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EXECUTION COPY
U.S. $1,000,000,000
(Euro)50,000,000
CREDIT AGREEMENT
Dated as of February 26, 2003
among
CROWN CORK & SEAL AMERICAS, INC.,
as the U.S. Borrower,
CROWN EUROPEAN HOLDINGS S.A.,
as the Euro Borrower,
THE SUBSIDIARY BORROWERS NAMED HEREIN,
CROWN HOLDINGS, INC.,
CROWN INTERNATIONAL HOLDINGS, INC.
and
CROWN CORK & SEAL COMPANY, INC.,
as Parent Guarantors,
THE LENDERS REFERRED TO HEREIN
and
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
and
CITIBANK INTERNATIONAL plc,
as U.K. Administrative Agent
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DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent
--------------------
DEUTSCHE BANK SECURITIES INC.
and
XXXXXXX XXXXX XXXXXX INC.,
as Joint Lead Arrangers and Joint Bookrunners
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ABN AMRO INCORPORATED, as Joint Bookrunner
and
ABN AMRO BANK N.V., as Documentation Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
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DEFINITIONS
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SECTION 1.01. Defined Terms...............................................1
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SECTION 1.02. Classification of Loans and Borrowings.....................50
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SECTION 1.03. Terms Generally............................................50
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ARTICLE II
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THE CREDITS
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SECTION 2.01. Credit Commitments.........................................50
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SECTION 2.02. Procedure for Borrowing....................................53
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SECTION 2.03. Conversion and Continuation Options for Loans..............54
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SECTION 2.04. [Reserved].................................................55
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SECTION 2.05. Optional and Mandatory Prepayments of Loans;
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Repayments of Term B Loans............................55
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SECTION 2.06. Letters of Credit..........................................60
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SECTION 2.07. Repayment of Loans; Evidence of Debt.......................65
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SECTION 2.08. Interest Rates and Payment Dates...........................66
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SECTION 2.09. Computation of Interest....................................67
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SECTION 2.10. Fees.......................................................67
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SECTION 2.11. Termination, Reduction or Adjustment of Commitments........69
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SECTION 2.12. Inability to Determine Interest Rate; Unavailability
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of Deposits; Inadequacy of Interest Rate..............70
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SECTION 2.13. Pro Rata Treatment and Payments............................73
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SECTION 2.14. Illegality.................................................74
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SECTION 2.15. Requirements of Law........................................75
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SECTION 2.16. Taxes......................................................76
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SECTION 2.17. Indemnity..................................................79
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SECTION 2.18. Change of Lending Office...................................79
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SECTION 2.19. Sharing of Setoffs.........................................80
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SECTION 2.20. Assignment of Commitments Under Certain Circumstances......80
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ARTICLE III
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REPRESENTATIONS AND WARRANTIES
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SECTION 3.01. Organization, etc..........................................81
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SECTION 3.02. Due Authorization, Non-Contravention, etc..................81
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SECTION 3.03. Corporate Structure........................................82
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SECTION 3.04. Government Approval, Regulation, etc.......................82
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SECTION 3.05. Validity, etc..............................................82
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SECTION 3.06. Financial Information......................................82
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SECTION 3.07. No Material Adverse Change.................................83
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SECTION 3.08. Litigation.................................................83
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SECTION 3.09. Compliance with Laws and Agreements........................83
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SECTION 3.10. Subsidiaries...............................................83
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SECTION 3.11. Ownership of Properties....................................83
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SECTION 3.12. Taxes......................................................85
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SECTION 3.13. Pension and Welfare Plans..................................85
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SECTION 3.14. Environmental Warranties...................................85
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SECTION 3.15. Regulations U and X........................................87
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SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma
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Balance Sheets and Projections........................87
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SECTION 3.17. Insurance..................................................88
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SECTION 3.18. Labor Matters..............................................88
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SECTION 3.19. Solvency...................................................88
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SECTION 3.20. Securities.................................................89
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SECTION 3.21. Indebtedness Outstanding...................................90
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SECTION 3.22. Security Documents.........................................90
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SECTION 3.23. Anti-Terrorism Laws........................................92
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SECTION 3.24. Board of Euro Borrower.....................................93
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ARTICLE IV
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CONDITIONS
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SECTION 4.01. Effective Date.............................................93
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SECTION 4.02. Conditions to Each Credit Event...........................102
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ARTICLE V
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AFFIRMATIVE COVENANTS
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SECTION 5.01. Financial Information, Reports, Notices, etc..............103
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SECTION 5.02. Compliance with Laws, etc.................................107
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SECTION 5.03. Maintenance of Properties.................................107
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SECTION 5.04. Insurance.................................................107
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SECTION 5.05. Books and Records; Visitation Rights......................108
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SECTION 5.06. Environmental Covenant....................................108
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SECTION 5.07. Information Regarding Collateral..........................110
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SECTION 5.08. Existence; Conduct of Business............................111
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SECTION 5.09. Performance of Obligations................................111
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Page
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SECTION 5.10. Casualty and Condemnation.................................111
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SECTION 5.11. Guarantees; Pledge of Additional Collateral...............111
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SECTION 5.12. Further Assurances........................................113
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SECTION 5.13. Use of Proceeds; Funding of Collateral Account............113
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SECTION 5.14. Payment of Taxes..........................................114
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SECTION 5.15. Equal Security for Loans and Notes........................114
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SECTION 5.16. Cash Accounts.............................................114
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SECTION 5.17. Board of Euro Borrower....................................115
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SECTION 5.18. Post-Closing Obligations..................................115
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SECTION 5.19. Hedging Arrangements......................................117
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SECTION 5.20. Excluded Companies........................................117
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ARTICLE VI
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NEGATIVE COVENANTS
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SECTION 6.01. Indebtedness; Certain Equity Securities...................118
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SECTION 6.02. Liens.....................................................123
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SECTION 6.03. Fundamental Changes.......................................126
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SECTION 6.04. Investments, Loans, Advances, Guarantees
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and Acquisitions.....................................127
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SECTION 6.05. Asset Sales...............................................128
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SECTION 6.06. Sale and Leaseback Transactions...........................130
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SECTION 6.07. Sale or Discount of Receivables...........................130
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SECTION 6.08. Restricted Payments.......................................130
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SECTION 6.09. Transactions with Affiliates..............................130
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SECTION 6.10. Restrictive Agreements....................................131
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SECTION 6.11. Amendments or Waivers of Certain Documents;
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Prepayments of Indebtedness..........................132
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SECTION 6.12. Limitations on Premiums...................................133
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SECTION 6.13. Interest Expense Coverage Ratio...........................134
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SECTION 6.14. Total Leverage Ratio......................................134
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SECTION 6.15. First Lien Leverage Ratio.................................135
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SECTION 6.16. Fixed Charge Coverage Ratio; Cash Flow Ratios.............136
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SECTION 6.17. Capital Expenditures......................................137
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SECTION 6.18. Limitation on Activities of Parent Guarantors, Crown
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Developpement SNC, European Delaware LLCs
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and Euro Borrower....................................137
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SECTION 6.19. Anti-Terrorism Law........................................138
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SECTION 6.20. Principal Property........................................138
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SECTION 6.21. Embargoed Person..........................................138
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SECTION 6.22. Anti-Money Laundering.....................................139
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ARTICLE VII
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EVENTS OF DEFAULT
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SECTION 7.01. Listing of Events of Default..............................139
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SECTION 7.02. Action if Bankruptcy......................................142
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SECTION 7.03. Action if Other Event of Default..........................142
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SECTION 7.04. Action Relating to U.S. Borrower or Euro Borrower Only....143
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SECTION 7.05. Action if Event of Termination............................143
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SECTION 7.06. Sharing Agreement.........................................144
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ARTICLE VIII
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THE AGENTS
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SECTION 8.01. The Agents................................................145
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ARTICLE IX
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GUARANTEE
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SECTION 9.01. Guarantee of Each of the Parent Guarantors................147
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SECTION 9.02. Guarantee of the Euro Borrower............................148
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SECTION 9.03. Amendments, etc. with Respect to the Applicable
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Obligations..........................................149
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SECTION 9.04. Guarantee Absolute and Unconditional......................149
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SECTION 9.05. Reinstatement.............................................150
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SECTION 9.06. Payments..................................................151
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SECTION 9.07. Independent Obligations...................................151
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ARTICLE X
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MISCELLANEOUS
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SECTION 10.01. Notices..................................................151
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SECTION 10.02. Survival of Agreement....................................153
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SECTION 10.03. Binding Effect...........................................153
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SECTION 10.04. Successors and Assigns...................................154
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SECTION 10.05. Expenses; Indemnity......................................158
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SECTION 10.06. Right of Setoff..........................................159
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SECTION 10.07. Applicable Law...........................................160
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SECTION 10.08. Intercreditor Agreements, Security Documents
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and Sharing Agreement................................160
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SECTION 10.09. Waivers; Amendment.......................................161
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SECTION 10.10. Interest Rate Limitation.................................164
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SECTION 10.11. Entire Agreement.........................................164
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SECTION 10.12. WAIVER OF JURY TRIAL.....................................165
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SECTION 10.13. Severability.............................................165
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SECTION 10.14. Counterparts.............................................165
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SECTION 10.15. Headings 1
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SECTION 10.16. Jurisdiction; Consent to Service of Process..............165
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SECTION 10.17. Judgments Relating to Euro Borrower......................166
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SECTION 10.18. Confidentiality..........................................167
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SECTION 10.19. SSB Direct Website Communications........................168
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SECTION 10.20. Euro Collateral Agent as Joint Creditor..................170
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EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Borrowing Request
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D Form of Compliance Certificate
EXHIBIT E Form of U.S. Indemnity, Subrogation and Contribution Agreement
EXHIBIT F-1 Form of Term B Note
EXHIBIT F-2 Form of Revolving Note
EXHIBIT G-1 Form of Officer's Certificate of the U.S. Borrower
EXHIBIT G-2 Form of Officer's Certificate of the Euro Borrower/Subsidiary
Borrower
EXHIBIT G-3 Form of Officer's Certificate of Subsidiary Loan Party
EXHIBIT G-4 Form of Chief Financial Officer's Certificate
EXHIBIT H Form of U.S. Guarantee Agreement
EXHIBIT I-1 Form of Shared Pledge Agreement
EXHIBIT I-2 Form of U.S. Bank Pledge Agreement
EXHIBIT J-1 Form of U.S. Security Agreement
EXHIBIT J-2 Form of U.S. Retained Collateral Account Agreement
EXHIBIT K Form of Non-U.S. Guarantee Agreement
EXHIBIT L Form of Opinion of Dechert
EXHIBIT M-1 Form of U.S. Local Counsel Opinions
EXHIBIT M-2 Form of Opinion of Gide Loyrette Nouel
EXHIBIT M-3 Form of Opinion of Jeantet Associes
EXHIBIT N Form of Mortgage
EXHIBIT O Form of Real Property Officers' Certificate
EXHIBIT P-1 Form of U.S. Intercreditor Agreement
EXHIBIT P-2 Form of Euro Intercreditor Agreement
EXHIBIT P-3 Form of Receivables Intercreditor Agreement
EXHIBIT Q Form of Landlord Subordination
EXHIBIT R Form of Sharing Agreement
EXHIBIT S Form of Crown Developpement SNC Parent Guarantee
EXHIBIT T Form of Solvency Opinion
EXHIBIT U Structure Memorandum
EXHIBIT V Form of Intercompany Note
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EXHIBIT W Mandatory Cost Formula
EXHIBIT X Form of Euro Collateral Account Agreements
EXHIBIT Y Form of Euro Retained Collateral Account Agreement
SCHEDULE 1.01(b) Subsidiary Borrowers
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.02 Immaterial Subsidiaries
SCHEDULE 3.10 Subsidiaries
SCHEDULE 3.11(b) Leased and Owned Real Property
SCHEDULE 3.11(g) Principal Properties
SCHEDULE 3.17 Insurance
SCHEDULE 3.21(a) Indebtedness
SCHEDULE 3.21(b) Existing Non-U.S. Facilities
SCHEDULE 3.21(c) Existing Factoring Facilities
SCHEDULE 3.22(e) Mortgage Filing Offices
SCHEDULE 3.22(f) Euro Collateral Documents
SCHEDULE 3.22(g) Required Actions -- Intercompany Collateral
SCHEDULE 4.01(b) Domestic and Non-U.S. Local Counsel
SCHEDULE 4.01(i)(A) Mortgaged Properties
SCHEDULE 4.01(i)(C) Title Insurance Amounts
SCHEDULE 4.01(j) Non-U.S.Post-Closing Required Actions
SCHEDULE 4.01(k) Intercompany Notes/French Intercompany Loan Agreements
SCHEDULE 4.01(l) Intercompany Collateral Documents
SCHEDULE 5.13 Term B Loan Use of Proceeds
SCHEDULE 5.18(a)(i) U.S. Post-Closing Required Actions -- Leasehold Mortgages
SCHEDULE 5.18(a)(ii) U.S. Post-Closing Required Actions -- Foreign Stock
Pledges
SCHEDULE 5.18(a)(iii) U.S. Post-Closing Required Actions -- Landlord
Subordination Agreements
SCHEDULE 5.18(b)(i) Non-U.S. Post-Closing Required Actions -- Mortgages
SCHEDULE 5.18(b)(ii) Non-U.S. Post-Closing Required Actions -- Stock Pledges
SCHEDULE 6.02 Permitted Liens
SCHEDULE 6.04 Existing Investments
SCHEDULE 6.05(viii) Permitted Divestitures
SCHEDULE 6.09(vi) Agreements Excepted from Transactions with Affiliates
SCHEDULE 6.10 Existing Restrictions
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CREDIT AGREEMENT (this "Agreement") dated as of February 26, 2003, among
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CROWN CORK & SEAL AMERICAS, INC., a Pennsylvania corporation (the "U.S.
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Borrower"), CROWN EUROPEAN HOLDINGS S.A., a corporation organized under the laws
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of France (the "Euro Borrower"), each of the subsidiary borrowers referred to
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herein (the "Subsidiary Borrowers" and together with the U.S. Borrower and the
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Euro Borrower, the "Borrowers"), CROWN CORK & SEAL COMPANY, INC. ("CCSC"), CROWN
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HOLDINGS, INC. ("Crown Holdings") and CROWN INTERNATIONAL HOLDINGS, INC. ("Crown
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International"), as Parent Guarantors, the financial institutions listed on
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Schedule 2.01, as such Schedule may be from time to time supplemented and
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amended (the "Lenders"), and CITICORP NORTH AMERICA, INC., as administrative
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agent (in such capacity, the "Administrative Agent") for the Term B Dollar
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Lenders and Revolving Dollar Lenders, CITIBANK INTERNATIONAL plc, as
administrative agent (in such capacity, the "U.K. Administrative Agent") for the
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Term B Euro Lenders and the Revolving Euro Lenders, DEUTSCHE BANK SECURITIES
INC. ("DBSI"), as syndication agent (in such capacity, the "Syndication Agent"),
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DEUTSCHE BANK SECURITIES INC. and XXXXXXX XXXXX XXXXXX INC. ("SSBI"), as joint
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lead arrangers and joint bookrunners (the "Joint Lead Arrangers"), ABN AMRO BANK
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N.V., as documentation agent (in such capacity, the "Documentation Agent"), and
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ABN AMRO INCORPORATED, as joint bookrunner.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
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have the meanings specified below:
"ABR Borrowing" means a Borrowing comprised of ABR Loans.
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"ABR Loan" means any Loan denominated in Dollars and bearing interest at
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the Alternate Base Rate in accordance with the provisions of Article II.
"Additional Collateral" has the meaning assigned to such term in Section
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5.11.
"Additional Cost Rate" has the meaning assigned to such term in Exhibit W.
-------------------- ---------
"Additional Second Lien Notes" means (i) additional Second Lien Notes
-------------------------------
issued after the Effective Date under the Second Lien Notes Indenture and (ii)
other second lien notes issued by the Euro Borrower, the terms of which notes
(a) do not provide for any scheduled repayment, mandatory redemption or sinking
fund obligation prior to the final maturity date of the Second Lien Notes, (b)
the Liens securing such notes are subordinated to the Liens securing the
Obligations to the same extent as set forth in the Security Documents and
Intercreditor Agreements,
-2-
(c) do not restrict, limit or adversely affect the ability of any Loan Party or
any of its Subsidiaries to perform its obligations under any of the Loan
Documents, (d) the covenants, events of default, subsidiary guaranties and other
terms of which, taken as a whole, are not more restrictive to the Euro Borrower
and Crown Holdings and their Subsidiaries than those in the Second Lien Notes
(as reasonably determined by the Administrative Agent), (e) no Subsidiary of
Crown Holdings is an obligor under such notes that is not an obligor under the
Second Lien Notes and (f) are customary for similar offerings by issuers with
credit ratings comparable to that of the Euro Borrower and Crown Holdings.
"Additional Third Lien Notes" means (i) additional Third Lien Notes issued
----------------------------
after the Effective Date under the Third Lien Notes Indenture and (ii) other
third lien notes issued by the Euro Borrower, the terms of which notes (a) do
not provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to the final maturity date of the Third Lien Notes, (b) the
Liens securing such notes are subordinated to the Liens securing the Obligations
to the same extent as set forth in the Security Documents and Intercreditor
Agreements, (c) do not restrict, limit or adversely affect the ability of any
Loan Party or any of its Subsidiaries to perform its obligations under any of
the Loan Documents, (d) the covenants, events of default, subsidiary guaranties
and other terms of which, taken as a whole, are not more restrictive to the Euro
Borrower and Crown Holdings and their Subsidiaries than those in the Third Lien
Notes (as reasonably determined by the Administrative Agent), (e) no Subsidiary
of Crown Holdings is an obligor under such notes that is not an obligor under
the Third Lien Notes and (f) are customary for similar offerings by issuers with
credit ratings comparable to that of the Euro Borrower and Crown Holdings.
"Additional U.S. Collateral" has the meaning assigned to such term in
----------------------------
Section 5.11(b).
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
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any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" has the meaning assigned to such term in the
---------------------
preamble hereto.
"Administrative Questionnaire" means an Administrative Questionnaire in the
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form of Exhibit A.
"Affiliate" of any Person means any other Person which, directly or
---------
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan).
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A Person shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise;
provided, however, that notwithstanding the foregoing, for purposes of Section
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10.04, an "Affiliate" shall be a Person engaged in the business of banking or
buying or investing in loans who is controlled by, or under common control with,
a Lender.
"Agent Fees" has the meaning assigned to such term in Section 2.10(c).
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"Agents" means the Administrative Agent, the U.K. Administrative Agent and
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each Collateral Agent.
"Aggregate Dollar Revolving Credit Exposure" means the aggregate amount of
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the Revolving Dollar Lenders' Revolving Dollar Credit Exposures.
"Aggregate Euro Revolving Credit Exposure" means the aggregate amount of
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the Revolving Euro Lenders' Revolving Euro Credit Exposures.
"Aggregate Revolving Credit Exposure" means the sum of the Aggregate Dollar
-----------------------------------
Revolving Credit Exposure and the Dollar Equivalent of the Aggregate Euro
Revolving Credit Exposure.
"Agreement" has the meaning assigned to such term in the preamble hereto.
---------
"Agreement Currency" has the meaning assigned to such term in Section
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10.17(b).
"Alternate Base Rate" means for any day, a rate per annum equal to the
---------------------
highest of (a) the Administrative Agent's Base Rate in effect on such day, (b)
0.5% per annum above the latest three-week moving average of secondary market
morning offering rates in the United States for three-month certificates of
deposit of major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if any such day is not a
Business Day, on the next succeeding Business Day) for the three-week period
ending on the next previous Friday by the Issuing Bank on the basis of such
rates reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by the Issuing
Bank from three New York certificate of deposit dealers
-4-
of recognized standing selected by the Administrative Agent, in either case
adjusted to the nearest 0.25% or, if there is no nearest 0.25%, to the next
higher 0.25%, and (c) the Federal Funds Rate in effect on such day plus 1/2 of
1%. Any change in the Alternate Base Rate due to a change in the Base Rate, the
Certificate of Deposit Rate or the Federal Funds Rate shall be effective as of
the opening of business on the effective day of such change in the Base Rate,
the Certificate of Deposit Rate or the Federal Funds Rate, respectively.
"Anti-Terrorism Law" has the meaning assigned to such term in Section
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3.23(a).
"Applicable Agent" means (a) with respect to any Loan, Borrowing or Letter
----------------
of Credit denominated in Dollars, the Administrative Agent and (b) with respect
to any Loan or Borrowing denominated in Euros or Pounds Sterling, the U.K.
Administrative Agent.
"Applicable Creditor" has the meaning assigned to such term in Section
--------------------
10.17(b).
"Applicable Currency" has the meaning assigned to such term in Section
--------------------
2.12(a).
"Applicable Rate" means, for any day, the applicable rate per annum set
----------------
forth in the table below: (i) under the caption "ABR Revolving Dollar Spread,"
in the case of ABR Revolving Dollar Loans, (ii) under the caption "ABR Term B
Dollar Spread," in the case of ABR Term B Dollar Loans, (iii) under the caption
"Eurocurrency Revolving Loan Spread," in the case of Eurocurrency Loans that are
Revolving Loans, and (iv) under the caption "Eurocurrency Term B Loan Spread,"
in the case of Eurocurrency Loans that are Term B Loans:
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ABR ABR Eurocurrency Eurocurrency
Revolving Term B Revolving Term B
Dollar Spread Dollar Spread Loan Spread Loan Spread
------------- ------------- ----------- -----------
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3.00% 3.25% 4.00% 4.25%
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"Asbestos Payment" means any payment in cash (or other consideration)
-----------------
actually made by or on behalf of Crown Holdings or any Subsidiary in respect of
any liability related to asbestos or any actual or threatened claim, action or
proceeding related to asbestos (including any settlement of any thereof). For
avoidance of doubt, deferred payments shall only constitute Asbestos Payments
when made.
"Asset Sale" means any direct or indirect sale, transfer, lease, conveyance
----------
or other disposition by Crown Holdings or any of its Subsidiaries of any of its
property or assets, including any sale or issuance of any Equity Interests of
any Subsidiary, except (a) sales and dispositions
-5-
permitted by Sections 6.05(i), (ii), (iii), (iv), (v) and (vi), and (b) any such
transaction or series of transactions which, if an Asset Sale, would not
generate Net Proceeds in excess of $2.0 million (or, when taken together with
all other such transactions, in excess of $10.0 million in any twelve-month
period).
"Assignment and Acceptance" means an assignment and acceptance entered into
-------------------------
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 10.04(b)), and accepted by the Administrative Agent, in the
form of Exhibit C or such other form as shall be approved by the Administrative
---------
Agent.
