Euro Collateral Agent pursuant to this
Agreement. Without limiting any of the foregoing, each Euro 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 Law with respect
to Crown Euroco or any of its subsidiaries, all other Euro Secured Parties shall
not contest any request by the Bank Agent or Euro Collateral Agent for relief
from any applicable Bankruptcy Law.
In the event of any dissolution, winding-up, liquidation or reorganization
of Crown Euroco or any of its 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 Crown Euroco or any of its subsidiaries or any other similar remedy or
otherwise) tending towards liquidation of the business and assets of Crown
Euroco or any of its respective subsidiaries, if any Second Priority Agent or
any Third Priority Agent do 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 Euro 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 Agent 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 Euro Secured Party (other than the U.K. Administrative Agent and the
Euro Collateral Agent) agrees that (i) it will provide notices (such notices to
be provided in writing and contemporaneously with any notice provided to Crown
Euroco or any Euro Pledgor) to each other Euro Secured Party and the Euro
Collateral Agent with respect to the acceleration of its respective
indebtedness; provided, however, that the failure to give any such notice to the
-----------------
other Euro Secured Party shall not affect the effectiveness of any notice given
to Crown Euroco or any Euro Pledgor 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 Euro Secured Parties will
not contest each other's security interest in and/or Liens granted for the
benefit of any or all of the Euro Secured Parties in or on any or all of the
property or assets of Crown Euroco and the Euro Pledgors and their respective
subsidiaries (including, without limitation, in respect of the Liens of the Bank
Agent 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.
-18-
Each Euro Secured Party waives any and all rights to (i) require the Euro
Collateral Agent to marshal any property or assets of the Euro Pledgors or to
resort to any of the property or assets of the Euro Pledgors in any particular
order or manner and (ii) require the Euro Collateral Agent to enforce any
guaranty or any security interest or Lien to secure the payment of any or all
Obligations as a condition precedent or concurrent to taking any action against
or with respect to the Euro 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 Agent on behalf of the Lenders and any Bank Related Hedging
Exchanger and any Bank Related Cash Management Exchanger. Each Euro Secured
Party (other than the Bank Agent 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.
(i) Notwithstanding any provision of the Euro Security Documents, for so
long as any Existing Public Debt is outstanding and if any Euro Collateral
constitutes Restricted Collateral thereunder, then such Euro Collateral shall
not secure any Obligations constituting Exempted Indebtedness except to the
extent that such Obligations constitute Restricted Secured Indebtedness.
Furthermore, if any Euro Collateral constitutes Intercompany Debt that is
represented by 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.
(j) Notwithstanding anything to the contrary in this Agreement or the Euro
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 Euro Collateral under the Euro 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, the Second
Priority Indebtedness and the Third Priority Indebtedness shall be secured
equally and ratably (except in the case of Additional Bank Collateral which
shall only secure 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
Euro Collateral under the Euro Security Documents for so long as such Existing
Public Debt is so secured.
-19-
Section 4. Application of Proceeds.
-----------------------
(a) Any and all amounts actually received by the Euro Collateral Agent in
connection with the enforcement of the Euro Security Documents, including the
proceeds of any collection, sale or other disposition of the Euro Collateral or
any portion thereof (collectively, "Proceeds") shall be applied promptly by the
--------
Euro 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 Euro
Collateral Agent and its agents and counsel, and all expenses, liabilities
and advances made or incurred by the Euro Collateral Agent in connection
therewith and all amounts for which Euro Collateral Agent is entitled to
indemnification hereunder, and to the payment of all costs and expenses
paid or incurred by Euro 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 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
-20-
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 Euro Pledgor of such Euro
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 Euro 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 Euro 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 Euro
---------
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.
(b) (i) Any Proceeds received by the Euro 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 Euro Secured Party with
respect thereto that is then secured by the Euro Collateral giving rise to such
Proceeds shall receive payment of the same proportionate amount of all such
Obligations, (ii) any Proceeds received by the Euro 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 Euro Secured Party
with respect thereto that is then secured by the Euro 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 Euro 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 Euro Secured Party with
respect thereto that is then secured by the Euro 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 Euroco's or any of its subsidiaries'
obligations then due and payable
-21-
(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 Euro Collateral Agent on account of Proceeds received
by Euro Collateral Agent in respect of the Obligations under the Credit
Agreement shall be made to the Bank Agent for distribution by the Bank Agent to
the Lenders and other Euro 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 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 made to or on behalf of Crown Euroco
under the Credit Agreement shall be paid to the Bank Agent for the benefit of
the Lenders and other Euro Secured Parties under the Credit Agreement. All other
payments on account of Proceeds received by Euro 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 Euro 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 Agent and the
holders of First Priority Indebtedness and such Person shall promptly turn over
such proceeds to the Euro Collateral Agent (in the same form as received, with
any necessary non-recourse endorsement), for application (in the case of cash)
to, or as Euro 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 Euro 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).