"Authorized Officer" means, with respect to any Loan Party, those of its
-------------------
officers whose signature and incumbency has been certified to the Administrative
Agent and the Lenders pursuant to Section 4.01(d) or any successor thereto.
"Available Dollar Revolving Credit Commitment" means as to any Revolving
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Dollar Lender, at any time of determination, an amount equal to such Revolving
Dollar Lender's Revolving Dollar Credit Commitment at such time minus such
-----
Revolving Dollar Lender's Revolving Dollar Credit Exposure at such time.
"Available Euro Revolving Credit Commitment" means, as to any Revolving
---------------------------------------------
Euro Lender, at any time of determination, an amount equal to such Revolving
Euro Lender's Revolving Euro Credit Commitment at such time minus the Dollar
Equivalent of such Revolving Euro Lender's Revolving Euro Credit Exposure at
such time.
"Bank" shall have the meaning assigned to such term in the UCC.
----
"Bank Related Cash Management Agreement" means agreements of Crown Holdings
--------------------------------------
or any of its Subsidiaries arising from treasury, depository and cash management
services provided by one or more counterparties that are the Administrative
Agent, the U.K. Administrative Agent or a Lender or an Affiliate thereof at the
time that such Bank Related Cash Management Agreement was entered into in
connection with this Agreement.
"Bank Related Debt" means obligations under Hedging Agreements and Bank
-----------------
Related Cash Management Agreements owed to counterparties that are the
Administrative Agent, the U.K. Administrative Agent or a Lender or any Affiliate
thereof at the time such Hedging Agreement or Bank Related Cash Management
Agreement was entered into to the extent permitted hereunder.
"Base Amount" has the meaning assigned to such term in Section 6.17.
-----------
"Base Rate" means the rate of interest per annum publicly announced from
---------
time to time by the Administrative Agent as its base rate in effect at its
principal office in New York City (the Base Rate not being intended to be the
lowest rate of interest charged by the Administrative Agent
-6-
in connection with extensions of credit to debtors) (any change in such rate
announced by the Administrative Agent shall take effect at the opening of
business on the day specified in the public announcement of such change).
"Board" means the Board of Governors of the Federal Reserve System of the
-----
United States.
"Borrowers" has the meaning assigned to such term in the preamble hereto.
---------
"Borrowing" means a Loan or group of Loans to one Borrower of the same
---------
Class and Type and denominated in a single currency (except as provided in
Section 2.12(b)) made (including through a conversion or continuation) by the
applicable Lenders on a single date and as to which a single Interest Period is
in effect.
"Borrowing Date" means any Business Day specified in a notice pursuant to
---------------
Section 2.02 as a date on which the relevant Borrower requests Loans to be made
hereunder.
"Borrowing Request" has the meaning assigned to such term in Section
------------------
2.02(a).
"Business Day" means a day of the year on which banks are not required or
-------------
authorized to close in New York and (a) with respect to any Loan denominated in
Euros, any such day for (i) payments or purchases of Euros, a TARGET Business
Day and (ii) all other purposes, including the giving and receiving of notices,
a TARGET Business Day on which banks are generally open for business in Xxxxxx,
Xxxxxxx, Xxxxxxxxx, Xxxxxxx and in any other principal financial center as the
U.K. Administrative Agent may from time to time determine for this purpose, and
(b) with respect to all notices (except with respect to general matters not
relating directly to funding), determinations and fundings in connection with,
and payments of principal and interest on, Eurocurrency Loans, any day which is
a day for trading by and between banks in deposits of the applicable currency
for such Loans in the interbank eurocurrency market. For purposes of this
definition, a "TARGET Business Day" is a day when the Trans-European Automated
-------------------
Real-time Gross Settlement Express Transfer System, or any successor thereto, is
open for business.
"Capital Expenditures" means, for any period and with respect to any
---------------------
Person, (a) any and all expenditures made by such Person or any of its
Subsidiaries in such period for assets added to or reflected in its property,
plant and equipment accounts or other similar capital asset accounts or
comparable items or any other capital expenditures that are, or should be, set
forth as "additions to plant, property and equipment" on the consolidated
financial statements of such Person prepared in accordance with GAAP, whether
such asset is purchased for cash or financed as an account payable or by the
incurrence of Indebtedness, accrued as a liability or otherwise, and (b) all
Capital Lease Obligations of such Person and its Subsidiaries.
-7-
"Capital Lease Obligations" means, with respect to any Person, all monetary
-------------------------
or financial obligations of such Person and its Subsidiaries under any leasing
or similar arrangement conveying the right to use real or personal property, or
a combination thereof, which, in accordance with GAAP, would or should be
classified and accounted for as capital leases, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date on
which such lease may be terminated by the lessee without payment of a penalty.
"Cash In Flow" means, with respect to any Person and during any period, all
------------
cash actually received by such Person during such period on an unconsolidated
basis (whether by dividend, interest payment or otherwise), plus the amount by
----
which working capital during such period decreased (i.e., the decrease in
----
Consolidated Current Assets (excluding cash) minus Consolidated Current
-----
Liabilities of such Person on an unconsolidated basis), minus the amount by
-----
which working capital during such period increased (i.e., the increase in
----
Consolidated Current Assets (excluding cash) minus Consolidated Current
-----
Liabilities of such Person on an unconsolidated basis).
"Cash Interest Expense" means, for any period and with respect to any
-----------------------
Person, Consolidated Interest Expense of such Person and its Subsidiaries for
such period, less the sum of, to the extent included in Consolidated Interest
Expense, (a) Interest Expense actually "paid in kind" in that period, (b) the
amortization of any financing fees paid by, or on behalf of, such Person or any
of its Subsidiaries, and (c) the amortization of debt discounts, if any.
"Cash Out Flow" means, with respect to any Person and during any period,
-------------
all items of cash actually expended by such Person during such period on an
unconsolidated basis (including, without limitation, any Investments in
Subsidiaries or any other Person).
"CCSC" has the meaning assigned to such term in the preamble hereto.
----
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
------
Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response, Compensation and
-------
Liability Information System List.
"Change in Control" means (a) the acquisition of ownership, directly or
-----------------
indirectly (including, without limitation, through the issuance, sale or
exchange of Equity Interests, a merger or consolidation or otherwise),
beneficially or of record, by any Person or group (within the meaning of the
Exchange Act and the rules of the SEC thereunder as in effect on the Effective
Date) of Equity Interests representing more than 35% of either the aggregate
ordinary voting power or the aggregate equity value represented by the issued
and outstanding Equity Interests of Crown Holdings, (b) occupation of a majority
of the seats
-8-
(other than vacant seats) on the board of directors of Crown Holdings by Persons
who were neither (i) nominated by the board of directors of Crown Holdings nor
(ii) appointed by directors so nominated, (c) Crown Holdings shall fail to own
beneficially or of record all of the outstanding Equity Interests of CCSC, (d)
CCSC shall fail to own beneficially or of record all of the outstanding Equity
Interests, directly or indirectly, of the U.S. Borrower and the Euro Borrower
(other than director's qualifying shares), (e) the occurrence of a "Change of
Control" as defined under the Second Lien Notes Indenture, (f) the occurrence of
a "Change of Control" as defined under the Third Lien Notes Indenture or (g) the
occurrence of a "Change of Control" as defined in any agreement governing
Additional Second Lien Notes, Additional Third Lien Notes or any other
Refinancing Plan Indebtedness.
"Charges" has the meaning assigned to such term in Section 10.10.
-------
"Class" when used in reference to any Loan or Borrowing, refers to whether
-----
such Loan, or the Loans comprising such Borrowing, are Revolving Dollar Loans,
Revolving Euro Loans, Term B Dollar Loans or Term B Euro Loans, and when used in
reference to any Commitment, refers to whether such Commitment is a Revolving
Dollar Credit Commitment, Revolving Euro Credit Commitment, Term B Dollar
Commitment or Term B Euro Commitment, and when used in reference to any Lender,
refers to whether such Lender is a Revolving Dollar Lender, a Revolving Euro
Lender, a Term B Dollar Lender or a Term B Euro Lender.
"Code" means the Internal Revenue Code of 1986, as amended from time to
----
time.
"Collateral" means any and all "Collateral," "Mortgaged Property" or "Trust
----------
Property," as defined in any applicable U.S. Security Document, and any other
Property pledged pursuant to any other Security Document.
"Collateral Accounts" means the Dollar Collateral Account and the Euro
--------------------
Collateral Account.
"Collateral Agents" means, collectively, the U.S. Collateral Agent and the
-----------------
Euro Collateral Agent.
"Commitment" means a Revolving Dollar Credit Commitment, a Revolving Euro
----------
Credit Commitment, a Term B Dollar Commitment or a Term B Euro Commitment, or
any combination thereof (as the context requires).
"Commitment Fee" has the meaning assigned to such term in Section 2.10(a).
--------------
"Commitment Fee Daily Average Amount" has the meaning assigned to such term
-----------------------------------
in Section 2.10(a).
-9-
"Commitment Fee Percentage" means 1.00% per annum; provided that (i) such
------------------------- --------
amount shall be reduced to 0.50% per annum with respect to the Revolving Dollar
Credit Commitment in any applicable period, if the Commitment Fee Average Daily
Amount for such applicable period in respect of the Revolving Dollar Facility
equals an amount that is 2/3 or more of the Total Dollar Revolving Credit
Commitment, and such fee shall be reduced to 0.50% per annum with respect to the
Revolving Euro Credit Commitment in any applicable period, if the Commitment Fee
Average Daily Amount for such applicable period in respect of the Revolving Euro
Facility equals an amount that is 2/3 or more of the Total Euro Revolving Credit
Commitment, respectively, and (ii) such amount shall be reduced to 0.75% per
annum with respect to the Revolving Dollar Credit Commitment in any applicable
period, if the Commitment Fee Average Daily Amount for such applicable period in
respect of the Revolving Dollar Facility equals an amount that is more than 1/3
and less than 2/3 of the Total Dollar Revolving Credit Commitment, and such fee
shall be reduced to 0.75% per annum with respect to the Revolving Euro Credit
Commitment in any applicable period, if the Commitment Fee Average Daily Amount
for such applicable period in respect of the Revolving Euro Facility equals an
amount that is more than 1/3 and less than 2/3 of the Total Euro Revolving
Credit Commitment.
"Commitment Fee Termination Date" has the meaning assigned to such term in
--------------------------------
Section 2.10(a).
"Commitment Percentage" means (i) with respect to any Revolving Dollar
----------------------
Lender at any time, the percentage of the Total Revolving Dollar Credit
Commitment represented by such Lender's Revolving Dollar Credit Commitment and
(ii) with respect to any Revolving Euro Lender at any time, the percentage of
the Total Revolving Euro Credit Commitment represented by such Lender's
Revolving Euro Credit Commitment. If the Revolving Credit Commitments have
terminated or expired, the Commitment Percentage shall be determined based upon
the Revolving Credit Commitments most recently in effect, giving effect to any
assignments.
"Commodity Account" has the meaning assigned to such term in the UCC.
-----------------
"Communications" has the meaning assigned to such term in Section 10.19.
--------------
"Compliance Certificate" has the meaning assigned to such term in Section
-----------------------
5.01(b) and shall be substantially in the form of Exhibit D.
---------
"Conduit Financing Arrangement" has the meaning assigned to such term in
-------------------------------
Section 2.16.
"Consolidated Current Assets" means, with respect to any Person as at any
----------------------------
date of determination, the total assets of such Person and its consolidated
Subsidiaries which should properly be classified as current assets on a
consolidated balance sheet of such Person and its consolidated Subsidiaries in
accordance with GAAP.
-10-
"Consolidated Current Liabilities" means, with respect to any Person as at
---------------------------------
any date of determination, the total liabilities of such Person and its
consolidated Subsidiaries which should properly be classified as current
liabilities (other than the current portion of any Loans) on a consolidated
balance sheet of such Person and its consolidated Subsidiaries in accordance
with GAAP.
"Consolidated EBITDA" means, for any period and with respect to any Person,
-------------------
Consolidated Net Income of such Person and its Subsidiaries for such period plus
(a) without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) Consolidated Interest Expense of such
Person and its Subsidiaries for such period, (ii) consolidated income tax
expense of such Person and its Subsidiaries for such period, (iii) all amounts
attributable to depreciation and amortization of such Person and its
Subsidiaries for such period, (iv) any non-cash deductions made in determining
Consolidated Net Income of such Person and its Subsidiaries for such period
(including, without limitation, non-cash deductions relating to translation and
foreign exchange adjustments) (other than any deductions which (or should)
represent the accrual of a reserve for the payment of cash charges in any future
period or amortization of a prepaid cash expense that was paid in a prior
period) (it being understood that (x) reserves for pension or health care
benefits shall not be so "added back" to Consolidated Net Income and (y)
reserves for Asbestos Payments shall be "added back" except that reserves for
Asbestos Payments in excess of $50 million in any fiscal year shall not be so
"added back" to Consolidated Net Income under this clause (iv)), and (v) actual
cash realized relating to the sale of Real Property or equipment in connection
with restructuring activities, minus (b) any non-cash additions to Consolidated
-----
Net Income of such Person and its Subsidiaries for such period (including,
without limitation, non-cash additions relating to translation and foreign
exchange adjustments), minus (c) without duplication and to the extent included
-----
in determining such Consolidated Net Income of such Person and its Subsidiaries,
any extraordinary gains (or plus extraordinary non-cash losses) for such period
and any gains (or plus losses) realized in connection with any Asset Sale of
such Person and its Subsidiaries during such period, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, for any Test Period, the
-----------------------------------------
ratio of (a) Consolidated EBITDA of Crown Holdings and its Subsidiaries for such
Test Period, minus Capital Expenditures in such Test Period of Crown Holdings
and its Subsidiaries, to (b) the sum of (i) Net Cash Interest Expense of Crown
Holdings and its Subsidiaries for such Test Period plus (ii) amount of scheduled
mandatory payments on account of principal of Indebtedness of Crown Holdings and
its Subsidiaries (other than Refinanced Public Debt or Retained Public Debt) for
the next succeeding four quarters (excluding payments required to be made by
Section 2.05(d)(v)); provided that with respect to any succeeding four quarters
--------
-11-
that include December 31, 2008, the scheduled payments of principal in respect
of Term B Loans shall be deemed not to exceed an aggregate of $22,500,000 and
(euro)2,500,000 plus (iii) Asbestos Payments during such Test Period. For Test
Periods ending prior to March 31, 2004, Cash Interest Expense shall be
determined on a pro forma basis to give effect to the Transactions as if they
had occurred on the first day of such Test Period.
"Consolidated Interest Expense" means, with respect to any Person and its
-------------------------------
Subsidiaries on a consolidated basis for any period, the sum of (a) gross
interest expense for such period, including (i) the amortization of debt
discounts, (ii) the amortization of all fees (including fees with respect to
Hedging Agreements) payable in connection with the incurrence of Indebtedness to
the extent included in interest expense, (iii) the portion of any payments or
accruals with respect to Capital Lease Obligations allocable to interest expense
and (iv) interest expense or fees associated with any Permitted Receivables
Financing, and (b) capitalized interest. For purposes of the foregoing, gross
interest expense shall be determined after giving effect to any net payments
made by such Person and its Subsidiaries with respect to Hedging Agreements.
Breakage costs in connection with repaying and terminating the Existing Credit
Facility on the Effective Date shall not be considered Consolidated Interest
Expense.
"Consolidated Net Income" means, for any period and for any Person, the net
-----------------------
income or loss of such Person and its Subsidiaries for such period determined on
a consolidated basis in accordance with GAAP; provided that there shall be
--------
excluded for any such Person therefrom (i) the income or loss of any Person
(other than consolidated Subsidiaries of such Person) in which any other Person
(other than such Person or any of its Subsidiaries) has a joint interest, except
to the extent of the amount of dividends or other distributions actually paid to
such Person or any of its Subsidiaries by such Person during such period, (ii)
the cumulative effect of a change in accounting principles during such period,
(iii) any net after-tax income (loss) from discontinued operations and any net
after-tax gains or losses on disposal of discontinued operations, (iv) the
income or loss of any Person accrued prior to the date it becomes a Subsidiary
or is merged into or consolidated with such Person or any of its Subsidiaries or
that Person's assets are acquired by such Person or any of its Subsidiaries and
(v) gains and losses from the early extinguishment of Refinanced Public Debt or
Retained Public Debt.
"Constar Agreements" means all agreements and documentation entered into by
------------------
CCSC or its Affiliates, on the one hand, and Constar International Inc. or its
Subsidiaries and Affiliates, on the other hand (including, without limitation,
tax sharing, intellectual property, leases, administrative services and other
matters), as described in the Registration Statement on Form S-1, in connection
with the Constar Disposition.
"Constar Disposition" means the sale by CCSC in a registered public
--------------------
offering of all of the common stock of Constar International Inc. consummated in
November 2002.
-12-
"Contested Collateral Lien Conditions" means with respect to a Lien (a) any
------------------------------------
proceeding instituted contesting such Lien shall conclusively operate to stay
the sale or forfeiture of any portion of the Collateral on account of such Lien;
and (b) in the event the liabilities secured by such Lien shall exceed $5.0
million, at the option and upon request of the applicable Collateral Agent,
Crown Holdings or the applicable Subsidiary shall either obtain a bond or
maintain cash reserves, in either case, in an amount sufficient to pay and
discharge such Lien and the applicable Collateral Agent's reasonable estimate of
all interest and penalties related thereto.
"Control" means the possession, directly or indirectly, of the power to
-------
direct or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise, and
"controlling" and "controlled" have meanings correlative thereto.
----------- ----------
"Control Agreement" has the meaning assigned to such term in the U.S.
------------------
Security Agreement.
"Credit Event" has the meaning assigned to such term in Section 4.02.
------------
"Crown Developpement SNC Parent Guarantee" means the guarantee agreement,
-----------------------------------------
dated as of the date hereof, in the form of Exhibit S, pursuant to which Crown
---------
Developpement SNC shall guarantee all the Obligations of the Euro Borrower and
pledge all of the Equity Interests it owns in the Euro Borrower.
"Crown Holdings" has the meaning assigned to such term in the preamble
---------------
hereto.
"Crown International" has the meaning assigned to such term in the preamble
-------------------
hereto.
"Currency Equivalent" means the Dollar Equivalent or the Euro Equivalent or
-------------------
the Sterling Equivalent, as the case may be, of the Applicable Currency.
"Debt Incurrence" has the meaning assigned thereto in Section 2.05(d)(ii).
---------------
"Default" means any Event of Default, any Event of Termination and any
-------
event or condition which upon notice, lapse of time or both would constitute an
Event of Default or Event of Termination.
"Denomination Date" means, in relation to any Euro Borrowing or Pound
------------------
Sterling Borrowing, the date that is three Business Days before the date such
Euro Borrowing or Pound Sterling Borrowing is made.
"Deposit Account" has the meaning assigned to such term in the UCC.
---------------
-13-
"Destruction" means any and all damage to, or loss or destruction of, or
-----------
loss of title to, all or any portion of the Property of Crown Holdings or any of
its Subsidiaries.
"Documentation Agent" shall have the meaning assigned to such term in the
--------------------
preamble hereto.
"Dollar Borrowing" means a Borrowing of Loans in Dollars.
----------------
"Dollar Collateral Account" means the collateral account or sub-account
---------------------------
established and maintained by Citicorp North America, Inc. in its name as U.S.
Collateral Agent for the benefit of the Lenders, in accordance with the
provisions of the U.S. Security Agreement.
"Dollar Equivalent" means at the time of determination thereof (a) with
------------------
respect to Dollars, the amount in Dollars and (b) with respect to any amount in
Euros or Pounds Sterling, the equivalent of such amount in Dollars determined by
using the rate of exchange quoted by Citibank International plc in London at
11:00 a.m. (London time) on the date of determination to prime banks in London
for the spot purchase in the London foreign exchange market of such amount of
Dollars with Euros or Pound Sterling, as applicable. Notwithstanding the
foregoing, for purposes of initially determining the Dollar Equivalent of any
Euro Borrowing or Pound Sterling Borrowing, such determination shall be made on
the Denomination Date of such Euro Borrowing or Pound Sterling Borrowing.
"Dollars" or "$" means the lawful money of the United States of America.
------- -
"Domestic Subsidiary" means any Wholly Owned Subsidiary of Crown Holdings
--------------------
that is not a Non-U.S. Subsidiary.
"Effective Date" means the date on which the conditions specified in
---------------
Section 4.01 are satisfied (or waived in accordance with Section 10.09).
"Environment" means ambient air, surface water and groundwater (including
-----------
potable water, navigable water and wetlands), the land surface or subsurface
strata, natural resources such as flora and fauna, or as otherwise defined in
any Environmental Law.
"Environmental Claim" means any written accusation, allegation, notice of
-------------------
violation, claim, demand, order, directive, cost recovery action or other cause
of action by, or on behalf of, any Governmental Authority or any other Person
for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the Environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases);
-14-
(b) exposure to any Hazardous Material; (c) the presence, use, handling,
transportation, storage, treatment or disposal of any Hazardous Material; or (d)
the violation or alleged violation of any Environmental Law or Environmental
Permit.
"Environmental Laws" means any and all applicable treaties, laws (including
------------------
common law), rules, regulations, codes, ordinances, orders, decrees, judgments,
injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the Environment, preservation or
reclamation of natural resources, the management, Release or threatened Release
of, or exposure to, any Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
------------------------
(including, but not limited to, any liability for damages, natural resource
damage, costs of environmental remediation, administrative oversight costs,
fines, penalties or indemnities), of Crown Holdings or any of its Subsidiaries
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials or (d) the Release or threatened Release of any Hazardous Materials
into the Environment.
"Environmental Permit" means any permit, approval, authorization,
----------------------
certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"Equity Interests" means shares of capital stock, partnership interests,
-----------------
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person.
"Equity Issuance" has the meaning assigned thereto in Section 2.05(d)(i).
---------------
"Equity Rights" means all securities convertible into or exchangeable for
-------------
Equity Interests and all warrants, options or other rights to purchase or
subscribe for any Equity Interests, whether or not presently convertible,
exchangeable or exercisable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as the
-----
same may be amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
---------------
that, together with any Loan Party, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event," as defined in Section 4043
-----------
of ERISA or the regulations issued thereunder, with respect to a Pension Plan
-15-
(other than an event for which the 30-day notice period is waived by
regulation); (b) the existence with respect to any Pension Plan of an
"accumulated funding deficiency" (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, the failure to make by its due
date a required installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to a Multiemployer
Plan; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of
ERISA of an application for a waiver of the minimum funding standard with
respect to any Pension Plan; (d) the incurrence by any Loan Party or ERISA
Affiliate of any liability under Title IV of ERISA with respect to any Pension
Plan; (e) the receipt by any Loan Party or ERISA Affiliate from the PBGC or a
plan administrator of any notice relating to an intention to terminate any
Pension Plan, to appoint a trustee to administer any Pension Plan, or to take
any other action with respect to a Pension Plan that could result in material
liability to a Loan Party or a Subsidiary, or the occurrence of any event or
condition which could reasonably be expected to constitute grounds under ERISA
for the termination of, or the appointment of a trustee to administer, any
Pension Plan; (f) the incurrence by any Loan Party or ERISA Affiliate of any
liability with respect to the withdrawal or partial withdrawal from any Pension
Plan or Multiemployer Plan; (g) the receipt by a Loan Party or ERISA Affiliate
of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the making of
any amendment to any Pension Plan which could result in the imposition of a lien
or the posting of a bond or other security; or (i) the occurrence of a nonexempt
prohibited transaction (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) which could result in liability to a Loan Party or any of
the Subsidiaries.
"Euro" means the base unit of currency among participating European Union
----
countries.
"Euro Acceleration" has the meaning assigned to such term in Section 7.04.
-----------------
"Euro Borrower" has the meaning assigned to such term in the preamble
--------------
hereto.
"Euro Borrower Cash Flow Ratio" means, for any Test Period, the ratio of
------------------------------
(a) Cash In Flow of the Euro Borrower to (b) Cash Out Flow of the Euro Borrower.
For Test Periods prior to March 31, 2004, Cash In Flow and Cash Out Flow shall
be calculated by reference to actual Cash In Flow and Cash Out Flow after the
Effective Date on an annualized basis.
"Euro Borrowing" means a Borrowing of Loans in Euros.
--------------
"Euro Collateral" means all Collateral securing only the Euro Obligations.
---------------
-16-
"Euro Collateral Accounts" means the collateral accounts or sub-accounts
--------------------------
established and maintained by Citibank, N.A. and pledged to the Euro Collateral
Agent for the benefit of the Term B Euro Lenders and the Revolving Euro Lenders,
in accordance with the provisions of the Euro Collateral Account Agreements.
"Euro Collateral Account Agreements" means (a) the Account Bank Agreement,
-----------------------------------
dated as of February 26, 2003, between the Euro Borrower and Citibank, N.A. and
(b) the Account Bank Agreement, dated as of February 26, 2003, between Crown
Cork & Seal Finance plc and Citibank, N.A., in the forms attached hereto as
Exhibit X.
---------
"Euro Collateral Agent" means Citicorp Trustee Company Limited, in its
-----------------------
capacity as collateral agent under the Euro Security Documents and the Euro
Intercreditor Agreement, and any of its successors or assigns.
"Euro Equivalent" means at the time of determination thereof (a) with
----------------
respect to Euros, the amount in Euros and (b) with respect to any amount in
Dollars, the equivalent of such amount in Euros determined by using the rate of
exchange quoted by Citibank International plc in London at 11:00 a.m. (London
time) on the date of determination to prime banks in London for the spot
purchase in the London foreign exchange market of such amount of Euros with
Dollars.
"Euro Intercreditor Agreement" means the intercreditor agreement and
------------------------------
collateral agency agreement, substantially in the form of Exhibit P-2, dated as
-----------
of February 26, 2003, among the U.K. Administrative Agent, Xxxxx Fargo Bank
Minnesota, National Association, as trustee for holders of the Second Lien
Notes, Xxxxx Fargo Bank Minnesota, National Association, as trustee for the
holders of the Third Lien Notes, and Citicorp Trustee Company Limited, as Euro
Collateral Agent, and the other persons who may become party thereto from time
to time.
"Euro Loan" means a loan made in Euros pursuant to this Agreement.
---------
"Euro Loan Parties" means (a) the Euro Borrower, (b) each Subsidiary
-------------------
Borrower and (c) each Subsidiary of the Euro Borrower designated on Schedule
--------
1.01(b) as a subsidiary guarantor or which becomes such a subsidiary guarantor
-------
pursuant to the provisions of Section 5.11.
"Euro Obligations" means, with respect to the Euro Borrower and any
-----------------
Subsidiary Borrower, the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans made to the Euro Borrower and any
Subsidiary Borrower and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganizations or like
proceeding, relating to the Euro Borrower and any Subsidiary Borrower, whether
or not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans made to the Euro Borrower and any Subsidiary Borrower
-17-
and all other obligations and liabilities of the Euro Borrower and any
Subsidiary Borrower to any Agent or to any Lender, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this Agreement
or any other document made, delivered or given in connection herewith, whether
on account of principal, interest, fees, indemnities, costs or expenses
(including, without limitation, all fees, charges and disbursements of counsel
(including the allocated costs of internal counsel) that are to be paid by the
Euro Borrower and any Subsidiary Borrower to any Agent or to any Lender pursuant
to any Loan Document) or otherwise.
"Euro Retained Public Debt Collateral Account" means the Euro collateral
-----------------------------------------------
account established and maintained by Citibank, N.A., and pledged to the Euro
Collateral Agent into which Excess Cash Flow and Net Proceeds of Equity
Issuances of Crown Holdings may be deposited pursuant to the terms of this
Agreement and Retained Euro Collateral Account Agreement, which collateral
account shall only secure the Euro Obligations under this Agreement.
"Euro Retained Public Debt Collateral Account Agreement" means the Account
-------------------------------------------------------
Bank Agreement between the Euro Borrower and Citibank, N.A., substantially in
the form attached hereto as Exhibit Y.
---------
"Euro Security Documents" means each security agreement, mortgage or other
-----------------------
document or instrument identified on Schedule 3.22(f) executed and delivered for
----------------
the benefit of the Euro Collateral Agent on behalf of the Term B Euro Lenders
and the Revolving Euro Lenders, the Euro Intercreditor Agreement and each other
security agreement, mortgage or other instrument or document executed and
delivered pursuant to Section 5.11 to secure any of the Euro Obligations. The
Euro Security Documents shall also include the French Delegations of Dividends,
the Euro Collateral Account Agreements and the Euro Retained Collateral Account
Agreements.
"Euro Subsidiary Loan Parties" means each Subsidiary of the Euro Borrower
------------------------------
designated on Schedule 1.01(b) as a subsidiary guarantor or Subsidiary Borrower
----------------
or which becomes a subsidiary guarantor pursuant to the provisions of Section
5.11.
"Eurocurrency Borrowing" means a Borrowing comprised of Eurocurrency Loans.
----------------------
"Eurocurrency Loan" means any Loan bearing interest at a rate determined by
-----------------
reference to the Adjusted LIBO Rate in accordance with the provisions of Article
II.
"Eurocurrency Revolving Credit Borrowing" means a Revolving Credit
--------------------------------------------
Borrowing comprised of Eurocurrency Loans.
-18-
"Eurocurrency Term B Borrowing" means a Term B Borrowing comprised of
-------------------------------
Eurocurrency Loans.
"European Delaware LLCs" means each Subsidiary of the Euro Borrower that is
----------------------
a limited liability company organized under the laws of the State of Delaware.
"Event of Default" has the meaning assigned to such term in Section 7.01.
----------------
"Event of Termination" has the meaning assigned to such term in Section
---------------------
7.01.
"Excess Cash Flow" means, without duplication, for Crown Holdings and its
----------------
Subsidiaries for any period for which such amount is being determined:
(a) Consolidated Net Income of Crown Holdings and its Subsidiaries
adjusted to exclude any amount of gain that is both (x) included in
Consolidated Net Income and (y) results in Net Proceeds actually applied to
the prepayment of the Loans pursuant to Section 2.05(d), plus
(b) the amount of depreciation, amortization of intangibles, deferred
taxes and other non-cash expenses which, pursuant to GAAP, were deducted in
determining such Consolidated Net Income of Crown Holdings and its
Subsidiaries, plus
(c) the amount by which working capital for such period decreased
(i.e., the decrease in Consolidated Current Assets (excluding cash and
Permitted Investments) of Crown Holdings and its Subsidiaries minus
Consolidated Current Liabilities (excluding (A) changes in current
liabilities for borrowed money and (B) cash or Permitted Investments which
are Net Proceeds required to be applied to the prepayment of the Loans
pursuant to Section 2.05(d)) of Crown Holdings and its Subsidiaries from
the beginning to the end of such period), minus
(d) the amount by which working capital for such period increased
(i.e., the increase in Consolidated Current Assets (excluding cash and
Permitted Investments) of Crown Holdings and its Subsidiaries minus
Consolidated Current Liabilities (excluding (A) changes in current
liabilities for borrowed money and (B) cash or Permitted Investments which
are Net Proceeds required to be applied to the prepayment of the Loans
pursuant to Section 2.05(d)) of Crown Holdings and its Subsidiaries from
the beginning to the end of such period), minus
(e) the amount of Capital Expenditures of Crown Holdings and its
Subsidiaries that are paid other than from the proceeds of Borrowings in
such period, minus
(f) the amount of Asbestos Payments and cash payments in respect of
pension or health care benefit obligations of Crown Holdings and its
Subsidiaries that are actually paid in such period, minus
-19-
(g) payments of principal under the Term B Loans on the Installment
Payment Dates pursuant to Section 2.05(e) made during such period, minus
(h) optional prepayments of principal under the Term B Loans made
during such period, minus
(i) payments of principal in respect of Public Debt (other than that
described in clause (3), (4) or (5) of such definition) in excess of the
amounts withdrawn from the Retained Public Debt Collateral Accounts.
For purposes of the foregoing and without duplication, Consolidated Net
Income will exclude (x) all losses on the sale of capital assets or losses which
are out of the ordinary course of business and (y) all write-downs of capital
assets.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Excluded Asset Sale" has the meaning assigned to such term in Section
---------------------
2.05(d)(iii).
"Excluded Canadian Companies" means Anchor Cap & Closure Corporation of
-----------------------------
Canada, Ltd., Continental Can of Canada, Inc., Central States Can of Canada
Limited, 499555 Ontario Limited and 000000 Xxxxxx Limited, each a company
organized under the laws of Canada.
"Excluded Companies" means collectively the Excluded U.K. Companies and the
------------------
Excluded Canadian Companies.
"Excluded Debt Issuance" means any Indebtedness permitted to be incurred
----------------------
under Section 6.01(a) (other than Indebtedness in excess of (euro)25.0 million
permitted to be incurred under Section 6.01(a)(viii)).
"Excluded Equity Issuance" means the issuance of common stock (or options
--------------------------
to purchase common stock) by Crown Holdings (a) to directors, officers or
employees of Crown Holdings or any of its Subsidiaries, (b) in exchange for
Public Debt (other than the Public Debentures) and (c) in exchange for the
Public Debentures after the repayment or refinancing in full of all Refinanced
Public Debt and the Retained Public Debt.
"Excluded U.K. Companies" means CarnaudMetalbox Bevcan Plc, CarnaudMetalbox
-----------------------
Aerosols (UK) plc, Metalbox Employees Funds Trustee Limited, Metalbox Life Funds
Trustee Limited, Metalbox Pension Trustees Limited, CarnaudMetalbox Closures
plc, CMB Performance Plastics Limited, Metalbox Limited, CMB Bevcan Holdings
Limited, CMB Charities Limited, CMB Bottles and Closures Ltd, Xxxxxx Xxxxxx
Limited,
-20-
CMB Benevolent Fund Limited, Metgate Developments Limited, and The Can Makers
Limited, each a company organized under the laws of England and Wales.
"Executive Order" has the meaning assigned to such term in Section 3.23.
---------------
"Existing Credit Agreement" means the credit agreement by and among CCSC,
---------------------------
the subsidiary borrowers referred to therein, the lenders referred to therein
and JPMorgan Chase Bank (formerly The Chase Manhattan Bank), as administrative
agent, dated as of February 4, 1997, as amended and restated as of February 2,
2002 and August 5, 2002.
"Existing Factoring Facilities" means the existing factoring programs of
-------------------------------
the Euro Borrower and its subsidiaries in France, Belgium, South Africa and
Spain and having the amount outstanding under such facilities, in each case as
set forth on Schedule 3.21(c).
----------------
"Existing Non-U.S. Facilities" means the existing working capital
--------------------------------
facilities of the Non-U.S. Subsidiaries of the Euro Borrower or the U.S.
Borrower as of the Effective Date and having size and principal amount
outstanding under such facilities, in each case as set forth on Schedule
3.21(b).
"Facilities" has the meaning assigned to such term in Section 10.18(a).
----------
"Federal Funds Rate" means, for any day, the weighted average of the rates
------------------
(rounded upwards, if necessary, to the nearest 1/100th of 1%) on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the next succeeding Business Day by
the Federal Reserve Bank of New York; provided that (a) if the day for which
--------
such rate is to be determined is not a Business Day, the Federal Funds Rate for
such day shall be such rate for such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if such rate is
not so published for any day which is a Business Day, the Federal Funds Rate for
such day shall be the average of the quotations for the day of such transactions
received by the Administrative Agent from three federal funds brokers of
recognized standing selected by it.
"Fees" means the Commitment Fees, the LC Fees and the Agent Fees.
----
"Financial Officer" of any corporation, partnership or other entity means
------------------
the chief financial officer, the principal accounting officer, Treasurer or
Controller of such corporation, partnership or other entity.
"First Lien Indebtedness" means the outstanding amount of all Indebtedness
-----------------------
(without giving effect to clause (i) in the definition thereof) of Crown
Holdings or any of its Subsidiaries secured by (or that has a benefit of) a Lien
on any assets or properties of Crown Holdings or any of its Subsidiaries (other
than Indebtedness permitted to be incurred under Section 6.01(a) (ii), (iii) or
(v)). First Lien Indebtedness shall include (i) the amounts
-21-
outstanding under any Permitted Receivables Financing, (ii) the face amount of
any Letter of Credit (whether or not drawn), (iii) amounts outstanding under the
Existing Factoring Facilities and any extension, renewals, refinancings and
replacements thereof and (iv) any liability recorded in accordance with SFAS 133
which does not represent an actual obligation and for which an offsetting
derivative contract has been recorded in the financial statements in accordance
with GAAP (but, to the extent of and only to the extent, such liability exceeds
$50,000,000).
"First Lien Leverage Ratio" means, for any Test Period, the ratio of (a)
--------------------------
First Lien Indebtedness of Crown Holdings and its Subsidiaries as of the last
day of such Test Period to (b) Consolidated EBITDA of Crown Holdings and its
Subsidiaries for such Test Period.
"First Tier Subsidiary" means any Subsidiary of the Euro Borrower organized
---------------------
in England, Belgium, Canada, Germany, France, Mexico and Switzerland that,
directly or indirectly, owns all of the Equity Interests of the other
Subsidiaries of the Euro Borrower organized in the same jurisdiction.
"Fiscal Quarter" means any quarter of a Fiscal Year.
--------------
"Fiscal Year" means any period of twelve consecutive calendar months ending
-----------
on December 31; references to a Fiscal Year with a number corresponding to any
calendar year (e.g., the "2003 Fiscal Year") refer to the Fiscal Year ending on
December 31 occurring during such calendar year.
"French Delegations of Dividends" shall mean, with respect to a Subsidiary
--------------------------------
Loan Party organized in France, the delegations of dividends ("delegations de
---------------
dividendes") pertaining to dividends to be received by such Subsidiary Loan
----------
Party from all its subsidiaries organized under the laws of France in which it
holds Equity Interests, if any, in favor of the applicable Collateral Agent.
"French Intercompany Borrower" means each Subsidiary of the Euro Borrower
------------------------------
organized under the laws of France that executes and delivers a French
Intercompany Loan Agreement.
"French Intercompany Loan Agreement" means an agreement relating to a Loan
-----------------------------------
between the Euro Borrower and a Subsidiary of the Euro Borrower organized in
France.
"French Intercompany Loans" means (a) any intercompany loan made by the
---------------------------
Euro Borrower to a French Intercompany Borrower and represented by a French
Intercompany Loan Agreement and (b) the French Ongoing Loans, in each case as
set forth on Schedule 4.01(k).
----------------
-22-
"French Ongoing Loans" means that portion of the French Intercompany Loan
--------------------
Agreement between the Euro Borrower and Societe de Participations
CarnaudMetalbox S.A. that represents the ongoing loans made from time to time on
and after the Effective Date.
"GAAP" means generally accepted accounting principles in the United States
----
applied on a consistent basis.
"German Borrowers" means each Subsidiary of the Euro Borrower organized
-----------------
under the laws of the Federal Republic of Germany, and designated as such on
Schedule 1.01(b), and each other Subsidiary of the Euro Borrower organized under
----------------
the laws of the Federal Republic of Germany and requested by the Euro Borrower
to be a German Borrower, subject to the approval of the Administrative Agent.
"Governmental Authority" means any Federal, state, local or foreign court
-----------------------
or governmental agency, authority, instrumentality or regulatory body, including
any central bank.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
--------- ---------
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
----------------
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof (including pursuant
to a "synthetic lease"), (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness or other obligation or any
"keep well," maintenance of net worth or other similar agreement or (d) as an
account party in respect of any letter of credit or letter of guaranty issued to
support such Indebtedness or obligation; provided that the term "Guarantee"
--------
shall not include endorsements for collection or deposit in the ordinary course
of business. The amount of the obligation under any Guarantee shall be deemed to
be the lower of (a) an amount equal to the stated or determinable amount of the
primary obligation in respect of which such Guarantee is made (including
principal, interest and fees) and (b) the maximum amount for which such
guarantor may be liable pursuant to the terms of the instrument embodying such
Guarantee, unless such primary obligation and the maximum amount for which such
guarantor may be liable are not stated or determinable, in which case the amount
of the obligation under such Guarantee shall be such guarantor's maximum
reasonably anticipated liability in respect thereof as determined by the
guarantor in good faith; irrespective, in any such case, of any amount thereof
that would, in accordance with GAAP, be required to be reflected on a balance
sheet of such Person.
-23-
"Guarantee Agreements" means the Non-U.S. Guarantee Agreement and the U.S.
--------------------
Guarantee Agreement.
"Guarantors" means, for purposes of Section 7.01(j) and Article IX only,
----------
the Parent Guarantors and the Euro Borrower.
"Hazardous Materials" means all pollutants, contaminants, wastes,
---------------------
substances, chemicals, materials and other constituents, including, without
limitation, crude oil, petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls ("PCBs") or PCB-containing
---
materials or equipment of any nature which can give rise to Environmental
Liability under, or are regulated pursuant to, any Environmental Law.
"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 and
all other similar agreements or arrangements designed to alter the risks of any
Person arising from fluctuations in interest rate, currency values or commodity
prices.
"Immaterial Subsidiary" shall mean any Subsidiary of CCSC designated as
----------------------
such in writing to the Administrative Agent from time to time by CCSC; provided
--------
that (i) no Loan Party or Intercompany Borrower hereunder may be an Immaterial
Subsidiary, (ii) no subsidiary that is a Significant Subsidiary may be an
Immaterial Subsidiary, (iii) the aggregate equity value of all Immaterial
Subsidiaries shall not exceed $50.0 million at any time and (iv) the aggregate
Indebtedness of all Immaterial Subsidiaries shall not exceed $100.0 million at
any time. Schedule 3.02 lists the Immaterial Subsidiaries as of the Effective
-------------
Date.
"Impermissible Qualification" means, relative to the opinion or
-----------------------------
certification of any independent public accountant as to any financial statement
of Crown Holdings, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to cause a
default under any of Sections 6.13 through 6.17, inclusive.
"Increased Cost Lender" has the meaning assigned to such term in Section
2.20.
-24-
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid (excluding obligations to pay
salary or benefits under deferred compensation or other benefit programs), (d)
all obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness (excluding prepaid interest thereon) of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all Guarantees by such Person of Indebtedness or other
monetary or financial obligations of others, (h) all Capital Lease Obligations
of such Person, (i) all payments that such Person would have to make in the
event of an early termination, on the date Indebtedness of such Person is being
determined, in respect of outstanding interest rate protection agreements,
foreign currency exchange agreements or other interest or exchange rate hedging
arrangements, (j) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (k)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances, surety bonds and performance bonds, whether or not matured. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is directly liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Indemnitee" has the meaning assigned to such term in Section 10.05(b).
----------
"Information Memorandum" means (i) the Confidential Information Memorandum
-----------------------
dated January 2003 and posted electronically on Intralinks relating to Crown
Holdings and this Agreement and (ii) the Offering Memorandum dated February 11,
2003 related to the Second Lien Notes and the Third Lien Notes.
"Installment Payment Date" has the meaning given to such term in Section
--------------------------
2.05(e).
"Insurance Subsidiary" means Crownway Insurance Company, a Vermont
----------------------
corporation.
"Intellectual Property" has the meaning given to such term in the U.S.
----------------------
Security Agreement.
-25-
"Intercompany Borrower" means each Subsidiary of the Euro Borrower that
----------------------
executes and delivers an Intercompany Note or a French Intercompany Loan
Agreement.
"Intercompany Collateral Documents" means each document or instrument
-----------------------------------
executed and delivered by an Intercompany Borrower granting a Lien on any of its
property to secure payment of an Intercompany Loan and related obligations.
"Intercompany Loan Documents" means the Intercompany Notes or the French
----------------------------
Intercompany Loan Agreements, the Intercompany Collateral Documents and each
other document executed and delivered by an Intercompany Borrower.
"Intercompany Loans" means (a) the intercompany loans made by the Euro
-------------------
Borrower to an Intercompany Borrower (other than a French Intercompany Borrower)
and represented by Intercompany Notes substantially in the form of Exhibit V-2
-----------
and (b) French Intercompany Loans represented by French Intercompany Loan
Agreements, in each case, as identified on Schedule 4.01(k).
----------------
"Intercompany Notes" means each promissory note, substantially in the form
------------------
of Exhibit V-2, evidencing an Intercompany Loan (other than any French
------------
Intercompany Loans) issued by an Intercompany Borrower (other than any French
Intercompany Borrower) in favor of the Euro Borrower and endorsed to the Euro
Collateral Agent.
"Intercreditor Agreements" means, collectively, the U.S. Intercreditor
-------------------------
Agreement, the Euro Intercreditor Agreement and the Receivables Intercreditor
Agreement.
"Interest Expense Coverage Ratio" means, for any Test Period, the ratio of
-------------------------------
(a) Consolidated EBITDA of Crown Holdings and its Subsidiaries to (b) Net Cash
Interest Expense of Crown Holdings and its Subsidiaries, in each case for such
Test Period. For Test Periods ending prior to March 31, 2004, the Cash Interest
Expense shall be determined on a pro forma basis to give effect to the
Transactions as if they had occurred on the first day of such Test Period.
"Interest Payment Date" means, with respect to any Loan, the last day of
----------------------
the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurocurrency Borrowing with an Interest Period of more
than three months' duration, (a) each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing and, in addition, (b) the date of any refinancing
of such Borrowing with a Borrowing of a different Type.