-22-
(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 Agent or any holder of First Priority
Indebtedness is rescinded as a result of a proceeding or otherwise, 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 Euro Collateral Agent or the Bank Agent or holder of
First Priority Indebtedness to enforce the subordination of the Liens on Euro
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 SNC, Crown Euroco or any of their subsidiaries or by its failure to comply
with this Agreement. Without limiting the generality of the foregoing, the
rights of the Euro Collateral Agent and the Bank Agent 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 SNC, Crown Euroco or any of their subsidiaries, Bank Agent or holder of
First Priority Indebtedness, or any noncompliance by Crown SNC, Crown Euroco or
any of their subsidiaries, Bank Agent or holder of First Priority Indebtedness
with any agreement or obligation, regardless of any knowledge thereof which the
Euro Collateral Agent or the Bank Agent or holder of First Priority Indebtedness
may have or with which the Euro Collateral Agent or the Bank Agent 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 Euro Security Documents or the avoidance of the First Priority Indebtedness
or such Lien under the Bankruptcy Law or other applicable law (and all of the
provisions of this Agreement shall be applied as though there was 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 Euro Collateral Agent or the Bank
Agent or holder of First Priority Indebtedness,
-23-
(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 Euro Collateral Agent or the Bank Agent or holder of First
Priority Indebtedness of any right, power, privilege or remedy under or in
respect of any First Priority Indebtedness, the Euro Collateral or this
Agreement, (vi) any other action of the Euro Collateral Agent or the Bank Agent
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 each holder of Third Priority Indebtedness expressly waives (i) notice of
acceptance by the Euro Collateral Agent or the Bank Agent 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 Euro Collateral Agent or the Bank Agent 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
SNC, Crown Euroco or any of their 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 Agent 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 any holder of Third Priority Indebtedness to the Bank
Agent 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,
-24-
(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 SNC, Crown Euroco or any of their 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 SNC, Crown Euroco or any of their
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 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 SNC, Crown Euroco or any
of their 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 Euro 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 Euro Collateral Agent
-25-
(in the same form as received, with any necessary non-recourse endorsement), for
application (in the case of cash) to, or as Euro 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 Euro
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 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 Euro Collateral Agent or any Second Priority Agent or
holder of Second Priority Indebtedness to enforce the subordination of the Liens
on Euro Collateral securing all or any part of the Third Priority Indebtedness
shall be impaired by any act or failure to act by Crown SNC, Crown Euroco or any
of their subsidiaries or by its failure to comply with this Agreement. Without
limiting the generality of the foregoing, the rights of the Euro 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 SNC, Crown
Euroco or any of their subsidiaries, Second Priority Agent or holder of Second
Priority Indebtedness, or any noncompliance by Crown SNC, Crown Euroco or any of
their subsidiaries, Second Priority Agent or holder of Second Priority
Indebtedness with any agreement or obligation, regardless of any knowledge
thereof which the Euro Collateral Agent or Second Priority Agent or holder of
Second Priority Indebtedness may have or with which the Euro 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 the Lien created by the Euro Security Documents or the
avoidance of Second Priority Indebtedness or such Lien under the Bankruptcy Law
or other applicable law (and all of the provisions of this Agreement shall be
applied as though there was 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 Euro Collateral Agent or any Second Priority Agent or holder of
Second Priority Indebtedness,
-26-
(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 Euro 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 Euro Collateral or this Agreement, (vi) any other action of
the Euro 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 Euro 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 the 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 Euro 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 SNC, Crown Euroco or any of their 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 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,
-27-
(v) impose any additional fees or penalties upon Crown SNC, Crown Euroco or any
of their 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 SNC, Crown Euroco or any of their 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 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 SNC, Crown Euroco or any of their subsidiaries 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 Euro Collateral Agent proceeds to foreclose upon, collect,
sell or otherwise dispose of or take any other action with respect to the Euro
Collateral, or any portion thereof, or to enforce any Euro Security Document, or
proposes to take any other action pursuant to this Agreement or requests
instructions from the Euro Secured Parties as provided herein, upon the request
of the Euro Collateral Agent, each of the following Euro Secured Parties agrees
to provide promptly to the Euro Collateral Agent the following information:
(a) The Bank Agent on behalf of the Lenders and agents under the
Credit Agreement, by executing this Agreement, agrees to promptly from time
to time notify the Euro 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 Euro Collateral
Agent may specify, (ii) the current commitment of each Lender under the
Credit Agreement, and (iii) any payment received by the Bank Agent 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 Agent shall certify as to such amounts and the Euro Collateral
Agent shall be entitled to rely conclusively upon such certification.