"Interest Period" means (a) as to any Eurocurrency Borrowing, the period
----------------
commencing on the date of such Borrowing (including any date on which such
Borrowing shall have been converted from a Borrowing of a different Type) or on
the last day of the immediately preceding Interest Period applicable to such
Borrowing, as the case may be,
-26-
and ending on (i) in the case of a weekly Eurocurrency Borrowing, the
corresponding day of the week that is 1, 2 or 3 weeks thereafter, as the
relevant Borrower may elect or (ii) in the case of any other Eurocurrency
Borrowing, the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is 1, 2, 3 or 6
months thereafter, as the relevant Borrower may elect; provided that prior to
--------
March 21, 2003, the applicable Borrower shall only be permitted to request
Interest Periods (which are contemplated to be seven days or less) with all such
Interest Periods ending on the same Business Day, and (b) as to any ABR
Borrowing, the period commencing on the date of such Borrowing (including any
date on which such Borrowing shall have been converted from a Borrowing of a
different Type) or on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on the earliest of
(i) the next succeeding March 31, June 30, September 30 or December 31, (ii) the
Term B Loan Maturity Date or Revolving Credit Maturity Date, as applicable, and
(iii) the date such Borrowing is prepaid in accordance with Section 2.05 or
converted in accordance with Section 2.03; provided that with respect to any ABR
--------
Loans made on the Effective Date, the Interest Period shall end on March 4,
2003; provided, however, that if any Interest Period would end on a day other
------------------
than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurocurrency Borrowing only,
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period. For the first Interest
Period hereunder with respect to any Borrowing on the Effective Date, the first
day of such Interest Period shall be deemed to be the day immediately preceding
the Effective Date and interest shall accrue from and including such day
immediately preceding the Effective Date.
"Investment" has the meaning assigned to such term in Section 6.04.
----------
"Issuing Bank" means Citicorp North America, Inc., in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(j). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"Italian Assets" means the asset(s) of an Italian Subsidiary and that does
--------------
not otherwise constitute Collateral or a Principal Property and other than any
Equity Interest in any Person that is not an Italian Subsidiary.
"Italian Subsidiaries" means one or more Non-Subsidiary Loan Parties
---------------------
incorporated or otherwise formed under the laws of the Republic of Italy with
respect to which more than 80% of each of its (i) sales are generated from
operations located in the Republic of Italy and (ii) assets are located in the
Republic of Italy, in each case, determined on a consolidated basis in
accordance with GAAP.
-27-
"Joint Lead Arrangers" has the meaning assigned to such term in the
----------------------
preamble hereto.
"Judgment Currency" has the meaning assigned to such term in Section
------------------
10.17(b).
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
----------------
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the U.S. Borrower at such time. The LC Exposure of any Revolving Dollar
Lender at any time shall be its Commitment Percentage of the total LC Exposure
at such time.
"LC Fees" has the meaning assigned to such term in Section 2.10(b).
-------
"Lender Affiliate" means, (a) with respect to any Lender, (i) an Affiliate
-----------------
of such Lender or (ii) any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course of its
business and is administered or managed by a Lender or an Affiliate of such
Lender and (b) with respect to any Lender that is a fund which invests in bank
loans and similar extensions of credit, any other fund that invests in bank
loans and similar extensions of credit and is managed by the same investment
advisor as such Lender or by an Affiliate of such investment advisor.
"Lenders" has the meaning assigned to it in the preamble hereto.
-------
"Letter of Credit" means any demand letter of credit issued pursuant to
----------------
this Agreement.
"Leverage Condition" means the condition that for three consecutive Test
-------------------
Periods, the Total Leverage Ratio is less than 4.0x.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for any
---------
Interest Period, (a) in the case of Dollars, the rate appearing on Page 3750 of
the Telerate Service and (b) in the case of Euros or Pounds Sterling, the
British Bankers Association Interest Settlement Rate appearing on the
appropriate page of the Telerate Service (or on any successor or substitute page
of such Service, or any successor to or substitute for such Service, providing
rate quotations comparable to those currently provided on such page of such
Service, as determined by the Applicable Agent from time to time for purposes of
providing quotations of interest rates applicable to deposits of that currency
in the London interbank market) at approximately 11:00 a.m., London time, on the
Quotation Day, as the rate for Dollar or Euro or
-00-
Xxxxx Xxxxxxxx deposits of $5.0 million, (euro)5.0 million or (pound)5.0
million, as applicable, with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowing for such Interest Period
shall be the rate supplied to the Applicable Agent at its request quoted by the
Reference Banks in the London interbank market as of the Quotation Day as the
rate for Dollar, Euro or Pound Sterling deposits, as applicable, with a maturity
comparable to such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
----
lien, pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such asset or any filing of any financing statement under the
UCC as in effect in the applicable state or jurisdiction or any other similar
notice or lien under any similar notice or recording statute of any Governmental
Authority, in each of the foregoing cases whether voluntary or imposed by law,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset, (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities and (d) any other agreement intended to create
any of the foregoing.
"Loan Documents" means this Agreement, the Guarantee Agreements, the
---------------
Intercompany Loan Documents, the Security Documents and, if requested by a
Lender pursuant to Section 2.07(e), each Note.
"Loan Parties" means each Parent Guarantor, the Borrowers and the
-------------
Subsidiary Loan Parties and Crown Developpement SNC.
"Loan Party Information" has the meaning assigned to such term in Section
-----------------------
10.18(b).
"Loans" means the Revolving Dollar Loans, the Revolving Euro Loans, the
-----
Term B Dollar Loans and the Term B Euro Loans.
"Mandatory Cost" means the percentage rate calculated by the U.K.
----------------
Administrative Agent in accordance with Exhibit W.
---------
"Material Adverse Effect" means a materially adverse effect on (a) the
-------------------------
business, assets, operations or condition (financial or otherwise), contingent
liabilities or prospects of Crown Holdings and its Subsidiaries taken as a
whole, (b) the ability of any Loan Party to perform any of its obligations under
any Loan Document, (c) the rights of or benefits available to the Lenders taken
as a whole under any Loan Document, or (d) the value of the Collateral, taken as
a whole, or the validity, enforceability, perfection or priority of the Liens,
taken as a whole, granted to the Collateral Agents (for their benefit and for
the benefit of the other applicable Lenders) on the Collateral pursuant to the
Security Documents.
-29-
"Material Indebtedness" means Indebtedness (other than the Loans and
----------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of Crown Holdings and its Subsidiaries (other than any
Immaterial Subsidiary), individually or in an aggregate principal amount
exceeding $25.0 million. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of Crown Holdings or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that Crown Holdings or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time. The Second Lien Notes and the Third Lien Notes shall always
constitute Material Indebtedness, regardless of the principal amount
outstanding.
"Maximum Rate" has the meaning assigned to such term in Section 10.10.
------------
"Minority Equity Interest" means any Equity Interest in any Person engaged
-------------------------
in a line of business which is complementary, reasonably related, ancillary or
useful to any business in which Crown Holdings or any of its Subsidiaries is
then engaged, where such Equity Interest constitutes 50% or less of all Equity
Interests issued and outstanding of such Person.
"Moody's" means Xxxxx'x Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, deed to secure debt, assignment
--------
of leases and rents, leasehold mortgage, leasehold deed of trust, leasehold deed
to secure debt or other security document granting a Lien on any Mortgaged
Property to secure the U.S. Obligations, including any amendment thereto. Each
Mortgage shall be substantially in the form of Exhibit N or otherwise
----------
satisfactory in form and substance to the applicable U.S. Collateral Agent.
"Mortgaged Property" means, initially, each parcel of Real Property and the
------------------
improvements thereto owned by a Loan Party and identified on Schedule
--------
4.01(i)(A), and includes each other parcel of Real Property and improvements
----------
thereto with respect to which a Mortgage is granted pursuant to Section 5.11.
"Multicurrency Borrowing" has the meaning assigned to such term in Section
------------------------
2.12(b).
"Multiemployer Plan" means a multiemployer plan within the meaning of
-------------------
Section 4001(a)(3) of ERISA (i) to which any Loan Party or ERISA Affiliate is
then making or accruing an obligation to make contributions, (ii) to which any
Loan Party or ERISA Affiliate has within the preceding six plan years made
contributions, including any Person which ceased to be an ERISA Affiliate during
such six year period, or (iii) with respect to which any Loan Party or
Subsidiary could incur liability.
-30-
"Net Cash Interest Expense" means, with respect to any Person and its
---------------------------
Subsidiaries and for any period, Cash Interest Expense of such Person and its
Subsidiaries for such period, less the amount of interest income received in
cash by such Person and its Subsidiaries for such period.
"Net Proceeds" means, with respect to any Equity Issuance, Debt Incurrence,
------------
Asset Sale, Destruction or Taking, (a) the cash proceeds actually received in
respect of such event, including (i) any cash received in respect of any
non-cash proceeds, but only as and when received, (ii) in the case of a
Destruction, insurance proceeds in excess of $1.0 million, and (iii) in the case
of a Taking, condemnation awards and similar payments in excess of $1.0 million,
net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid by
Crown Holdings and its Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) the amount of all taxes paid (or reasonably
estimated to be payable) Crown Holdings and its Subsidiaries in connection with
such event, and (iii) in the case of an Asset Sale, the amount of all payments
required to be made by Crown Holdings and its Subsidiaries as a result of such
event to repay Indebtedness (other than Loans) secured by a Prior Lien (as
defined in the U.S. Security Agreement or applicable Mortgage) and refinancings
thereof permitted hereunder or a Lien permitted by Section 6.02(ix) or (x) and
the amount of any reserves established by Crown Holdings and its Subsidiaries to
fund contingent liabilities reasonably estimated to be payable, in each case
during the year that such event occurred or the next succeeding two years and
that are directly attributable to such event (as determined reasonably and in
good faith by Crown Holdings); provided that any amount by which such reserves
--------
are reduced for reasons other than payment of any such contingent liabilities
shall be considered "Net Proceeds" upon such reduction.
"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.
"Non-Subsidiary Loan Party" means any Subsidiary of Crown Holdings that is
--------------------------
not a Subsidiary Loan Party.
"Non-U.S. Guarantee Agreement" means the Non-U.S. Guarantee Agreements,
------------------------------
substantially in the form of Exhibit K, to be entered into by each Euro
----------
Subsidiary Loan Party and the U.K. Administrative Agent for the benefit of the
Term B Euro Lenders and the Revolving Euro Lenders.
-31-
"Non-U.S. Guarantee Subsidiary" means any Wholly Owned Subsidiary of the
-------------------------------
Euro Borrower organized in England, Belgium, Canada, France, Germany, Mexico or
Switzerland.
"Non-U.S. Plan" means any employee benefit plan, program, policy,
---------------
arrangement or agreement maintained or contributed to by, or entered into with,
a Loan Party or any Subsidiary with respect to employees employed outside the
United States.
"Non-U.S. Subsidiary" means, with respect to any Person, any Subsidiary of
--------------------
such Person that is organized under the laws of a jurisdiction other than the
United States of America or any State thereof or the District of Columbia.
"Note" means a note substantially in the form of Exhibit F-1 or F-2.
---- ----------- ---
"Obligations" means the U.S. Obligations, the Euro Obligations and the
-----------
Subsidiary Borrower Obligations.
"Officer's Certificate" means a certificate delivered by the relevant
----------------------
Borrower substantially in the form of Exhibit G-1 or -2, as applicable.
----------- --
"Organic Document" means (i) relative to each Person that is a corporation,
----------------
its charter, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock, (ii) relative to each Person that is a partnership, its partnership
agreement and any other similar arrangements applicable to any partnership or
other equity interests in the Person and (iii) relative to any Person that is
any other type of legal entity, such documents as shall be comparable to the
foregoing.
"Parent Guarantor" means each of Crown Holdings, CCSC and Crown
------------------
International and any other parent holding company of CCSC under their
respective guaranties in Article IX.
"Participant" has the meaning assigned to such term in Section 10.04(f).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA.
"Pension Plan" means a "pension plan," as such term is defined in Section
-------------
3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Plan) and to which any Loan Party or any ERISA Affiliate may have liability,
including any liability by reason of having been a substantial employer within
the meaning of Section 4063 of ERISA at any time during the preceding five
years, or by reason of being deemed to be a contributing sponsor under Section
4069 of ERISA.
-32-
"Perfection Certificate" means a certificate in the form of Annex 3 to the
-----------------------
U.S. Security Agreement or any other form approved by the U.S. Collateral Agent.
"Permitted Investments" means:
---------------------
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or any member state of the
European Union (as it exists on the Effective Date) or issued by any agency
or instrumentality thereof and backed by the full faith and credit of the
United States of America or such member state of the European Union, in
each case maturing within one year from the date of acquisition thereof;
(2) marketable direct obligations issued by any State of the United
States of America or any political subdivision of any such State or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's;
(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's;
(4) time deposits, demand deposits, certificates of deposit,
Eurodollar time deposits or bankers' acceptances maturing within one year
from the date of acquisition thereof or overnight bank deposits, in each
case, issued by any bank organized under the laws of any member state of
the European Union (as it exists on the Effective Date), the United States
of America or any State thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $500.0 million;
(5) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"Permitted Liens" has the meaning assigned to such term in Section 6.02.
---------------
"Permitted Public Refinancing Debt" means senior or subordinated unsecured
---------------------------------
notes of Crown Holdings, CCSC, the U.S. Borrower or the Euro Borrower sold
pursuant to a public offering in the United States or pursuant to an offering in
reliance on Rule 144A and/or Regulation S under the Securities Act of 1933, as
amended, the terms of which notes
-33-
(i) do not provide for any scheduled repayment, mandatory redemption or sinking
fund obligation prior to one year after the Term B Loan Maturity Date, (ii) no
Subsidiary of Crown Holdings is an obligor under such notes that is not an
obligor under the Third Lien Notes, (iii) do not restrict, limit or adversely
affect the ability of any Loan Party or any of its Subsidiaries to perform its
obligations under any of the Loan Documents, (iv) are subject to covenants,
events of default, subsidiary guaranties, and other terms of which, taken as a
whole, that are not more restrictive to the issuer thereof than those set forth
in the Third Lien Notes (as reasonably determined by the Administrative Agent)
and (v) are customary for similar offerings by issuers with credit ratings
comparable to that of Crown Holdings, CCSC, the U.S. Borrower or the Euro
Borrower, as applicable.
"Permitted Receivables Financing" means (i) the transactions under the
---------------------------------
Receivables Purchase Agreement dated as of January 26, 2001 (the "Receivables
-----------
Purchase Agreement") among Crown Cork & Seal Receivables (DE) Corporation, as
-------------------
Seller, Crown Cork & Seal Company (USA), Inc., as the Servicer, the banks and
other financial institutions party thereto as Purchasers thereunder and
Citibank, N.A., as administrative agent for the Purchasers and the other owners
thereunder, as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, and
under the "Transaction Documents" as defined therein in an aggregate principal
amount not to exceed $350 million at any time outstanding, and (ii) refinancings
of the program under the Receivables Purchase Agreement (including, without
limitation, by extending the maturity thereof) or the consummation of one or
more receivables financings replacing the program under the Receivables Purchase
Agreement, with combined proceeds of all Permitted Receivables Financings in an
aggregate principal amount not to exceed $300 million, in each case pursuant to
a structured receivables financing consisting of a securitization of receivables
the material terms of which are substantially similar to the Receivables
Purchase Agreement or otherwise on market terms for companies having a credit
profile similar to Crown Holdings and its Subsidiaries at the time of such
refinancing. For purposes of the foregoing limitations, outstanding proceeds at
any time shall be deemed to equal the then outstanding capital amount or
principal amount received by the relevant Receivables Subsidiary in respect of
sales of accounts receivable or as a result of the creation of debt of such
Receivables Subsidiary where such debt is supported by accounts receivable, in
each case pursuant to a Permitted Receivables Financing, to the extent such
accounts receivable remain outstanding and uncollected at such time.
"Person" means any natural person, corporation, trust, joint venture,
------
association, company, partnership, limited liability company or government, or
any agency or political subdivision thereof.
"Plan" means any Pension Plan or Welfare Plan.
----
-34-
"Pledged Securities" means any Equity Interests pledged pursuant to any
-------------------
Security Document.
"Pound Sterling" means the lawful money of the United Kingdom.
--------------
"Pound Sterling Equivalent" means at the time of determination thereof (a)
-------------------------
with respect to Pound Sterling, the amount in Pound Sterling and (b) with
respect to any amount in Dollars, the equivalent of such amount in Pound
Sterling determined by using the rate of exchange quoted by Citibank
International plc in London at 11:00 a.m. (London time) on the date of
determination to prime banks in London for the spot purchase in the London
foreign exchange market of such amount of Pound Sterling with Dollars.
"Primary Portal" has the meaning assigned to such term in Section 10.19(b).
--------------
"Principal Property" has the meaning given to such term under the
-------------------
indentures, agreements and instruments governing the Public Debt as such
indentures, agreements and instruments are in effect on the Effective Date.
"Pro Rata Percentage" of any Revolving Dollar Lender or Revolving Euro
--------------------
Lender at any time means the percentage of the aggregate Available Dollar
Revolving Credit Commitment or Available Euro Revolving Credit Commitment, as
applicable, represented by such Lender's Available Dollar Revolving Credit
Commitment or Available Euro Revolving Credit Commitment, as applicable.
"Projected Financial Statements" has the meaning assigned to such term in
--------------------------------
Section 3.16(c).
"Property" means any right, title or interest in or to property or assets
--------
of any kind whatsoever, whether real, personal or mixed and whether tangible or
intangible and including any ownership interests of any Person.
"Public Debentures" means each of the following:
-----------------
(1) $200 million 8% Debentures due 2023 of CCSC issued under the 0000
Xxxxxxxxx;
(2) $350 million 7 3/8% Debentures due 2026 of CCSC issued under the
0000 Xxxxxxxxx; and
(3) $150 million 7 1/2% Debentures due 2096 of CCSC issued under the
1996 Indenture.
"Public Debt" means each of the following Indebtedness to the extent
------------
outstanding on the Effective Date:
-35-
(1) $200 million original principal amount of 6 3/4% Notes due 2003 of
CCSC issued under the 0000 Xxxxxxxxx;
(2) $300 million original principal amount of 8 3/8% Notes due 2005 of
CCSC issued under the 0000 Xxxxxxxxx;
(3) $200 million original principal amount of 8% Debentures due 2023
of CCSC issued under the 0000 Xxxxxxxxx;
(4) $350 million original principal amount of 7 3/8% Debentures due
2026 of CCSC issued under the 0000 Xxxxxxxxx;
(5) $150 million original principal amount of 7 1/2% Debentures due
2096 of CCSC issued under the 0000 Xxxxxxxxx;
(6) $200 million original principal amount of 6 3/4% Notes due 2003 of
Crown Cork & Seal Finance PLC issued under the 0000 Xxxxxxxxx;
(7) $300 million original principal amount of 7% Notes due 2006 of
Crown Cork & Seal Finance PLC issued under the 0000 Xxxxxxxxx;
(8) $200 million original principal amount of 6 3/4% Notes due 2003 of
Crown Cork & Seal Finance, S.A. issued under the 1996 Indenture;
(9) Euro 300 million original principal amount of 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 Crown Finance S.A. Euro
------------------------------------
Notes"); and
-----
(10) $105 million original principal amount of 7.54% Notes due 2005 of
CarnaudMetalbox Investments (USA), Inc. ("Carnaud") issued under the Note
-------
Purchase Agreement dated as of May 4, 1993 among CarnaudMetalbox and the
noteholders party thereto, as amended (the "Existing Carnaud Notes").
----------------------
"Quotation Day" in respect of the determination of the LIBO Rate for any
--------------
Interest Period for any Eurocurrency Borrowing in (a) Dollars, means two
Business Days before the first day of that Interest Period, (b) Euros, means two
TARGET Business Days before the first day of that Interest Period or (c) Pounds
Sterling, means the first day of that Interest Period; provided that if
quotations would ordinarily be given on more than one date, the Quotation Day
for such Interest Period shall be the last of such dates.
"Real Property" means all right, title and interest of any Loan Party or
--------------
any of its respective Subsidiaries in and to a parcel of real property owned,
leased or operated
-36-
(including, without limitation, any leasehold estate) by any Loan Party or any
of its respective Subsidiaries together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof.
"Real Property Officers' Certificate" means a certificate substantially in
-----------------------------------
the form of Exhibit N attached hereto.
---------
"Receivables Intercreditor Agreement" means, in connection with the
--------------------------------------
Receivables Purchase Agreement, the intercreditor agreement, substantially in
the form of Exhibit P-3, dated as of February 26, 2003, among Crown Cork & Seal
-----------
Receivables (DE) Corporation, CCSC, Citibank, N.A. and the U.S. Collateral
Agent, and, in connection with any refinancing of the Receivables Purchase
Agreement, an intercreditor agreement substantially identical to the
intercreditor agreement referred to above (as determined by the Administrative
Agent).
"Receivables Subsidiary" means, initially, Crown Cork & Seal Receivables
-----------------------
(DE) Corporation, and any other special purpose subsidiary which exists solely
to purchase and sell receivables or to otherwise raise financing in connection
with a Permitted Receivables Financing.
"Reference Banks" means:
---------------
(a) in connection with the initial syndication of the Loans and
Commitments, in respect of LIBO Rate and Mandatory Cost, the principal
London office of Citibank, N.A.; and
(b) on and after the Effective Date, in respect of LIBO Rate and
Mandatory Cost, the principal London office of Citibank, N.A. and such two
other banks as may be appointed by the Applicable Agent in consultation
with Crown Holdings.
"Refinanced Public Debt" means
----------------------
(1) $195.0 million in aggregate principal amount of 6 3/4% Notes due
April 2003 of CCSC,
(2) $200 million in aggregate principal amount of 6 3/4% Notes due
December 2003 of Crown Cork & Seal Finance PLC,
(3) $193.0 million in aggregate principal amount of 6 3/4% Notes due
December 2003 of Crown Cork & Seal Finance, S.A., and
-37-
(4) $360.0 million in aggregate principal amount of any of the (a)
6.0% Notes due December 2004 of Crown Cork & Seal Finance, S.A., (b) 8 3/8%
Senior Notes due January 2005 of CCSC and (c) 7.54% Notes due May 2005 of
CarnaudMetalbox Investments (USA), Inc.
"Refinancing Plan Indebtedness" means any one or more of the following: (i)
-----------------------------
Permitted Public Refinancing Debt; and (ii) Additional Second Lien Notes and/or
Additional Third Lien Notes in an aggregate principal amount not to exceed
$600.0 million.
"Register" has the meaning assigned to such term in Section 10.04(d).
--------
"Regulation U" means Regulation U of the Board as from time to time in
-------------
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
-------------
effect and all official rulings and interpretations thereunder or thereof.
"Related Parties" means, with respect to any specified Person, such
----------------
Person's Affiliates and the respective directors, officers, employees, agents,
trustees and advisors of such Person and such Person's Affiliates.
"Release" means any spilling, leaking, pumping, pouring, emitting,
-------
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the Environment.
"Remedial Action" means (a) "remedial action," as such term is defined in
----------------
CERCLA, 42 USC Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) clean up, remove,
treat, xxxxx or otherwise take corrective action to address any Hazardous
Material in the Environment; (ii) prevent the Release or threat of Release, or
minimize the further Release of any Hazardous Material so it does not migrate or
endanger or threaten to endanger public health, welfare or the Environment; or
(iii) perform studies and investigations in connection with, or as a
precondition to, (i) or (ii) above.
"Reorganization" means the reorganization of CCSC to create Crown Holdings
--------------
as a new public holding company above CCSC and for CCSC to transfer the stock of
its subsidiaries located in Europe, Mexico and Canada to the Euro Borrower, as
described in the Structure Memorandum.
"Reportable Event" means any reportable event as defined in Section 4043 of
----------------
ERISA or the regulations issued thereunder with respect to a Plan (other than a
Plan maintained by an ERISA Affiliate that is considered an ERISA Affiliate only
pursuant to subsection (m) or (o) of Code Section 414).
-38-
"Requirement of Law" means, as to any Person, any law, treaty, rule or
-------------------
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or assets or to which such Person or any of its property or assets is
subject.
"Requisite Dollar Lenders" means, at any time, Lenders having more than
-------------------------
fifty percent (50%) of the sum of (a) the aggregate outstanding amount of the
Revolving Dollar Credit Commitments or, after the termination of the Revolving
Dollar Credit Commitments, the Revolving Dollar Credit Exposure and (b) the
aggregate outstanding amount of all Term B Dollar Loans.
"Requisite Euro Lenders" means, at any time, Lenders having more than fifty
----------------------
percent (50%) of the sum of the Dollar Equivalent of (a) the aggregate
outstanding amount of the Revolving Euro Credit Commitments or, after the
termination of the Revolving Euro Credit Commitments, the Revolving Euro Credit
Exposure and (b) the aggregate outstanding amount of all Term B Euro Loans then
outstanding.
"Requisite Lenders" means, at any time, Lenders having more than fifty
------------------
percent (50%) of the sum of the Dollar Equivalent of (a) the aggregate
outstanding amount of the Revolving Dollar Credit Commitments and the Revolving
Euro Credit Commitments or, after the termination of the Revolving Dollar Credit
Commitments and/or the Revolving Euro Credit Commitments, the Revolving Dollar
Credit Exposure and/or the Revolving Euro Credit Exposure, as applicable, and
(b) the aggregate outstanding amount of all Term B Dollar Loans and Term B Euro
Loans then outstanding.
"Requisite Revolving Dollar Lenders" means, collectively, Lenders having
-----------------------------------
more than fifty percent (50%) of the aggregate outstanding amount of the
Revolving Dollar Credit Commitments or, after the Revolving Credit Maturity
Date, the Revolving Dollar Credit Exposure.
"Requisite Revolving Euro Lenders" means, collectively, Lenders having more
--------------------------------
than fifty percent (50%) of the aggregate outstanding amount of the Revolving
Euro Credit Commitments, or, after the Revolving Credit Maturity Date, the
Dollar Equivalent of the Revolving Euro Credit Exposure.
"Requisite Term B Dollar Lenders" means Term B Lenders having more than
---------------------------------
fifty percent (50%) of the aggregate principal amount of all Term B Dollar Loans
then outstanding.
-39-
"Requisite Term B Euro Lenders" means Term B Euro Lenders having more than
------------------------------
fifty percent (50%) of the Dollar Equivalent of the aggregate principal amount
of all Term B Euro Loans then outstanding.
"Responsible Officer" of any corporation, partnership or other entity means
-------------------
any executive officer or Financial Officer of such corporation, partnership or
other entity and any other officer or similar official thereof responsible for
the administration of the obligations of such corporation, partnership or other
entity in respect of this Agreement.
"Restricted Payment" means any direct or indirect dividend or other
-------------------
distribution (whether in cash, securities or other property) with respect to any
Equity Interests or Equity Rights of Crown Holdings or any Subsidiary, or any
payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interests or Equity
Rights of Crown Holdings or any Subsidiary. The granting of security by any
Subsidiary pursuant to the terms of this Agreement shall not be considered a
Restricted Payment.
"Restricted Securities" shall mean any shares of capital stock or evidences
---------------------
of indebtedness for borrowed money issued by any Restricted Subsidiary and owned
by CCSC or any Restricted Subsidiary.
"Restricted Subsidiary" means any subsidiary of CCSC that would be
----------------------
considered a "Restricted Subsidiary" under (and as defined in) any indenture,
agreement or instrument governing or evidencing any Public Debt as such
indenture, agreement or instrument is in effect on the Effective Date.
"Retained Public Debt" means (a) $248 million in aggregate principal amount
--------------------
of (i) the 6.0% Notes due December 2004 of Crown Cork & Seal Finance S.A., (ii)
the 8 3/8% Senior Notes due January 2005 of CCSC and (iii) the 7.54% Notes due
May 2005 of CarnaudMetalbox Investments (USA), Inc. that have not been
refinanced and (b) $294 million in aggregate principal amount of 7% Senior Notes
due December 2006 of Crown Cork & Seal Finance plc, in any case to the extent
not refinanced with the proceeds of the Transactions.
"Retained Public Debt Collateral Accounts" collectively means the Retained
----------------------------------------
Public Debt Dollar Collateral Account and the Euro Retained Public Debt
Collateral Account.
"Retained Public Debt Dollar Collateral Account" means the Dollar
-----------------------------------------------------
collateral account into which Excess Cash Flow and Net Proceeds of Equity
Issuances of Crown Holdings may be deposited pursuant to the terms of this
Agreement and the U.S. Security Agreement, which collateral account shall only
secure the U.S. Obligations under this Agreement.
"Retained Public Debt Refinancing Date" shall have the meaning assigned to
--------------------------------------
such term in Section 2.05(d).
"Revolving Credit Borrowing" means a Revolving Dollar Borrowing or a
----------------------------
Revolving Euro Borrowing.
-40-
"Revolving Credit Commitment Period" means the period from and including
-------------------------------------
the date of this Agreement to but not including the Revolving Credit Maturity
Date or any earlier date on which the Revolving Credit Commitments to make
Revolving Loans pursuant to Section 2.01 shall terminate as provided herein.
"Revolving Credit Commitments" means the Revolving Dollar Credit Commitment
----------------------------
and the Revolving Euro Credit Commitment.
"Revolving Credit Exposure" means the Revolving Dollar Credit Exposure and
--------------------------
the Revolving Euro Credit Exposure.
"Revolving Credit Maturity Date" means September 15, 2006.
------------------------------
"Revolving Dollar Borrowing" means a Borrowing comprised of Revolving
----------------------------
Dollar Loans.
"Revolving Dollar Credit Commitment" means, with respect to each Revolving
Dollar Lender, the commitment of such Revolving Dollar Lender to make Revolving
Dollar Loans (and to acquire participations in Letters of Credit hereunder) in
Dollars, expressed in each case as an amount representing the maximum principal
amount of such Revolving Dollar Lender's Revolving Dollar Credit Exposure
hereunder, as the same may be reduced from time to time pursuant to the
provisions of this Agreement. The initial amount of each Revolving Dollar
Lender's Revolving Dollar Credit Commitment is set forth on Schedule 2.01 (in
-------------
the case of Revolving Dollar Credit Commitments in effect on the Effective
Date), or in the Assignment and Acceptance pursuant to which such Revolving
Dollar Lender shall have assumed its Revolving Dollar Credit Commitment, as
applicable. The aggregate amount of the Revolving Dollar Lenders' Revolving
Dollar Credit Commitments as of the Effective Date is $275.0 million.
"Revolving Dollar Credit Exposure" means, with respect to any Revolving
----------------------------------
Dollar Lender at any time, the sum of (a) the aggregate principal amount at such
time of all outstanding Revolving Dollar Loans of such Revolving Dollar Lender,
plus (b) such Revolving Dollar Lender's LC Exposure at such time.
"Revolving Dollar Lender" means a Lender with a commitment to make
-------------------------
Revolving Dollar Loans or with any Revolving Dollar Credit Exposure, in its
capacity as such.
"Revolving Dollar Loans" means the revolving loans in Dollars made by the
-----------------------
Revolving Dollar Lenders to the U.S. Borrower pursuant to clause (ii)(A) of
Section 2.01(a). Each Revolving Dollar Loan shall be a Eurocurrency Revolving
Loan or an ABR Loan.
"Revolving Euro Borrowing" means a Borrowing comprised of Revolving Euro
-------------------------
Loans.
-41-
"Revolving Euro Credit Commitment" means, with respect to each Revolving
---------------------------------
Euro Lender, the commitment of such Revolving Euro Lender to make Revolving Euro
Loans in Euros or Pound Sterling expressed as an amount in Dollars representing
the maximum aggregate amount of such Revolving Euro Lender's Revolving Euro
Credit Exposure hereunder, as the same may be reduced from time to time pursuant
to the provisions of this Agreement. The initial amount of each Revolving Euro
Lender's Revolving Euro Credit Commitment is set forth on Schedule 2.01 (in the
-------------
case of Revolving Euro Credit Commitments in effect on the Effective Date), or
in the Assignment and Acceptance pursuant to which such Revolving Euro Lender
shall have assumed its Revolving Euro Credit Commitment, as applicable. The
aggregate amount of the Revolving Euro Lenders' Revolving Euro Credit
Commitments as of the Effective Date is $275.0 million.
"Revolving Euro Credit Exposure" means, with respect to any Revolving Euro
------------------------------
Lender at any time, the aggregate principal amount at such time of all
outstanding Revolving Euro Loans of such Revolving Euro Lender stated in the
currency of each outstanding Revolving Euro Loan.
"Revolving Euro Lender" means a Lender with a commitment to make Revolving
----------------------
Euro Loans or with any Revolving Euro Credit Exposure, in its capacity as such.
"Revolving Euro Loans" means the revolving loans in Euros, Pounds Sterling
--------------------
or Dollars made by the Revolving Euro Lenders pursuant to clause (ii)(B) of
Section 2.01(a); provided that the aggregate principal amount of all Revolving
--------
Euro Loans denominated in Pounds Sterling shall not exceed the Pound Sterling
Equivalent of $175 million. Each Revolving Euro Loan shall be a Eurocurrency
Loan.
"Revolving Lenders" means Revolving Dollar Lenders and Revolving Euro
------------------
Lenders.
"Revolving Loans" means Revolving Dollar Loans and Revolving Euro Loans.
----------------
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies.
---
"SEC" means the Securities and Exchange Commission.
---
"Second Lien Dollar Notes" means the $1.085 billion in aggregate principal
------------------------
amount of 9.5% Second Priority Senior Secured Notes due 2011 of the Euro
Borrower issued under the Second Lien Dollar Notes Indenture on the Effective
Date.
"Second Lien Euro Notes" means the (euro)285 million in aggregate principal
----------------------
amount of 10.25% Second Priority Senior Secured Notes due 2011 of the Euro
Borrower issued under the Second Lien Notes Indenture on the Effective Date.
-42-
"Second Lien Notes" means the Second Lien Dollar Notes and the Second Lien
------------------
Euro Notes.
"Second Lien Notes Indenture" means the Indenture dated as of February 26,
----------------------------
2003, by and among the Euro Borrower, the guarantors named therein and Xxxxx
Fargo Bank Minnesota, National Association, as trustee, governing the Second
Lien Dollar Notes and Second Lien Euro Notes.
"Secured Parties" has the meaning given to such term in the applicable
----------------
Security Document.
"Securities Account" has the meaning assigned to such term in the UCC.
------------------
"Security Documents" means the Euro Security Documents and the U.S.
-------------------
Security Documents.
"SFAS 133" means Statements of Financial Accounting Standards No. 133, as
--------
amended, "Accounting for Derivative Instruments and Hedging Activities."
"Sharing Agreement" means the Global Participation and Proceeds Sharing
------------------
Agreement, substantially in the form of Exhibit R hereto, dated as of February
26, 2003, among the Administrative Agent, the U.K. Administrative Agent, the
trustees under the Second Lien Notes Indenture and the Third Lien Notes
Indenture, the Collateral Agents and each of the other Persons that become a
party thereto.
"Significant Subsidiary" means any Subsidiary that would be a "significant
-----------------------
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act of 1933, as such Regulation is in effect on the
Effective Date.
"SSBI" has the meaning assigned to it in the preamble hereto.
----
"Statutory Reserve Rate" means a fraction (expressed as a decimal) the
------------------------
numerator of which is the number one and the denominator of which is the number
one minus the aggregate (expressed as a decimal) of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) established by the Board to which the Administrative Agent is subject
with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to such Regulation D.
Eurocurrency Loans shall be deemed to constitute eurocurrency funding and to be
subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation and without regard to
whether any Lender actually obtains or maintains eurocurrency funding for its
Eurocurrency Loans. The Statutory Reserve Rate shall be adjusted automatically
on and as of the effective date of any change in any reserve percentage.
-43-
"Structure Memorandum" means the Structure Memorandum dated February 25,
---------------------
2003 and distributed to each Agent and Lender and attached hereto as Exhibit U.
---------
"Subsidiary" means, with respect to any Person, (i) any corporation of
----------
which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person, (ii) any partnership of which more than 50%
of the outstanding partnership interests having the power to act as a general
partner of such partnership (irrespective of whether at the time any partnership
interests other than general partnership interests of such partnership shall or
might have voting power upon the occurrence of any contingency) are at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person; or (iii) any other legal entity the accounts of which would or should be
consolidated with those of such Person on a consolidated balance sheet of such
Person prepared in accordance with GAAP.
"Subsidiary Borrower" means each German Borrower and each U.K. Borrower.
--------------------
"Subsidiary Borrower Obligations" means, with respect to each Subsidiary
---------------------------------
Borrower, the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans made to such Subsidiary Borrower and interest
accruing after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or like proceeding, relating to such Subsidiary
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Loans made to such Subsidiary Borrower and all
other obligations and liabilities of such Subsidiary Borrower to any Agent or to
any Lender, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement or any other document made, delivered or given
in connection herewith, whether on account of principal, interest, fees,
indemnities, costs or expenses (including, without limitation, all fees, charges
and disbursements of counsel (including the allocated costs of internal counsel)
that are to be paid by such Subsidiary Borrower to any Agent, or to any Lender
pursuant to any Loan Document) or otherwise.
"Subsidiary Loan Parties" means (i) each of the U.S. Borrower's Domestic
------------------------
Subsidiaries (other than a Receivables Subsidiary and the Insurance Subsidiary),
-44-
(ii) each Subsidiary Borrower and (iii) each Subsidiary of the Euro Borrower
designated on Schedule 1.01(b) as a subsidiary guarantor or which becomes a
subsidiary guarantor pursuant to the provisions of Section 5.11.
"Substitute Interest Rate" has the meaning assigned to such term in Section
------------------------
2.12(a).
"Survey" means a survey of any Mortgaged Property (and all improvements
------
thereon): (i) prepared by a surveyor or engineer licensed to perform surveys in
the state where such Mortgaged Property is located, (ii) dated (or redated) not
earlier than six months prior to the date of delivery thereof (or such longer
period as may be approved by the U.S. Collateral Agent if the survey exception
on any title policy relating thereto is removed or insured over) unless there
shall have occurred within six months prior to such date of delivery any
exterior construction on the site of such Mortgaged Property, in which event
such survey shall be dated (or redated) after the completion of such
construction or if such construction shall not have been completed as of such
date of delivery, not earlier than 20 days prior to such date of delivery, (iii)
certified by the surveyor (in a manner reasonably acceptable to the
Administrative Agent) to the Administrative Agent and the Title Company, (iv)
complying in all respects with the minimum detail requirements of the American
Land Title Association as such requirements are in effect on the date of
preparation of such survey and (v) sufficient for the Title Company to remove
all standard survey exceptions from the title insurance policy (or commitment)
and issue a survey endorsement.
"Syndication Agent" has the meaning assigned to such term in the preamble
------------------
to this Agreement.
"Taking" means any taking of any Property of Crown Holdings or any
------
Subsidiary or any portion thereof, in or by condemnation or other eminent domain
proceedings pursuant to any law, general or special, or by reason of the
temporary requisition or use of any Property of Crown Holdings or any Subsidiary
or any portion thereof, by any Governmental Authority.
"Taxes" has the meaning assigned to such term in Section 2.16.
-----
"Term B Borrowing" means a Term B Dollar Borrowing or a Term B Euro
------------------
Borrowing, as applicable.
"Term B Dollar Borrowing" means a Borrowing comprised of Term B Dollar
------------------------
Loans.
"Term B Dollar Commitments" means with respect to a Term B Dollar Lender,
--------------------------
the commitment, if any, of such Term B Dollar Lender to make a Term B Dollar
Loan in Dollars hereunder on the Effective Date, expressed as an amount
representing the maximum principal amount of the Term B Dollar Loan to be made
by such Term B Dollar Lender hereunder,
-45-
as the same may be reduced from time to time pursuant to the provisions of this
Agreement. The initial amount of each Lender's Term B Dollar Commitment is set
forth on Schedule 2.01 or in the Assignment and Acceptance pursuant to which
-------------
such Lender shall have assumed its Term B Commitment, as applicable. The initial
aggregate amount of the Term B Dollar Lenders' Term B Dollar Commitments is
$450.0 million.
"Term B Dollar Lender" means a Lender with a Term B Dollar Commitment and
---------------------
an outstanding Term B Dollar Loan to the U.S. Borrower.
"Term B Dollar Loan" means a Loan in Dollars made pursuant to clause (i)(A)
------------------
of Section 2.01(a).
"Term B Euro Borrowing" means a Borrowing comprised of Term B Euro Loans.
---------------------
"Term B Euro Commitments" means with respect to a Term B Euro Lender, the
-----------------------
commitment, if any, of such Term B Euro Lender to make a Term B Euro Loan
hereunder in Euros on the Effective Date, expressed as an amount in Dollars
representing the maximum principal amount of the Term B Euro Loan to be made by
such Term B Euro Lender hereunder, as the same may be reduced from time to time
pursuant to the provisions of this Agreement. The initial amount of each
Lender's Term B Euro Commitment is set forth on Schedule 2.01 or in the
--------------
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Term B Euro Commitment, as applicable. The initial aggregate amount of the Term
B Euro Lenders' Term B Euro Commitments is (euro)50.0 million.
"Term B Euro Lender" means a Lender with a Term B Euro Commitment and an
------------------
outstanding Term B Euro Loan to the Euro Borrower.
"Term B Euro Loan" means a Loan in Euros made pursuant to clause (i)(B) of
----------------
Section 2.01(a). Each Term B Euro Loan shall be a Eurocurrency Loan.
"Term B Lender" means a Term B Dollar Lender or a Term B Euro Lender, as
-------------
the case may be.
"Term B Loan Maturity Date" means September 15, 2008; provided, however,
------------------------- ------------------
that if the 7% Senior Notes due December 2006 of CCSC are not repaid or
refinanced in full in a manner permitted hereunder, or an amount sufficient in
cash to repay or refinance such debt in full at maturity is not available in the
Retained Public Debt Collateral Account, by September 15, 2006, then the Term B
Loan Maturity Date shall be September 15, 2006, unless waived by the Requisite
Lenders.
"Term B Loans" means Term B Dollar Loans and Term B Euro Loans.
------------
-46-
"Test Period" means, for the covenants contained in Sections 6.13 through
-----------
6.17, the four consecutive complete fiscal quarters of Crown Holdings then last
ended. Compliance with such covenants shall be tested as of the end of each Test
Period. For purposes of the covenants in Section 6.13 through 6.17, inclusive,
for Test Periods ending prior to March 31, 2004, the calculation of Consolidated
EBITDA of Crown Holdings and its Subsidiaries shall include Consolidated EBITDA
for periods prior to January 1, 2003 as set forth in the table below and actual
Consolidated EBITDA of Crown Holdings and its Subsidiaries for periods on or
after January 1, 2003:
--------------------------------------------------------------------------------
Period Consolidated EBITDA
------ -------------------
--------------------------------------------------------------------------------
July 1, 2002 through September 30, 2002 $242.0 million
--------------------------------------------------------------------------------
October 1, 2002 through December 31, 2002 $128.5 million
--------------------------------------------------------------------------------
"Third Lien Notes" means the $725 million in aggregate principal amount of
----------------
10.875% Third Priority Senior Secured Notes due 2013 of the Euro Borrower issued
under the Third Lien Notes Indenture.
"Third Lien Notes Indenture" means the Indenture dated as of February 26,
---------------------------
2003, by and among the Euro Borrower, the guarantors named therein and Xxxxx
Fargo Bank Minnesota, National Association, as trustee, governing the Third Lien
Notes.
"Title Company" means Fidelity National Title Insurance Company or such
--------------
other title insurance or abstract company as shall be designated by the
Administrative Agent.
"Total Dollar Revolving Credit Commitment" means, at any time, the
--------------------------------------------
aggregate amount of the Revolving Dollar Credit Commitments of the Revolving
Dollar Lenders as in effect at such time.
"Total Euro Revolving Credit Commitment" means, at any time, the aggregate
---------------------------------------
amount of the Revolving Euro Credit Commitments of the Revolving Euro Lenders,
as in effect at such time.
"Total Leverage Ratio" means, for any Test Period, the ratio of (a)
----------------------
Indebtedness (without giving effect to clause (i) in the definition thereof) of
Crown Holdings and its Subsidiaries (exclusive of Indebtedness under any
Permitted Receivables Financing) plus any liability recorded in accordance with
SFAS 133 which does not represent an actual obligation and for which an
offsetting derivative contract has been recorded in the financial statements in
accordance with GAAP (but, to the extent and only to the extent, such liability
exceeds $50,000,000), as of the last day of such Test Period, to (b)
Consolidated EBITDA for such Test Period. For any Test Period during which any
Refinanced Public Debt
-47-
and/or Retained Public Debt shall remain outstanding, so long as no Default or
Event of Default has occurred and is continuing and cash is on deposit in the
Collateral Accounts and/or the Retained Public Debt Collateral Accounts, a
principal amount of Refinanced Public Debt and/or Retained Public Debt equal to
such aggregate cash amount on deposit shall be deemed retired and not
outstanding for purposes of this definition only.
"Transaction Costs" means costs and expenses incurred in connection with
------------------
the Transactions.