-28-
(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 Euro
Collateral Agent of (i) the notional amount under such Bank Related Hedging
Agreement and the amount payable by Crown Euroco 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 to such amounts and
the Euro 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 Euro 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
Euro Collateral Agent shall be entitled to rely conclusively upon such
certification.
(d) Upon written request from the Euro Collateral Agent, the Second
Priority Notes Trustee, by executing this Agreement, agrees to promptly
notify the Euro 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 Euro 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
Euro Collateral Agent shall be entitled to rely conclusively upon such
certification.
-29-
(e) Upon written request from the Euro Collateral Agent, the Third
Priority Notes Trustee, by executing this Agreement, agrees to promptly
notify the Euro 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 Euro 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 Euro
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 signing an acknowledgment to this Agreement, agrees to
promptly from time to time notify the Euro 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 Euro
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 Euro 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 Euro 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 Euro 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 Euro Collateral Agent shall be entitled to rely
conclusively upon such certification.
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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 Euro Security Documents by executing
an acknowledgment in the form contained on the signature pages hereof, and by
delivering such executed acknowledgment to the Euro Collateral Agent, by which
such Bank Related Hedging Exchanger and 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 Euro
Security Documents by causing their Additional Second Priority Indebtedness
Representative to execute an acknowledgment in the form contained on the
signature pages hereof, and by delivering such executed acknowledgment to the
Euro 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 Euro
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
Euro 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 Euro Secured Party
acknowledges that the Euro Collateral Agent shall not be the trustee of any Euro
Secured Party. The Euro Collateral Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement or the Euro
Security Documents, and the Euro Collateral Agent shall not by reason of this
Agreement or the Euro Security Documents be a trustee for any Euro Secured Party
or have any other fiduciary obligation to any Euro Secured Party (including any
obligation under the Trust Indenture Act of 1939, as amended). The Euro
Collateral Agent shall not be responsible to any Euro 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
-31-
or any Lien under the Euro 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 Euro 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 Euro
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 (including as mandataire for purposes
of the fifth paragraph of subsection 3(a)), except for actions that are finally
judicially determined to have resulted from its or their own gross negligence or
willful misconduct.
(b) The Euro 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 on behalf of the proper person or persons, and
upon advice and statements of legal counsel (including counsel to Crown Euroco
or any of its subsidiaries), independent accountants and other experts selected
by the Euro Collateral Agent and shall in all cases be fully protected in acting
or refraining from acting so upon. Without limiting any rights of the Euro
Collateral Agent hereunder, the Euro 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 Euro Secured Parties.
(c) Each of Crown Euroco and each Euro Pledgor (collectively, the
"Indemnifying Parties") agrees, jointly and severally, to indemnify the Euro
---------------------
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 Euro Collateral Agent (including as mandataire for purposes of the
fifth paragraph of subsection 3(a)) in any way relating to or arising out of any
of this Agreement, the Euro 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 Euro Collateral
Agent.
(d) Except for action expressly required of the Euro Collateral Agent
hereunder, the Euro 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 Euro Security Documents (including as
mandataire for purposes of the fifth paragraph of subsection 3(a)) unless it
shall be further indemnified to its satisfaction by the Euro 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.
-32-
(e) Except as expressly provided herein and in the Euro Security Documents,
the Euro Collateral Agent shall have no duty to take any affirmative steps with
respect to the collection of amounts payable in respect of the Euro Collateral.