"Transactions" means the execution and delivery by each Loan Party of each
------------
of the Loan Documents and the Borrowings hereunder, the Reorganization, the
issuance and assumption of the Second Lien Notes, the issuance of the Third Lien
Notes and the completion of the Debt Swaps.
"Transferee" has the meaning assigned to such term in Section 2.16.
----------
"Triggering Event" shall have the meaning assigned to such term in the
-----------------
Sharing Agreement.
"Type", when used in respect of any Loan or Borrowing, shall refer to the
----
Rate by reference to which interest on such Loan or on the Loans comprising such
Borrowing is determined. For purposes hereof, "Rate" shall include the Adjusted
LIBO Rate and the Alternate Base Rate.
"UCC" shall mean the Uniform Commercial Code as in effect in the applicable
---
state or jurisdiction.
"U.K. Administrative Agent" has the meaning assigned to such term in the
---------------------------
preamble hereto.
"U.K. Borrowers" means each Subsidiary of the Euro Borrower organized under
--------------
the laws of England and Wales, as designated as such on Schedule 1.01(b), and
-----------------
each other Subsidiary of the Euro Borrower organized under the laws of England
and Wales and requested by the Euro Borrower to be a U.K. Borrower, subject to
the approval of the Administrative Agent.
"U.S. Acceleration" has the meaning assigned to such term in Section 7.04.
-----------------
"U.S. Bank Pledge Agreement" means the Bank Pledge Agreement, substantially
--------------------------
in the form of Exhibit I-2, among Crown Holdings and the U.S. Collateral Agent
-----------
for the benefit of the Secured Parties named therein.
-48-
"U.S. Borrower" has the meaning assigned to such term in the preamble
--------------
hereto.
"U.S. Borrower Cash Flow Ratio" means, for any Test Period, the ratio of
------------------------------
(a) Cash In Flow of the U.S. Borrower to (b) Cash Out Flow of the U.S. Borrower.
For Test Periods prior to March 31, 2004, Cash In Flow and Cash Out Flow shall
be calculated by reference to actual Cash In Flow and Cash Out Flow after the
Effective Date on an annualized basis.
"U.S. Collateral" means all Collateral securing the U.S. Obligations and
----------------
the Euro Obligations.
"U.S. Collateral Agent" means Citicorp North America, Inc., in its capacity
---------------------
as collateral agent under the U.S. Security Documents.
"U.S. Guarantee Agreement" means the U.S. Guarantee Agreement,
----------------------------
substantially in the form of Exhibit H, made by the Domestic Subsidiaries (other
---------
than a Receivables Subsidiary and the Insurance Subsidiary) in favor of the
Administrative Agent for the benefit of the applicable Lenders.
"U.S. Indemnity, Subrogation and Contribution Agreement" means the U.S.
----------------------------------------------------------
Indemnity, Subrogation and Contribution Agreement, substantially in the form of
Exhibit E.
---------
"U.S. Intercreditor Agreement" means the intercreditor and collateral
------------------------------
agency agreement, substantially in the form of Exhibit P-1, dated as of February
-----------
26, 2003, among the Administrative Agent, Xxxxx Fargo Bank Minnesota, National
Association, as trustee for the holders of the Second Lien Notes, Xxxxx Fargo
Bank Minnesota, National Association, as trustee for the holders of the Third
Lien Notes, Citicorp North America, Inc., as U.S. Collateral Agent, and the
other Persons that may become party thereto from time to time.
"U.S. Loan Parties" means the U.S. Borrower and the Domestic Subsidiaries
-----------------
(other than a Receivables Subsidiary and the Insurance Subsidiary).
"U.S. Obligations" means, with respect to the U.S. Borrower, the unpaid
-----------------
principal of and interest on (including interest accruing after the maturity of
the Loans made to the U.S. Borrower and interest accruing after the filing of
any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the U.S. Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans made to or LC Disbursements made pursuant to Letters of Credit issued
for the account of the U.S. Borrower and all other obligations and liabilities
of the U.S. Borrower to any Agent, the Issuing Bank or to any Lender, whether
direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement or any other document made,
-49-
delivered or given in connection herewith, whether on account of principal,
interest, fees, indemnities, costs or expenses (including, without limitation,
all fees, charges and disbursements of counsel (including the allocated costs of
internal counsel) that are to be paid by the U.S. Borrower to any Agent, the
Issuing Bank or to any Lender pursuant to any Loan Document) or otherwise.
"U.S. Retained Collateral Account Agreement" means the U.S. Retained
----------------------------------------------
Collateral Account Agreement, substantially in the form of Exhibit J-2 among the
-----------
U.S. Borrower and the U.S. Collateral Agent for the benefit of the Secured
Parties named therein.
"U.S. Security Agreement" means the U.S. Security Agreement, substantially
-----------------------
in the form of Exhibit J-1, among the U.S. Loan Parties and the U.S. Collateral
-----------
Agent for the benefit of the Secured Parties named therein.
"U.S. Security Documents" means the U.S. Security Agreement, the U.S. Bank
-----------------------
Pledge Agreement, the U.S. Retained Collateral Account Agreement, the U.S.
Shared Pledge Agreement, the U.S. Intercreditor Agreement, the Receivables
Intercreditor Agreement, the Mortgages, the Perfection Certificate executed by
the U.S. Loan Parties and each other security agreement or other instrument or
document executed and delivered pursuant to Section 5.11 or 5.12 to secure any
of the U.S. Obligations.
"U.S. Shared Pledge Agreement" means the U.S. Shared Pledge Agreement,
------------------------------
substantially in the form of Exhibit I-1, among the U.S. Loan Parties and the
-----------
U.S. Collateral Agent for the benefit of the Secured Parties named therein.
"U.S. Subsidiary" means any Subsidiary of Crown Holdings that is not a
----------------
Non-U.S. Subsidiary.
"Welfare Plan" means a "welfare plan", as such term is defined in Section
------------
3(1) of ERISA, that is maintained or contributed to by a Loan Party or any
Subsidiary or with respect to which a Loan Party or any Subsidiary could incur
liability.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
------------------------
all of the outstanding Equity Interests or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
---------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part 1 of Subtitle E of Title IV of ERISA.
-50-
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
--------------------------------------
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
---------
Dollar Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type
------------ ---- ------------------
(e.g., a "Eurocurrency Revolving Loan"). Borrowings also may be classified and
---- ----------------------------
referred to by Class (e.g., a "Revolving Credit Borrowing") or by Type (e.g., a
---- --------------------------- ----
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
----------------------- ---- ----------------------
Borrowing").
---------
SECTION 1.03. Terms Generally. (a) The definitions in Section 1.01 shall
----------------
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (i) any reference in this Agreement to any Loan
Document means such document as amended, restated, supplemented or otherwise
modified from time to time and (ii) all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time; provided, however, that for purposes of determining compliance with the
------------------
covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the Effective Date and applied on a basis
consistent with the application used in the financial statements referred to in
Section 3.05.
(b) If any payment under this Agreement or any other Loan Document shall be
due on any day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and in the case of any payment
accruing interest, interest thereon shall be paid for the period of such
extension.
(c) For purposes of the limitations in Article VI (other than Sections 6.13
through 6.17, inclusive) stated in Dollars, non-Dollar currencies will be
converted into Dollars using the methodology set forth in the definition of
Dollar Equivalent at the spot exchange rate in effect at the time of incurrence.
ARTICLE II
THE CREDITS
SECTION 2.01. Credit Commitments. (a)(i)(A) Subject to the terms and
-------------------
conditions hereof, each Term B Dollar Lender severally agrees to make Term B
Dollar Loans in Dollars to the U.S. Borrower on the Effective Date in a
principal amount not to exceed its Term B Dollar Commitment.
-51-
(B) Subject to the terms and conditions hereof, each Term B Euro
Lender severally agrees to make Term B Euro Loans in Euros to the Euro
Borrower on the Effective Date in a principal amount not to exceed its Term
B Euro Commitment.
(C) Amounts repaid or prepaid in respect of Term B Loans may not be
reborrowed.
(ii) (A) Subject to the terms and conditions hereof, each Revolving
Dollar Lender severally agrees to make Revolving Dollar Loans in Dollars to
the U.S. Borrower from time to time during the Revolving Credit Commitment
Period.
(B) Subject to the terms and conditions hereof, each Revolving Euro
Lender severally agrees to make Revolving Euro Loans in Euros or Pounds
Sterling or Dollars to the Euro Borrower and in Pounds Sterling to the U.K.
Borrowers and in Euros to the German Borrowers, in each case, from time to
time during the Revolving Credit Commitment Period; provided, however, that
after giving effect to such Revolving Euro Loans, (x) the maximum amount of
Revolving Euro Loans that may be outstanding at any given time to the U.K.
Borrowers shall be the Pound Sterling Equivalent of $175.0 million and (y)
the maximum amount of Revolving Euro Loans that may be outstanding at any
given time to the German Borrowers shall be the Euro Equivalent of $50.0
million.
(C) During the Revolving Credit Commitment Period each Borrower may
use the Revolving Credit Commitments by borrowing, prepaying the Revolving
Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. Notwithstanding anything to the contrary
contained in this Agreement, in no event may (i) Revolving Dollar Loans be
borrowed under this Article II if, after giving effect thereto (and to any
concurrent repayment or prepayment of Loans), (A) the Aggregate Revolving
Dollar Credit Exposure would exceed the Total Dollar Revolving Credit
Commitment then in effect or (B) the Revolving Dollar Credit Exposure of
any Revolving Dollar Lender would exceed such Revolving Dollar Lender's
Revolving Dollar Credit Commitment, and (ii) Revolving Euro Loans be
borrowed under this Article II if, after giving effect thereto (and to any
concurrent repayment or prepayment of Loans), (A) the Dollar Equivalent as
of the date of such Borrowing of the Aggregate Revolving Euro Credit
Exposure would exceed the Total Euro Revolving Credit Commitment then in
effect or (B) the Dollar Equivalent as of the date of such Borrowing of the
Revolving Euro Credit Exposure of any Revolving Euro Lender would exceed
such Revolving Euro Lender's Revolving Euro Credit Commitment.
(b) The Revolving Loans and Term B Loans may from time to time be (i)
Eurocurrency Loans, (ii) ABR Loans so long as such Loans are in Dollars or (iii)
a combination thereof, as determined by the relevant Borrower and notified to
the Administrative Agent and the U.K. Administrative Agent in accordance with
Sections 2.02 and 2.03;
-52-
provided that (x) all Revolving Dollar Loans and Term B Dollar Loans shall
--------
be ABR Loans from the Effective Date through and including March 4, 2003 and (y)
no such Loan denominated in Dollars shall be made as or converted to a
Eurocurrency Loan after the day that is one month prior to the Revolving Credit
Maturity Date or the Term B Loan Maturity Date, as applicable.
(c) Each Loan shall be made as part of a Borrowing consisting of Loans of
the same Class and Type made by the Lenders ratably in accordance with their
respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
--------
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(d) (i) To the extent that any Refinanced Public Debt may not be refinanced
(whether through voluntary repayment, purchase, repurchase, redemption or
defeasance) on the Effective Date, the Term B Lenders shall fund all Term B
Borrowings into the Dollar Collateral Account and Euro Collateral Account, as
applicable, on the Effective Date, and thereafter such Term B Borrowings may
only be released to repay or repurchase Refinanced Public Debt in accordance
with the terms of the U.S. Security Agreement and the Euro Collateral Account
Agreements, as applicable.
(ii) The sum of the Revolving Dollar Credit Exposure and the Revolving Euro
Credit Exposure shall not exceed $250.0 million on the Effective Date; provided
--------
that the Borrowers shall be permitted to have Revolving Borrowings in excess of
such amount (such excess not to exceed $25.0 million) on the Effective Date to
the extent necessary to pay certain payables relating to the purchase of raw
materials purchased prior to the Effective Date, but due and payable on or
around the Effective Date.
(e) Neither the Euro Borrower nor Crown Cork & Seal Finance plc ("CCS
Finance") shall be entitled to send a Payment Instruction (as hereinafter
defined) under their respective Euro Collateral Account Agreements unless:
(i) in the case of CCS Finance, simultaneously with the receipt of funds
from the Account Bank (as defined in the Euro Collateral Account Agreement) CCS
Finance repays, purchases, repurchases, redeems or defeases then outstanding
Refinanced Public Debt of which it is the issuer using an amount not less than
the amount of such funds; or
(ii) in the case of the Euro Borrower (x) simultaneously with the receipt
of funds from the Account Bank, the Euro Borrower lends 38.1% to Sofreb. 5.3% to
Z.P. France and the remainder to Societe de Participations CarnaudMetalbox under
the terms of their respective French intercompany loan agreements; provided,
however, that if the amount to be so lent exceeds the maximum amount to be lent
under a French intercompany loan agreement, such excess shall be lent to those
intercompany borrowers named above who have not fully borrowed under their
respective French intercompany loan agreements, pro rata,
-53-
(y) such Intercompany Borrower immediately on lends the proceeds from the Euro
Borrower loans to Crown Cork & Seal Finance SA ("Crown Finance") upon terms
reasonably satisfactory to the U.K. Administrative Agent and (z) Crown Finance
repays, purchases, repurchases, redeems or defeases then outstanding Refinanced
Public Debt of which it is the issuer using an amount not less than the amount
of such funds.
(f) No Revolving Credit Borrowings made on or after the Effective Date
shall be used to pay (whether through voluntary repayment, purchase, repurchase,
redemption or defeasance), directly or indirectly, Refinanced Debt or Retained
Public Debt. Each Borrowing Request of a Revolving Loan shall be deemed to be a
representation and warranty as to compliance with this paragraph (e).
SECTION 2.02. Procedure for Borrowing. (a) The applicable Borrowers may
-----------------------
borrow under the applicable Revolving Credit Commitments (in each case, subject
to the limitations in Section 2.01) or the applicable Term B Commitments by
giving the notice (a "Borrowing Request") to the Applicable Agent (with a copy
------------------
thereof to be promptly provided to the Administrative Agent or the U.K.
Administrative Agent, as the case may be), which notice must be received by the
Applicable Agent prior to (a) 10:00 a.m., London time, (i) three Business Days
prior to the requested Borrowing Date in the case of a Eurocurrency Borrowing
denominated in Euros and (ii) one Business Day prior to the requested Borrowing
Date in the case of a Eurocurrency Borrowing denominated in Pounds Sterling, or
(b) 9:00 a.m., New York City time, on the proposed Borrowing Date, in the case
of an ABR Borrowing. The Borrowing Request for each Borrowing shall specify (i)
the identity of the Borrower and whether the requested Borrowing is to be a
Revolving Dollar Borrowing, a Revolving Euro Borrowing, a Term B Dollar
Borrowing or a Term B Euro Borrowing, (ii) the amount to be borrowed and the
currency thereof, (iii) the requested Borrowing Date (which must be the
Effective Date, in the case of a Term B Borrowing), (iv) whether the Borrowing
is to be of Eurocurrency Loans or ABR Loans, (v) if the Borrowing is to be of
Eurocurrency Loans, the length of the initial Interest Period therefor, and (vi)
the location and number of the relevant Borrower's account to which funds are to
be disbursed, which shall comply with the requirements of this Agreement. If no
election as to the Type of Borrowing is specified, then the requested Borrowing
shall be an ABR Borrowing (if the Borrowing is made by the U.S. Borrower) or a
Eurocurrency Borrowing (if the Borrowing is made by the Euro Borrower or a
Subsidiary Borrower). If no Interest Period is specified with respect to any
requested Eurocurrency Borrowing, then the Borrower thereunder shall be deemed
to have selected an Interest Period of one month's duration.
(b) Each Borrowing shall be in a minimum aggregate principal amount of (i)
$5.0 million, (euro)5.0 million or (pound)5.0 million, as applicable, or an
integral multiple of $1.0 million, (euro)1.0 million or (pound)1.0 million, as
applicable, in excess thereof or (ii) in the case of a Revolving Credit
Borrowing, if less, the aggregate amount of the then Available Dollar Revolving
Credit Commitments or Available Euro Revolving Credit Commitments, as
applicable.
-54-
Subject to Section 2.12, Revolving Loans specified as a Euro Borrowing shall be
made and funded in Euros or Pounds Sterling, as specified in the Borrowing
Request, in an aggregate amount equal to the Dollar Equivalent of the amount
specified in such Borrowing Request (as determined by the U.K. Administrative
Agent as of the Denomination Date for such Euro Borrowing (which determination
shall be conclusive absent manifest error)).
(c) Upon receipt of a Borrowing Request from any Borrower, the Applicable
Agent shall promptly notify each applicable Lender (and if requested, any
Participant described in the proviso to the next sentence) of the requested
currency and aggregate amount (in both the requested currency and the Dollar
Equivalent thereof) of such Borrowing and of the amount (in both the requested
currency and the Dollar Equivalent thereof) of such Lender's pro rata portion
--- ----
thereof, which shall be based on the respective Available Dollar Revolving
Credit Commitments of all the Revolving Dollar Lenders or the Available Euro
Revolving Credit Commitments of all the Revolving Euro Lenders, as applicable
(in the case of a Revolving Credit Borrowing), or Term B Commitments (in the
case of a Term B Borrowing), as applicable. Each Lender will make the amount of
its pro rata portion of each such Borrowing available to the Applicable Agent
--- ----
for the account of the relevant Borrower at (i) in the case of a Euro Borrowing
or Pound Sterling Borrowing or a Dollar Borrowing by the Euro Borrower or
Subsidiary Borrowers, the office of the U.K. Administrative Agent specified from
time to time by the U.K. Administrative Agent as the place for payments in Euros
or Pounds Sterling prior to 11:00 a.m., London time, and (ii) in the case of a
Dollar Borrowing by the U.S. Borrower, the New York office of the Administrative
Agent specified in Section 10.01 prior to 12:00 noon, New York City time, on the
Borrowing Date requested by such Borrower in funds immediately available to the
Administrative Agent and, subject to Section 2.12, denominated in the requested
currency; provided, however, that if the Administrative Agent and/or the
------------------
Syndication Agent is a (or any Affiliate thereof that is a) Revolving Euro
Lender whose Revolving Euro Credit Commitment is at any time subject to a
participation, it shall not be required to fund its portion of a Revolving Euro
Borrowing that is subject to a participation (and such Borrower agrees to
immediately return such portion of a Revolving Euro Borrowing to such Revolving
Euro Lender if received) unless and until it has received immediately available
funds in an amount sufficient from the applicable Participant to fund such
portion of a Revolving Euro Borrowing. Amounts so received by the Applicable
Agent will promptly be made available to the relevant Borrower by the Applicable
Agent crediting the account of such Borrower on the books of such office with
the aggregate of the amounts made available to the Applicable Agent by the
Lenders and in like funds as received by the Applicable Agent; provided that ABR
Revolving Loans made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(f) shall be remitted by the Administrative Agent to the
--------
Issuing Bank.
SECTION 2.03. Conversion and Continuation Options for Loans. (a) Each
------------------------------------------------
Borrower may elect from time to time to convert (i) Eurocurrency Loans that are
in Dollars to ABR Loans by giving the Administrative Agent prior notice of such
election not later than 10:00 a.m., New York City time,
-55-
on the Business Day prior to a requested conversion or (ii) ABR Loans to
Eurocurrency Loans by giving the Administrative Agent prior notice of such
election not later than 11:00 a.m., London time, three Business Days prior to a
requested conversion; provided that if any such conversion of Eurocurrency Loans
--------
is made other than on the last day of an Interest Period with respect thereto,
such Borrower shall pay any amounts due to the Lenders pursuant to Section 2.17
as a result of such conversion. Any such notice of conversion to Eurocurrency
Loans shall specify the length of the initial Interest Period or Interest
Periods therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of the outstanding
Eurocurrency Loans or ABR Loans may be converted as provided herein; provided
--------
that (i) no Loan may be converted into a Eurocurrency Loan when any Default or
Event of Default has occurred and is continuing and (ii) no Loan may be
converted into a Eurocurrency Loan after the date that is one month prior to the
Revolving Credit Maturity Date or the Term B Loan Maturity Date, as applicable.
(b) Any Eurocurrency Loans may be continued as such upon the expiration of
the then current Interest Period with respect thereto by the relevant Borrower
giving prior notice to the Applicable Agent, not later than 11:00 a.m., London
time, three Business Days prior to a requested continuation setting forth the
length of the next Interest Period to be applicable to such Loans; provided that
--------
no Eurocurrency Loan may be continued as such (i) when any Default or Event of
Default has occurred and is continuing or (ii) after the date that is one month
prior to the Revolving Credit Maturity Date or the Term B Loan Maturity Date, as
applicable; and provided, further, that if such Borrower shall fail to give any
------------------
required notice as described above in this Section 2.03 or if such continuation
is not permitted pursuant to the preceding proviso, then (A) in the case of
Loans in Euros or Pounds Sterling, such Loans shall continue as Eurocurrency
Loans bearing interest at a rate determined by reference to the LIBO Rate with
an Interest Period of one month commencing on the last day of the then current
Interest Period or (B) in the case of Loans in Dollars, such Loans shall be
automatically converted to ABR Loans on the last day of such then expiring
Interest Period (in which case the Administrative Agent shall notify Crown
Holdings of such conversion).
(c) In connection with (i) any weekly Eurocurrency Loans, there shall be no
more than three (3) Eurocurrency Borrowings outstanding for the Euro Borrower
and one (1) Eurocurrency Borrowing for the U.S. Borrower, at any time and (ii)
any other Eurocurrency Loans, there shall be no more than ten (10) Interest
Periods outstanding at any time.
SECTION 2.04. [Reserved].
----------
SECTION 2.05. Optional and Mandatory Prepayments of Loans; Repayments of
------------------------------------------------------------
Term B Loans. (a) Each Borrower may at any time and from time to time prepay the
------------
Loans (subject, in the case of Eurocurrency Loans, to compliance with the terms
of Section 2.17), in whole or in part, without premium or penalty, upon
irrevocable notice to the Applicable Agent
-56-
not later than 12:00 noon, London time, three Business Days prior to the date of
such prepayment, specifying (x) the date and amount of prepayment, and (y)
whether the prepayment is of Eurocurrency Loans, ABR Loans or a combination
thereof (including in the case of Eurocurrency Loans, the Borrowing to which
such prepayment is to be applied and, if of a combination thereof, the amount
allocable to each). Upon receipt of any such notice the Administrative Agent
shall promptly notify each relevant Lender thereof. If any such notice is given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with accrued interest to such date on the amount
prepaid. Partial prepayments of Loans shall be in an aggregate principal amount
of $5.0 million, (euro)5.0 million or (pound)5.0 million, as applicable, or a
whole multiple of $1.0 million, (euro)1.0 million or (pound)1.0 million, as
applicable, in excess thereof (or, if less, the remaining outstanding principal
amount thereof). All optional prepayments shall be made by the Borrowers on a
pro rata basis between the Term B Dollar Loans and the Term B Euro Loans.