The Euro Collateral Agent shall incur no liability to any Euro Secured Party as
a result of any sale of any Euro Collateral at any private sale.
(f) (i) The Euro Collateral Agent may resign at any time by giving at least
5 days' notice thereof to the Euro Secured Parties (such resignation to take
effect as hereinafter provided) and the Euro Collateral Agent may be removed as
Euro Collateral Agent at any time by Requisite Obligees. In the event of such
resignation or removal of the Euro Collateral Agent, Requisite Obligees shall
thereupon have the right to appoint a successor Euro Collateral Agent. If no
successor Euro Collateral Agent shall have been so appointed by Requisite
Obligees and shall have accepted such appointment within 30 days after the
notice of the intent of the Euro Collateral Agent to resign, then the retiring
Euro Collateral Agent may, on behalf of the other Euro Secured Parties, appoint
a successor Euro Collateral Agent. Any successor Euro Collateral Agent appointed
pursuant to this clause (f)(i) shall be a commercial bank organized under the
------------
laws of a member state of the European Union and having a combined capital and
surplus of at least (euro)500,000,000.
(ii) Upon the acceptance of any appointment as Euro Collateral Agent
hereunder by a successor Euro Collateral Agent, such successor Euro Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring or removed Euro Collateral Agent, and the
retiring or removed Euro Collateral Agent shall thereupon be discharged from its
duties and obligations hereunder and under the Global Participation Agreement
and the Euro Security Documents. After any retiring or removed Euro Collateral
Agent's resignation or removal hereunder as Euro 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
Euro Collateral Agent.
(iii) In no event shall the Euro Collateral Agent or any Euro Secured Party
be liable or responsible for any funds or investments of funds held by any Euro
Pledgor or any affiliates thereof.
(g) Each of the Euro Secured Parties understands and acknowledges that the
Euro 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.
-33-
Section 10. Intercompany Debt.
-----------------
(a) If an Event of Default has occurred and is continuing:
(i) No Euro Pledgor will, and each Euro Pledgor will procure that none
of its subsidiaries will, make any payment or distribution of any kind
whatsoever in respect or on account of Intercompany Debt; and
(ii) no Euro Pledgor will, and each Euro Pledgor will procure that
none of its subsidiaries will, create or permit to subsist, any lien over
any asset of the Euro Borrower or any or its subsidiaries or give or permit
to subsist any guarantee in respect of any part of Intercompany Debt,
in each case without the prior written consent of the Bank Agent.
(b) Prior to the date that all Obligations are repaid in full, no Euro
Pledgor may, and each Euro Pledgor will procure that none of its Subsidiaries
may, take Enforcement Action in relation to Intercompany Debt without the prior
written consent of the Euro Collateral Agent. If, however, an Event of Default
has occurred, no Euro Pledgor will, and each Euro Pledgor will procure that none
of its Subsidiaries will, take such Enforcement Action in relation to the
Intercompany Debt as it is directed by the Bank Agent to take.
(c) If at any time prior to the date that all Obligations are repaid in
full:
(i) any Intercompany Creditor receives or recovers a payment or
distribution of any kind whatsoever in respect of or on account of any
Intercompany Debt which is not permitted by paragraph (a); or
(ii) any Intercompany Creditor receives or recovers proceeds pursuant
to any Enforcement Action;
the recipient or beneficiary of such payment, distribution, set-off or
combination will (and if the recipient or beneficiary is not a party to this
Agreement the relevant Euro Pledgor which is its parent company will procure
that it will) promptly pay all amounts received and distributions received to
the Euro Collateral Agent for application under Section 4 and, pending such
payment or handover, will hold these amounts and distributions in trust for the
Euro Collateral Agent.
(d) The Intercompany Creditors will not in any circumstances described in
Section 10 be subrogated to the rights of the Secured Parties or any Liens
arising under the Euro Security Documents.
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Section 11. 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
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 11(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 Euro Collateral Agent with the written
consent of Requisite Obligees, except that any modification or waiver (i)
adversely affecting a Euro 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 (as opposed to all Secured
Parties), in each case, shall require the written consent of the agent or
representative representing such Euro Secured Party; provided, however, that,
------------------
notwithstanding the foregoing, the written consent of the Euro Secured Parties
shall not be required with respect to amendments, modifications or waivers
necessary to permit the incurrence of additional indebtedness secured by the
Euro Collateral and entitled to the benefits of the Euro Security Documents
insofar as the foregoing is not prohibited by the Financing Documents benefiting
such Euro 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 Euroco or any
of its subsidiaries shall require the written consent of Crown Euroco.