--------
(b) In the event and on such occasion that (i) the Aggregate Dollar
Revolving Credit Exposure exceeds the Total Dollar Revolving Credit Commitment,
the U.S. Borrower shall prepay Revolving Dollar Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in a Collateral Account with
the Administrative Agent pursuant to Section 2.06(k)) in an aggregate amount
equal to such excess or (ii) the Dollar Equivalent (for this purpose only,
determined with respect to each Revolving Euro Borrowing as of the date of such
Revolving Euro Borrowing) of the Aggregate Euro Revolving Credit Exposure
exceeds the Total Euro Revolving Credit Commitment, the Euro Borrower shall
prepay, or cause one or more Subsidiary Borrowers to prepay, Revolving Euro
Borrowings in an aggregate amount equal to such excess.
(c) In the event that, as of the last day of each month after the Effective
Date, the Dollar Equivalent as of such day of the Aggregate Euro Revolving
Credit Exposure exceeds the Total Euro Revolving Credit Commitment, then (i) on
such date, the U.K. Administrative Agent shall notify the Euro Borrower and the
Revolving Euro Lenders of the amount of such excess and the sum of the resulting
Aggregate Euro Revolving Credit Exposure and (ii) the Euro Borrower shall
prepay, or cause one or more Subsidiary Borrowers to prepay, an amount
sufficient to reduce the Aggregate Euro Revolving Credit Exposure, after giving
effect to such prepayment, so that the Dollar Equivalent thereof is less than or
equal to the Total Euro Revolving Credit Commitment.
(d) (i) (A) If, subsequent to the Effective Date and until such time as the
Retained Public Debt is refinanced in full or an amount sufficient to refinance
in full the Retained Public Debt is on deposit in the Retained Public Debt
Collateral Account (the "Retained Public Debt Refinancing Date"), Crown Holdings
-------------------------------------
shall issue any Equity Interests or Equity Rights (it being understood that the
issuance of debt securities convertible into, or exchangeable or exercisable
for, any Equity Interest or Equity Rights shall be governed by Section
2.05(d)(ii) below) (other than Excluded Equity Issuances) (each, an "Equity
------
Issuance"),
--------
-57-
100% of the Net Proceeds thereof shall be applied immediately after receipt
thereof toward the prepayment of the Term B Loans, pro rata among the Term B
--------
Dollar Loans and the Term B Euro Loans, and in accordance with Section 2.05(f)
below; provided that Crown Holdings shall be permitted to retain Net Proceeds of
--------
issuances of Equity Interests or Equity Rights of Crown Holdings to repay or
repurchase Retained Public Debt so long as such Net Proceeds are immediately
used to repay or repurchase Retained Public Debt or placed in either Retained
Public Debt Collateral Account (as determined by Crown Holdings) and only
released to repay or repurchase Retained Public Debt in accordance with the
terms of the U.S. Retained Collateral Account Agreement or the Euro Public Debt
Retained Collateral Account Agreement, as applicable, and (B) if, subsequent to
the Retained Public Debt Refinancing Date, Crown Holdings shall consummate an
Equity Issuance, the Borrowers shall prepay the Term B Loans in an amount equal
to 50% of the Net Proceeds immediately after receipt thereof, pro rata among the
--------
Term B Dollar Loans and the Term B Euro Loans, and in accordance with Section
2.05(f) below; provided, further, that to the extent the Leverage Condition has
------------------
been satisfied, Crown Holdings shall be permitted to retain all Net Proceeds of
such issuances of Equity Interests or Equity Rights;
(ii) If, subsequent to the Effective Date, (a) Crown Holdings or any of its
Subsidiaries shall incur or permit the incurrence of any Indebtedness (including
pursuant to debt securities which are convertible into, or exchangeable or
exercisable for, any Equity Interest or Equity Rights) (other than Excluded Debt
Issuances) (each, a "Debt Incurrence") or (b) any Intercompany Loan (other than
----------------
the French Ongoing Loans) shall be repaid, the Borrowers shall prepay the Term B
Loans in an amount equal to 100% of the Net Proceeds thereof immediately after
receipt thereof, pro rata among the Term B Dollar Loans and the Term B Euro
--------
Loans, and in accordance with Section 2.05(f) below;
(iii) If, subsequent to the Effective Date, Crown Holdings or any of its
Subsidiaries shall receive Net Proceeds from any Asset Sale, the Borrowers shall
prepay the Term B Loans in an amount equal to 100% of such Net Proceeds
immediately after receipt thereof, pro rata among the Term B Dollar Loans and
--------
the Term B Euro Loans, and in accordance with Section 2.05(f) below; provided
--------
that (x) the Net Proceeds from one or more Asset Sales permitted by Section 6.05
and not exceeding $15 million in the aggregate during any Fiscal Year (an
"Excluded Asset Sale") shall not be required to be applied as provided herein on
-------------------
such date if and to the extent that (1) no Default or Event of Default then
exists or would arise therefrom and (2) Crown Holdings delivers an officers'
certificate to the Administrative Agent on or prior to such date stating that
such Net Proceeds shall be reinvested in capital assets of Crown Holdings or any
Subsidiary in each case within 270 days following the date of such Excluded
Asset Sale (which certificate shall set forth the estimates of the proceeds to
so expended), (y) all such Net Proceeds from such Excluded Asset Sale shall be
held in the Dollar Collateral Account or Euro Collateral Account, as applicable,
and released therefrom only in accordance with the terms of the U.S. Security
Agreement or the Euro Collateral Account Agreements, as applicable, and (z) if
all or any portion of such Net Proceeds not so applied
-58-
as provided herein is not so used within such 270 day period, such remaining
portion shall be applied on the last day of such period as specified in this
subsection (d)(iii); provided, further, if the Property subject to such Excluded
-----------------
Asset Sale constituted Collateral under the Security Documents, then any capital
assets purchased with the Net Proceeds thereof pursuant to this subsection shall
be mortgaged or pledged, as the case may be, to the applicable Collateral Agent,
for its benefit and for the benefit of the other applicable Lenders in
accordance with Section 5.11;
(iv) If, subsequent to the Effective Date, Crown Holdings or any of its
Subsidiaries shall receive proceeds from insurance recoveries in respect of any
Destruction (but in any event excluding proceeds of business interruption or
rent insurance not otherwise used for repair) or any proceeds or awards in
respect of any Taking, the Borrowers shall prepay the Term B Loans in an amount
equal to 100% of the Net Proceeds thereof immediately after receipt thereof, pro
---
rata among the Term B Dollar Loans and the Term B Euro Loans, and in accordance
----
with Section 2.05(f) below; provided that (x) so long as no Default or Event of
--------
Default then exists or would arise therefrom, such Net Proceeds shall not be
required to be so applied on such date to the extent that Crown Holdings has
delivered an officers' certificate to the Administrative Agent on or prior such
date stating that such proceeds shall be used to (1) repair, replace or restore
any Property in respect of which such Net Proceeds were paid or (2) fund the
substitution of other Property used or usable in the business of Crown Holdings
and its Subsidiaries, in each case within 270 days following the date of the
receipt of such Net Proceeds, (y) all such Net Proceeds in excess of $10.0
million shall be held in the Dollar Collateral Account or the Euro Collateral
Account, as applicable, and released therefrom only in accordance with the terms
of the U.S. Security Agreement or the Euro Collateral Account Agreements, as
applicable, and (z) if all or any portion of such Net Proceeds not required to
be applied to the prepayment of Term B Loans pursuant to the preceding proviso
is not so used within 270 days after the date of the receipt of such Net
Proceeds, such remaining portion shall be applied on the last day of such period
as specified in this subsection (d)(iv); provided, further, if the Property
------------------
subject to such Destruction or Taking constituted Collateral under the Security
Documents, then any replacement or substitute Property purchased with the Net
Proceeds thereof pursuant to this subsection shall be mortgaged or pledged, as
the case may be, to the applicable Collateral Agent, for its benefit and for the
benefit of the other applicable Lenders in accordance with Section 5.11; and
(v) If, for any Fiscal Year of Crown Holdings commencing with its Fiscal
Year ending on December 31, 2003, there shall be Excess Cash Flow for such
fiscal year, the Borrowers shall prepay the Term B Loans in an amount equal to
75% of such Excess Cash Flow not later than the earlier of (x) 100 days after
the end of such Fiscal Year, or (y) 10 days after the date upon which Crown
Holdings is required by the SEC to file its annual report on Form 10-K, pro rata
--------
among the Term B Dollar Loans and the Term B Euro Loans, and in accordance with
Section 2.05(f) below; provided that when and for as long as the Leverage
--------
Condition is satisfied, such percentage of Excess Cash Flow shall be reduced to
50%;
-59-
provided, further, that the Borrowers shall be permitted to retain Excess Cash
------------------
Flow to repay or repurchase Retained Public Debt so long as (i) such Excess Cash
Flow is immediately used to repay or repurchase Retained Public Debt or placed
in either Retained Public Debt Collateral Account (as determined by Crown
Holdings) and only released in accordance with the terms of the U.S. Retained
Collateral Account Agreement and the Euro Retained Collateral Account Agreement
and (ii) if any Retained Public Debt is refinanced with any source of funds
other than such Excess Cash Flow or Net Proceeds of issuances of Equity
Interests or Equity Rights of Crown Holdings, upon the consummation of such
refinancing, an amount of Excess Cash Flow will be released from the applicable
Retained Public Debt Collateral Account to repay or repurchase Retained Public
Debt in accordance with the terms of the U.S. Retained Collateral Account
Agreement or the Euro Retained Collateral Account Agreement, as applicable, that
equals the amount of Excess Cash Flow and Net Proceeds of issuances of Equity
Interests or Equity Rights of Crown Holdings in the Retained Public Debt
Collateral Accounts less the principal amount of Retained Public Debt then
outstanding, and such amount released shall be used to repay Term B Loans in
accordance with this Section 2.05(d)(v).
(e) The Term B Loans shall be repaid in consecutive annual installments on
the dates set forth below (each such day, an "Installment Payment Date"),
--------------------------
commencing on January 15, 2004, in an aggregate amount equal to the amount
specified for each such Installment Payment Date.
--------------------------------------------------------------------------------
Term B Dollar Term B Euro
Installment Installment
Installment Payment Date Amount Amount
------------------------ ------ ------
--------------------------------------------------------------------------------
January 15, 2004 $22,500,000 (euro)2,500,000
--------------------------------------------------------------------------------
January 15, 2005 $22,500,000 (euro)2,500,000
--------------------------------------------------------------------------------
January 15, 2006 $22,500,000 (euro)2,500,000
--------------------------------------------------------------------------------
January 15, 2007 $22,500,000 (euro)2,500,000
--------------------------------------------------------------------------------
January 15, 2008 $22,500,000 (euro)2,500,000
--------------------------------------------------------------------------------
Term B Loan Maturity Date All Remaining Principal All Remaining Principal
--------------------------------------------------------------------------------
(f) Prepayments of Term B Loans made by the applicable Borrower thereof
pursuant to Sections 2.05(a) and (d) shall be applied, first, to the
-----
amortization payments under the Term B Loans due within 12 months of the date of
such prepayment in order of maturity, and, second, to remaining installments of
------
principal on a pro rata basis; provided that if no Term B Loans remain
--------- --------
outstanding at the time of such prepayment, prepayments shall be applied pro
---
rata to permanently reduce the Revolving Credit Commitments as set forth in
----
Section 2.11(c). Any prepayment of Loans pursuant to this Section 2.05 shall be
applied, first, in the case of any Term B Dollar Loans, to any ABR Loans then
-----
outstanding and, in the case of all Term B Loans, the balance of such
prepayment, if any, to the Eurocurrency Loans then outstanding.
-60-
(g) The Borrowers agree to prepay Revolving Loans so that for a period of
at least 20 consecutive days in any period of twelve consecutive months, the
Dollar Equivalent of the unpaid aggregate principal amount of outstanding
Revolving Loans (excluding any LC Exposure) shall not exceed $75.0 million.
(h) The Borrowers agree to execute and deliver the U.S. Retained Collateral
Account Agreement and the Euro Retained Collateral Account Agreement upon the
first deposit of funds into the Retained Collateral Accounts pursuant to this
Section 2.05.
SECTION 2.06. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein, the U.S.
-------
Borrower may request the issuance of Letters of Credit for its own account or of
any Subsidiary of Crown Holdings, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Credit Commitment Period, but in any event, no later than
the thirtieth day before the Revolving Credit Maturity Date. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the U.S. Borrower to, or entered into by the U.S. Borrower with,
the Issuing Bank relating to any Letter of Credit, the terms and conditions of
this Agreement shall control. Each Letter of Credit shall be in Dollars.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
----------------------------------------------------------------------
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the U.S. Borrower shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (two Business Days in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (d) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the U.S. Borrower also shall
submit a letter of credit application on the Issuing Bank's standard form in
connection with any request for a Letter of Credit. The Administrative Agent
shall promptly notify the Lenders of the issuance of any Letters of Credit or
amendment thereof, and if requested by any Lender, shall furnish such Lender
with a copy of such Letter of Credit or amendment. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the U.S. Borrower shall be deemed
to represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension, (i) the LC Exposure shall not exceed $150.0 million and
-61-
(ii) the Aggregate Dollar Revolving Credit Exposure shall not exceed the Total
Revolving Dollar Credit Commitment. With respect to any Letter of Credit which
contains any "evergreen" automatic renewal provision, the Issuing Bank shall be
deemed to have consented to any such extension or renewal provided that all of
the requirements of this Section 2.06 are met and no Default or Event of Default
exists.
(c) Requests for Credit Support. Each Revolving Dollar Lender agrees for
----------------------------
the benefit of the Issuing Bank and the U.S. Borrower that the Issuing Bank may
request at the time that such Revolving Dollar Lender becomes a party to this
Agreement that such Revolving Dollar Lender provide cash credit support for its
pro rata portion of Letters of Credit issued from time to time under this
Agreement (each, an "LC Support Bank"). Upon request for the issuance of a
----------------
Letter of Credit by the U.S. Borrower to the Issuing Bank, the Issuing Bank
shall notify each LC Support Bank of the amount of cash credit support that it
needs to fund to the Issuing Bank. Each LC Support Bank shall promptly fund such
cash credit support to the Issuing Bank. The U.S. Borrower agrees that as
between itself and the Issuing Bank and without releasing any claim it may have
against a defaulting LC Support Bank shall not be required to issue any Letter
of Credit if (and to the extent that) each LC Support Bank has not provided such
cash credit support to the reasonable satisfaction of the Issuing Bank, unless
the U.S. Borrower shall provide any unfunded cash credit support for such Letter
of Credit to the reasonable satisfaction of the Issuing Bank (it being
understood that the Issuing Bank shall provide the U.S. Borrower with prompt
notice of any failure by an LC Support Bank and the unfunded cash credit support
amount required so that such Letter of Credit may be issued in on a timely
basis). Without limiting any rights or remedies hereunder, any LC Support Bank
that defaults in its obligations under this paragraph (c) with respect to any
Letter of Credit shall not be entitled to any participation fees under Section
2.10(b) with respect to such Letter of Credit, but shall remain obligated under
Sections 2.06(e) and (f) with respect to such Letter of Credit.
(d) Expiration Date. Each Letter of Credit shall expire at or prior to the
----------------
close of business on the earlier of (i) the date one year after the date of the
issuance of such Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the date that is
five Business Days prior to the Revolving Credit Maturity Date.
(e) Participations. By the issuance of a Letter of Credit (or an amendment
--------------
to a Letter of Credit increasing the amount thereof) and without any further
action on the part of the Issuing Bank or the Lenders, the Issuing Bank hereby
grants to each Revolving Dollar Lender, and each Revolving Dollar Lender hereby
acquires from the Issuing Bank,
-62-
a participation in such Letter of Credit equal to such Revolving Dollar Lender's
Commitment Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
Revolving Dollar Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of the Issuing Bank, such Revolving
Dollar Lender's Commitment Percentage of each LC Disbursement made by the
Issuing Bank and not reimbursed by the U.S. Borrower on the date due as provided
in paragraph (f) of this Section, or of any reimbursement payment required to be
refunded to the U.S. Borrower for any reason. Each Revolving Dollar Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or an Event of Default or reduction or termination of
the Revolving Credit Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(f) Reimbursement. If the Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the U.S. Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the U.S. Borrower shall have received notice of
such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or,
if such notice has not been received by the U.S. Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that the U.S. Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the U.S. Borrower receives
such notice, if such notice is not received prior to such time on the day of
receipt; provided that the U.S. Borrower may, subject to the conditions to
--------
borrowing set forth herein, request in accordance with Section 2.02 or 2.04 that
such payment be financed with an ABR Revolving Dollar Borrowing in an equivalent
amount and, to the extent so financed, the U.S. Borrower's obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving
Dollar Borrowing. If the U.S. Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Dollar Lender of the applicable
LC Disbursement, the payment then due from the U.S. Borrower in respect thereof
and such Revolving Dollar Lender's Commitment Percentage thereof. Promptly
following receipt of such notice, each Revolving Dollar Lender shall pay to the
Administrative Agent its Commitment Percentage of the payment then due from the
U.S. Borrower, in the same manner as provided in Section 2.02 with respect to
Revolving Dollar Loans made by such Revolving Dollar Lender (and Section 2.02
shall apply, mutatis mutandis, to the payment obligations of the Revolving
-----------------
Dollar Lenders), and the Administrative Agent shall promptly pay to the Issuing
Bank the amounts so received by it from the Revolving Dollar Lenders. Promptly
following receipt by the Administrative Agent of any payment from the U.S.
Borrower pursuant to this paragraph, the Administrative Agent shall distribute
such payment to the Issuing Bank or, to the extent that Revolving Dollar Lenders
have made payments pursuant to this paragraph to reimburse the Issuing Bank,
then to such Revolving Dollar Lenders and the Issuing Bank as their interests
may appear. Any payment made by a Revolving Dollar Lender pursuant to this
paragraph to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Dollar Loans as contemplated above) shall not
constitute a Revolving Dollar Loan and shall not relieve the U.S. Borrower of
its obligation to reimburse such LC Disbursement.
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(g) Obligations Absolute. The U.S. Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (f) of this Section 2.06 shall be
absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any
draft or other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the U.S. Borrower's obligations hereunder.
Neither the Administrative Agent, the Revolving Dollar Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit or any payment or failure to make any payment thereunder
(irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any
Letter of Credit (including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence arising from
causes beyond the control of the Issuing Bank; provided that the foregoing shall
--------
not be construed to excuse the Issuing Bank from liability to the U.S. Borrower
to the extent of any direct damages (as opposed to consequential damages, claims
in respect of which are hereby waived by the U.S. Borrower to the extent
permitted by applicable law) suffered by the U.S. Borrower to the extent caused
(as determined by a court of competent jurisdiction) by the Issuing Bank's gross
negligence or willful misconduct. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, the Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(h) Disbursement Procedures. The Issuing Bank shall, promptly following its
-----------------------
receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the U.S. Borrower by telephone (confirmed by telecopy)
of such demand for payment and whether the Issuing Bank has made or will make an
LC Disbursement thereunder; provided that any failure to give or delay in giving
--------
such notice shall not relieve the U.S. Borrower of its obligation to reimburse
the Issuing Bank and the Revolving Dollar Lenders with respect to any such LC
Disbursement.
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(i) Interim Interest. If the Issuing Bank shall make any LC Disbursement,
-----------------
then, unless the U.S. Borrower shall reimburse such LC Disbursement in full on
the date such LC Disbursement is made, the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the U.S. Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Dollar
Loans; provided that, if the U.S. Borrower fails to reimburse such LC
--------
Disbursement when due pursuant to paragraph (f) of this Section 2.06, then
Section 2.08(c) shall apply. Interest accrued pursuant to this paragraph shall
be for the account of the Issuing Bank, except that interest accrued on and
after the date of payment by any Revolving Dollar Lender pursuant to paragraph
(f) of this Section 2.06 to reimburse the Issuing Bank shall be for the account
of such Revolving Dollar Lender to the extent of such payment.
(j) Replacement of the Issuing Bank. The Issuing Bank may be replaced at
--------------------------------
any time by written agreement among the U.S. Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the U.S. Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank
pursuant to Section 2.10(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to refer to such successor or to any previous Issuing
Bank, or to such successor and all previous Issuing Banks, as the context shall
require. After the replacement of an Issuing Bank hereunder, the replaced
Issuing Bank shall remain a party hereto and shall continue to have all the
rights and obligations of an Issuing Bank under this Agreement with respect to
Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(k) Cash Collateralization. If any Default or Event of Default shall occur
and be continuing, on the Business Day that the U.S. Borrower receives notice
from the Administrative Agent or the Requisite Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Dollar Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the U.S. Borrower shall deposit in
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in cash equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided
--------
that the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Default or Event
of Default described in clause (i) of Section 7.01. Each such deposit shall be
held by the Administrative Agent as collateral for the payment
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and performance of the obligations of the U.S. Borrower under this Agreement and
the U.S. Borrower hereby grants the Administrative Agent a security interest in
respect of each such deposit and the account in which such deposits are held.
The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the U.S.
Borrower's risk and expense, such deposits shall not bear interest. Interest or
profits, if any, on such investments shall accumulate in such account. Moneys in
such account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and, to
the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of the U.S. Borrower for the LC Exposure at such time
or, if the maturity of the Loans has been accelerated (but subject to the
consent of Revolving Dollar Lenders with LC Exposure representing greater than
50% of the total LC Exposure), be applied to satisfy other obligations of the
Borrowers under this Agreement. If the U.S. Borrower is required to provide an
amount of cash collateral hereunder as a result of the occurrence of a Default
or Event of Default, such amount (to the extent not applied as aforesaid) shall
be returned to the U.S. Borrower within three Business Days after all Defaults
or Events of Default have been cured or waived.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) Each Borrower
--------------------------------------
hereby unconditionally promises to pay to the Applicable Agent for the account
of the relevant Lenders (i) in respect of Revolving Credit Borrowings of such
Borrower, on the Revolving Credit Maturity Date (or such earlier date as, and to
the extent that, such Revolving Loan becomes due and payable pursuant to Section
2.04, Section 2.05, Section 2.12, Section 2.14, or Article VII), the unpaid
principal amount of each Revolving Loan made to it by each such Lender, in the
applicable currency of such Loan and (ii) in respect of Term B Borrowings of
such Borrower, on the Term B Loan Maturity Date (or such earlier date as, and to
the extent that, such Term B Loan becomes due and payable pursuant to Section
2.05, Section 2.12, Section 2.14 or Article VII), the unpaid principal amount of
each Term B Loan made to it by each such Term B Lender, in the applicable
currency of such Loan. Each Borrower hereby further agrees to pay interest in
immediately available funds (in the applicable currency of each Loan) at the
office of the Applicable Agent (as specified in Section 2.13(a)) on the unpaid
principal amount of the Revolving Loans and Term B Loans made to it from time to
time from the date hereof until payment in full thereof at the rates per annum,
and on the dates, set forth in Section 2.08.
(b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of each Borrower to the
appropriate lending office of such Lender resulting from each Loan made by such
lending office of such Lender from time to time, including the applicable
currency and amounts of principal and interest payable and paid to such lending
office of such Lender from time to time under this Agreement.
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(c) The Applicable Agent shall maintain the Register pursuant to Section
10.04, and a subaccount for each Lender, in which Register and subaccounts
(taken together) shall be recorded (i) the currency of each Loan made hereunder,
the amount of each such Loan, the Class and Type of each such Loan, and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder in respect of each such Loan and (iii) the amount of any sum received
by the Applicable Agent hereunder from each Borrower in respect of each such
Loan and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant to
paragraphs (b) and (c) of this Section 2.07 and the Notes maintained pursuant to
paragraph (e) of this Section 2.07 shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the obligations of
each Borrower therein recorded; provided, however, that the failure of any
------------------
Lender or the Applicable Agent to maintain such account, such Register or such
subaccount, as applicable, or any error therein, shall not in any manner affect
the obligation of any Borrower to repay (with applicable interest) the Loans
made to such Borrower by such Lender in accordance with the terms of this
Agreement.
(e) The Loans of each Class made by each Lender to each Borrower shall, if
requested by the applicable Lender (which request shall be made to the
Applicable Agent), be evidenced by one or more Notes duly executed on behalf of
such Borrower, in substantially the form attached hereto as Exhibit F-1 or F-2,
----------- ---
as applicable, with the blanks appropriately filled, payable to the order of
such Lender.
SECTION 2.08. Interest Rates and Payment Dates. (a) Each Eurocurrency Loan
--------------------------------
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days, except in the case of Eurocurrency Revolving Credit
Borrowings denominated in Pounds Sterling, which shall bear interest computed on
the basis of the actual number of days elapsed over a year of 365 days) for each
day during each Interest Period with respect thereto at a rate per annum equal
to:
(i) in the case of a Eurocurrency Revolving Credit Borrowing
denominated in Pounds Sterling or Euros, (A) the LIBO Rate determined for
such Interest Period, plus (B) the Applicable Rate for Eurocurrency
Revolving Loans, plus (C) the Mandatory Cost;
----
(ii) in the case of a Eurocurrency Revolving Credit Borrowing
denominated in Dollars, (A) the Adjusted LIBO Rate determined for such
Interest Period, plus (B) the Applicable Rate for Eurocurrency Revolving
----
Loans; or
(iii) in the case of a Eurocurrency Term B Borrowing, (A) the Adjusted
LIBO Rate determined for such Interest Period plus (B) the Applicable Rate
----
for Eurocurrency Term B Loans.
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(b) Each ABR Revolving Loan shall bear interest (computed on the basis of
the actual number of days elapsed over a year of 365 or 366 days, as the case
may be, or over a year of 360 days when the Alternate Base Rate is determined by
reference to clause (c) of the definition of "Alternate Base Rate") at a rate
per annum equal to:
(i) in the case of ABR Revolving Loans, (A) the Alternate Base Rate
plus (B) the Applicable Rate for ABR Revolving Loans; or
----
(ii) in the case of ABR Term B Loans, the (A) Alternate Base Rate plus
----
(B) the Applicable Rate for ABR Term B Loans.
(c) If all or a portion of (i) the principal amount of any Loan, (ii) any
interest payable thereon or (iii) any Commitment Fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity thereof or
by acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum which is (x) in the case of overdue principal (except as otherwise
provided in clause (y) below), the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section 2.08 plus 2.00% per
----
annum or (y) in the case of any overdue interest, Commitment Fee or other
amount, the rate described in Section 2.08(b) applicable to an ABR Revolving
Loan plus 2.00% per annum, in each case from the date of such nonpayment to (but
----
excluding) the date on which such amount is paid in full (after as well as
before judgment).
(d) Interest on each Loan shall be payable in the currency in which such
Loan is made. Interest shall be payable in arrears on each Interest Payment Date
and on the Term B Loan Maturity Date and Revolving Credit Maturity Date;
provided that (i) interest accrued pursuant to paragraph (c) of this Section
--------
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan, accrued interest on the principal amount repaid or prepaid shall be
payable on the date of such repayment or prepayment and (iii) in the event of
any conversion of any Eurocurrency Loan prior to the end of the current Interest
Period therefor, accrued interest on such Loan shall be payable on the effective
date of such conversion. Interest in respect of each Loan shall accrue from and
including the first day of an Interest Period to but excluding the last day of
such Interest Period.
SECTION 2.09. Computation of Interest. Each determination of an interest
-----------------------
rate by the Applicable Agent pursuant to any provision of this Agreement shall
be conclusive and binding on the Borrowers and the Lenders in the absence of
manifest error.
SECTION 2.10. Fees. (a) The U.S. Borrower agrees to pay a commitment fee (a
----
"Commitment Fee") to each Revolving Dollar Lender, and the Euro Borrower agrees
--------------
to pay a Commitment Fee to each Revolving Euro Lender, in each case for which
payment will be made in arrears through the Administrative Agent on the last day
of March, June, September and December, and on the Commitment Fee Termination
Date (as defined below). The Commitment Fee due to each Revolving Lender shall
commence to accrue on the date
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of this Agreement and shall cease to accrue on the date (the "Commitment Fee
---------------
Termination Date") that is the later of (i) the date on which the applicable
-----------------
Revolving Credit Commitment of such Revolving Lender shall be terminated as
provided herein and (ii) the date after the end of the Revolving Credit
Commitment Period. The Commitment Fee accrued to each Revolving Lender shall
equal the Commitment Fee Percentage multiplied by such Revolving Lender's
Commitment Fee Average Daily Amount (as defined below) for the applicable
quarter (or shorter period commencing on the date of this Agreement or ending
with such Lender's Commitment Fee Termination Date). A Revolving Lender's
"Commitment Fee Average Daily Amount" with respect to a calculation period shall
-----------------------------------
equal the average daily amount during such period calculated using the daily
amount of (i) in the case of a Revolving Dollar Lender, such Revolving Dollar
Lender's Revolving Dollar Credit Commitment less such Revolving Dollar Lender's
Revolving Dollar Credit Exposure, and (ii) in the case of a Revolving Euro
Lender, such Revolving Euro Lender's Revolving Euro Credit Commitment less the
Dollar Equivalent of such Revolving Euro Lender's Revolving Euro Credit
Exposure, in each case, for any applicable days during such Revolving Lender's
Revolving Credit Commitment Period. All Commitment Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days. The U.S.
Borrower shall pay all Commitment Fees in respect of Revolving Dollar Credit
Commitments in Dollars. The Euro Borrower shall pay all Commitment Fees in
respect of Revolving Euro Credit Commitments in Euros.
(b) The U.S. Borrower agrees to pay (i) to the Administrative Agent for the
account of each Revolving Dollar Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate equal to the
Applicable Rate for Eurocurrency Revolving Loans on the average daily amount of
such Revolving Dollar Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Revolving Dollar Lender's Revolving Dollar Credit Commitment terminates and
the date on which such Revolving Dollar Lender ceases to have any LC Exposure,
and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of
0.25% per annum on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period
from and including the Effective Date to but excluding the later of the date of
termination of the Revolving Dollar Lenders' Revolving Dollar Credit Commitments
and the date on which there ceases to be any LC Exposure, as well as the Issuing
Bank's standard fees with respect to the issuance, amendment, renewal or
extension of any Letter of Credit or processing of drawings thereunder.
Participation fees and fronting fees (collectively, "LC Fees") accrued through
-------
and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such
--------
fees shall be payable on the date on which the Revolving Dollar Lenders'
Revolving Dollar Credit Commitments terminate and any such fees accruing after
the date on which the Revolving Dollar Lenders' Revolving Dollar Credit
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days
elapsed.
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(c) The Euro Borrower agrees to pay to the Administrative Agent the
administrative and other fees separately agreed upon by CCSC and the
Administrative Agent to be payable to the Administrative Agent for its own
account (the "Agent Fees"). The Euro Borrower shall pay all Agent Fees in
-----------
Dollars.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution. Once paid, none of the Fees
shall be refundable.
(e) CCSC agrees to pay to the Euro Collateral Agent the fees set out in the
fee letter separately agreed between CCSC and the Euro Collateral Agent to be
payable to the Euro Collateral Agent for its own account.
SECTION 2.11. Termination, Reduction or Adjustment of Commitments. (a)
------------------------------------------------------
Unless previously terminated, (i) the Term B Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date and (ii) the Revolving Credit
Commitments shall terminate on the Revolving Credit Maturity Date.
(b) The U.S. Borrower and the Euro Borrower shall have the right, upon one
Business Day's notice to the Applicable Agent, to terminate or, from time to
time, reduce the amount of the Revolving Dollar Lenders' Revolving Dollar Credit
Commitments and the Revolving Euro Lenders' Revolving Euro Credit Commitments,
respectively; provided that (i) any such reduction shall be made pro rata
-------- --------
between the Revolving Dollar Credit Commitments and the Revolving Euro Credit
Commitments and (ii) no such termination or reduction of Revolving Dollar Credit
Commitments or Revolving Euro Credit Commitments shall be permitted if, after
giving effect thereto and to any repayments of the Revolving Loans made on the
effective date thereof, (i) the Aggregate Dollar Revolving Credit Exposure then
outstanding would exceed the Revolving Dollar Lenders' Total Dollar Revolving
Credit Commitment then in effect or (ii) the Dollar Equivalent of the Aggregate
Revolving Euro Credit Exposure then outstanding would exceed the Revolving Euro
Lenders' Total Euro Revolving Credit Commitment then in effect. Any such
reduction shall be in an amount equal to $2.0 million or a whole multiple of
$1.0 million in excess thereof and shall reduce permanently the Revolving Dollar
Lenders' Revolving Dollar Credit Commitments and the Revolving Euro Lenders'
Revolving Euro Credit Commitments, as applicable, then in effect.
(c) If any prepayment of Term B Borrowings would otherwise be required
pursuant to Section 2.05 but cannot be made because there are no Term B
Borrowings outstanding, or because the amount of the required prepayment exceeds
the outstanding amount of Term B Borrowings, then, on the date that such
prepayment is required, the Revolving Dollar Credit Commitments and the
Revolving Euro Credit Commitments shall be permanently reduced on a pro rata
--------
basis by an aggregate amount equal to the amount of the required prepayment, or
the excess of such amount over the outstanding amount of Term B Borrowings, as
the case may be.
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(d) If any Indebtedness is incurred under Section 6.01(a)(ix) in excess of
$25.0 million, the Revolving Euro Credit Commitments shall be permanently
reduced by the amount of such excess on the first date of such incurrence;
provided that this Section 2.11(d) shall no longer be effective on and after the
--------
Leverage Condition has been satisfied.
(e) The U.S. Borrower and the Euro Borrower shall pay to the Applicable
Agent for the account of the applicable Revolving Lenders, on each date of
termination or reduction of the Revolving Credit Commitments, the Commitment Fee
on the amount of the Revolving Credit Commitments so terminated or reduced
accrued to the date of such termination or reduction.
SECTION 2.12. Inability to Determine Interest Rate; Unavailability of
-----------------------------------------------------------
Deposits; Inadequacy of Interest Rate. (a) If prior to 12:00 noon, London time
--------------------------------------
on the Quotation Day, including an initial Interest Period, for a requested
Eurocurrency Borrowing:
(i) the Applicable Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market generally, adequate
and reasonable means do not exist for ascertaining the Adjusted LIBO Rate
or the LIBO Rate, as applicable, for the currency in which any Eurocurrency
Loan is denominated or the currency specified in the Borrowing Request for
such Eurocurrency Borrowing (the "Applicable Currency") for such Interest
--------------------
Period, or
(ii) the Applicable Agent shall have received notice from a majority
in interest of the Lenders of the applicable Class that the Adjusted LIBO
Rate or LIBO Rate, as applicable, determined or to be determined for such
Interest Period for the Applicable Currency will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by such
Lenders) of making or maintaining their affected Loans during such Interest
Period,
then the Applicable Agent shall give telecopy or telephonic notice thereof to
the Borrowers and the Lenders by 12:30 p.m., London time, on the same day. If
such notice is given under clause (a)(i) or (a)(ii) above, then any affected
Eurocurrency Loans shall not be converted or continued pursuant to Section 2.03
or made pursuant to a Borrowing Request, as the case may be, except as follows:
(I) In the case of Eurocurrency Loans that are in Euros or Pounds
Sterling, if the Euro Borrower so requests, no later than 1:00 p.m., London
time, on the same day, the affected Eurocurrency Loans shall be converted
-71-
or continued pursuant to Section 2.03 or made pursuant to a Borrowing
Request, as the case may be, but with an Interest Period of one month and
the amount of interest payable in respect of any such Eurocurrency Loan
shall be determined in accordance with the following provisions of this
Section 2.12(a)(I):
(A) if the U.K. Administrative Agent so requires, within five
days of such notification the U.K. Administrative Agent and the Euro
Borrower shall enter into negotiations with a view to agreeing on a
substitute basis for determining the rate of interest (a "Substitute
Interest Rate") which may be applicable to affected Eurocurrency Loans
in the future and any such Substitute Interest Rate that is agreed
shall take effect in accordance with its terms and be binding on each
party hereto; provided that the U.K. Administrative Agent may not
agree on any such Substitute Interest Rate without the prior consent
of each affected Lender;
(B) if no Substitute Interest Rate is agreed pursuant to Section
2.12(a)(I)(A), any such Eurocurrency Loan converted, continued or made
by the Lenders pursuant to this Section 2.12(a)(I) shall bear interest
during the subsequent Interest Period at the rate per annum determined
by the U.K. Administrative Agent pursuant to Section 2.08(a) except
that in the place of the LIBO Rate, in respect of Eurocurrency Loans
denominated in Euros or Pounds Sterling, the U.K. Administrative Agent
shall use the cost to the applicable Lender (as conclusively certified
by such Lender to the U.K. Administrative Agent with a copy to the
Euro Borrower and expressed as a rate per annum) of funding such Loan
from whatever source it shall reasonably select; and
(C) if the U.K. Administrative Agent has required the Euro
Borrower to enter into negotiations pursuant to Section 2.12(a)(I)(A),
the U.K. Administrative Agent may (acting on the instructions of the
Requisite Revolving Euro Lenders) declare that no further Eurocurrency
Revolving Loans in Euros or Pounds Sterling shall be converted,
continued or made unless a Substitute Interest Rate has been agreed by
the Euro Borrower and the U.K. Administrative Agent within 30 days of
the U.K. Administrative Agent having so required negotiations.
(II) Alternatively, in the case of Eurocurrency Revolving Loans in
Euros or Pounds Sterling, if the Euro Borrower so requests, no later than
1:00 p.m., London time, on the Quotation Day, the affected Eurocurrency
Revolving Loans in Euros shall be made in, or prepaid pursuant to Section
2.05 and reborrowed in Dollars in an amount that is the Dollar Equivalent
of the Euro amount of the affected Eurocurrency Revolving Loans on the
first day of such Interest Period. The provisions of clauses (a)(i) and
(a)(ii) above shall apply to the proposed Loans in Dollars
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(except that the time for a determination by or notice to the
Administrative Agent under clause (a)(i) or (a)(ii) shall be 2:00 p.m.,
London time, on such day and the time for notice by the Administrative
Agent to the Borrowers and the Lenders shall be 3:00 p.m., London time, on
such day), and should the Administrative Agent give a notice under clause
(a)(i) or (a)(ii) above with respect thereto, then, unless the Euro
Borrower requests by 10:00 a.m., London time, on the following Business Day
for the affected Loans to be converted, continued or made pursuant to
Section 2.12(a)(I), such Loans shall be converted, continued or made in
accordance with paragraph (III) below.
(III) Alternatively, (i) if the applicable Borrower fails to request
that the affected Eurocurrency Loans be converted, continued or made
pursuant to either paragraph (I) or (II) above or (ii) under the conditions
provided in paragraph (II) above for this paragraph (III) to apply or (iii)
if the affected Eurocurrency Loans are Term B Dollar Loans or Revolving
Dollar Loans, (x) any Eurocurrency Loans in Dollars requested to be made on
the first day of such Interest Period shall be made as ABR Loans, (y) any
Loans in Dollars that, on the first day of such Interest Period, were to
have been converted to or continued as Eurocurrency Loans shall be
continued as or converted to ABR Loans and (z) any Eurocurrency Revolving
Loans shall be prepaid on the first day of such Interest Period and, if
such day is during the Revolving Credit Commitment Period, the Dollar
Equivalent of such prepaid Revolving Euro Loans may simultaneously
therewith be reborrowed in Dollars as ABR Loans.
The Applicable Agent shall promptly withdraw such notice upon becoming
aware that the circumstances giving rise thereto shall no longer exist. Until
such notice has been withdrawn by the Applicable Agent, no further Eurocurrency
Loans in Euros or Pound Sterling shall be made or continued as such, nor shall
any Borrower have the right to convert ABR Loans to Eurocurrency Loans in
Dollars, except as provided in Section 2.12(a)(I).
(b) If prior to 11:00 a.m., London time, on any Quotation Day for a
Borrowing in Euros or Pounds Sterling (including an initial Interest Period for
a requested Borrowing in Euros or Pounds Sterling) any Revolving Euro Lender
notifies the U.K. Administrative Agent and the Euro Borrower that, in its
reasonable and considered opinion, it would be unable at any cost, by reason of
circumstances affecting the relevant market generally, to obtain matching
deposits in Euros or Pound Sterling at the required time and in sufficient
amounts to fund its affected Revolving Euro Loan, then such Revolving Euro
Lender shall not be required to make or maintain a Revolving Euro Loan. In such
case, the Euro Borrower may request, no later than 1:00 p.m., London time, on
the same day, that the affected Revolving Euro Loan be made in, or prepaid
pursuant to Section 2.05 and simultaneously therewith reborrowed in, Dollars in
an amount that is the Dollar Equivalent of the Euro or Pound Sterling amount of
the affected Revolving Euro Loan on the first day of such Interest Period. The
first sentence of this clause (b) shall apply to the proposed Revolving Euro
Loan in Dollars (except that the time for notice to the Administrative Agent and
the Euro Borrower shall be 2:00 p.m., London time, on such day) and should any
Revolving Euro Lender give a notice under this clause
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(b) with respect thereto, or should the Euro Borrower fail to request a
Revolving Euro Loan in Dollars, then such Revolving Euro Lender shall instead
(as described in Section 2.12(a)(III) above) make the affected Loan in, or the
Euro Borrower shall prepay the affected Loan pursuant to Section 2.05 and
reborrow in, Dollars on the first day of such Interest Period. The U.K.
Administrative Agent shall, no later than 3:00 p.m., London time, on such day,
inform the Euro Borrower if any Revolving Euro Loans are to be made in or
prepaid and reborrowed in Dollars pursuant to this Section 2.12(b). A
Eurocurrency Borrowing comprised of two different currencies pursuant to this
Section 2.12(b) shall be referred to herein as a "Multicurrency Borrowing."
-----------------------
SECTION 2.13. Pro Rata Treatment and Payments. (a) Each reduction of the
--------------------------------
Revolving Credit Commitments of the Revolving Lenders shall be made pro rata
--------
between Classes of Revolving Lenders according to the amounts of Revolving
Lenders' Commitment Percentages of each Class. Each mandatory or optional
prepayment of Term B Loans shall be made pro rata between Classes of Term B
--------
Lenders according to the original aggregate principal amounts of the Term B
Loans of each Class made on the Effective Date. Each payment (including each
prepayment) by the U.S. Borrower on account of principal of and interest on
Loans which are ABR Loans shall be made pro rata according to the respective
--------
outstanding principal amounts of such ABR Loans then held by the Lenders of the
applicable Class. Each payment (including each prepayment) by the U.S. Borrower
on account of principal of and interest on Loans which are Eurocurrency Loans
designated by a Borrower to be applied to a particular Eurocurrency Borrowing
shall be made pro rata according to the respective outstanding principal amounts
--------
of such Loans then held by the Lenders of the applicable Class; provided that
--------
with respect to a single Multicurrency Borrowing payments made in the specific
currency of Eurocurrency Loans that are part of such Multicurrency Borrowing
shall be applied pro rata according to the outstanding principal amount of all
--------
Eurocurrency Loans included in such Multicurrency Borrowing that are denominated
in such currency; provided further, that if payments designated by the Borrower
----------------
for a particular Multicurrency Borrowing are not denominated in the appropriate
currencies required by the second succeeding sentence such that the Revolving
Credit Exposure of each Lender of the affected Class will be reduced pro rata in
--------
accordance with the Commitment Percentage of each Lender of the affected Class,
then, the Administrative Agent shall convert a portion of such payments into the
currencies required to so reduce the Revolving Credit Exposure of each Lender of
the affected Class pro rata after application of all such payments. All payments
--------
(including prepayments) to be made by a Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without setoff or
counterclaim and shall be made prior to 10:00 a.m., local time in the place of
payment, on the due date thereof to the Applicable Agent, for the account of the
Lenders of the applicable Class, in the case of Loans to the U.S. Borrower, at
the Administrative Agent's New York office specified in Section 10.01 and, in
the case of Loans to the Euro Borrower, at the U.K. Administrative Agent's
London office specified in Section 10.01, in the currency in which the
applicable obligation is denominated and in immediately available funds.
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The Applicable Agent shall distribute such payments to the Lenders entitled
thereto promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on Eurocurrency Loans) becomes due and payable on
a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a Eurocurrency Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day (and, with respect to payments of principal, interest thereon shall
be payable at the then applicable rate during such extension) unless the result
of such extension would be to extend such payment into another calendar month,
in which event such payment shall be made on the immediately preceding Business
Day.
(b) Subject to Section 2.12, unless the Applicable Agent shall have been
notified in writing by any Lender prior to a borrowing that such Lender will not
make the amount that would constitute its share of such borrowing available to
the Applicable Agent, the Applicable Agent may assume that such Lender is making
such amount available to the Applicable Agent, and the Applicable Agent may, in
reliance upon such assumption, make available to the relevant Borrower a
corresponding amount. If such amount is not made available to the Applicable
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Applicable Agent, on demand, such amount with interest thereon at a rate
equal to the daily average Federal Funds Rate for the period until such Lender
makes such amount immediately available to the Applicable Agent. A certificate
of the Applicable Agent submitted to any