(c) This Agreement shall be binding upon and inure to the benefit of the
Euro Collateral Agent, each Euro 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 Agent, the Second
Priority Notes Trustee and the Third Priority Notes Trustee listed on the
signature pages hereof and the Euro Collateral Agent upon the execution of this
Agreement by each of the Bank Agent, Second Priority Notes Trustee and the Third
Priority Notes Trustee and the Euro Collateral Agent and the delivery of each
such Person's counterparts to the Euro Collateral Agent.
-35-
(f) If any Euro 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 Euro Secured Party under the Financing Documents.
(g) Each of the parties hereto authorizes the Euro Collateral Agent to
execute and file on its behalf all such further documents and instruments, and
authorizes the Euro 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 necessary to give full effect to all
provisions contained in this Agreement. Each Euro 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 Euro Secured Parties (other than the Bank Agent 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 Euro Secured Parties (other than the Bank Agent 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 Euro 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 Euroco and the Euro Pledgors shall pay to the Euro Collateral
Agent upon demand the amount of any and all reasonable expenses of the Euro
Secured Parties and the Euro Collateral Agent, including, without limitation,
the reasonable fees and expenses of counsel for the Euro Secured Parties and the
Euro 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 Euro 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 Euro Security Documents.
-36-
(l) The Euro Collateral Agent may demand specific performance of this
Agreement. Each of the Euro 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 Euro 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 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
11(m).
(n) Anything contained in this Agreement to the contrary notwithstanding,
each Euro Secured Party shall no longer be a party from and after such time as
all of the Obligations owing to such Euro Secured Party and secured by any of
the Euro 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.
-37-
(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 11. 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 11(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.
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-
CITIBANK INTERNATIONAL, plc,
as Bank 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 TRUSTEE COMPANY
LIMITED,
as Euro Collateral Agent,
By: /s/ Xxxx X. X'Xxxx
Name: Xxxx X. X'Xxxx
Title: Vice President
Notice Address:
With a copy to:
CROWN EUROPEAN HOLDINGS SA
By: /s/ Xxxx X. Xxxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Administrateur
CROWN CORK COMPANY BELGIUM NV
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Xxxxxxxx
XXXXX XXXX & XXXX XXXXXX INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Secretary
889273 ONTARIO INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Secretary
XXXXXX-AMS (CANADA), INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Secretary
XXXXXX PLASTIK CANADA, INC.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Secretary
Z.P. France
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
Societe de Participations
CarnaudMetalbox
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Authorized Person
Astra Plastique S.A.S.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
POLYFLEX S.A.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
La Francaise de Developpement de
la Boite Boissons (Sofreb)
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company France SA
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
ENVASES GENERALES CROWN S.A. DE
C.V.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Legal Representative
XXXXXX PLASTIK DE MEXICO S.A. DE C.V.
By: /s/ Xxxxxxx Xxxx G.
Name: Xxxxxxx Xxxx G.
Title: Legal Representative
CROWN CORK AG SWITZERLAND
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN XXXXXX XX (SWITZERLAND)
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
BMW XXXXX (SWITZERLAND)
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN UK HOLDINGS LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN CORK COMPANY LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX OVERSEAS
LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN CORK & SEAL FINANCE PLC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX PLC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
UNITED CLOSURES AND PLASTICS PLC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX ENGINEERING PLC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
MASSMOULD HOLDINGS LIMITED
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
SPECIALTY PACKAGING (UK) PLC
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Group UK
Limited
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX DEUTSCHLAND
GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
CROWN XXXXXX GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
XXXXXXX VERPACKUNGEN
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
XXXXXXX VERSCHLUSSE GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
XXXXXXX & XXXXX
METALLVERPACKUNGEN
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
CARNAUDMETALBOX
NAHRUNGSMIT TELDOSEN
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
XXXXXX PLASTIK GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
RAKU RASTATT GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
XXXXXX ENGINEERING GMBH
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
CROWN CORK & SEAL DEUTSCHLAND
HOLDINGS GmbH
(formerly Xxxxxxxxx GmbH)
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Attorney
CROWN DEVELOPPEMENT S.N.C.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Attorney
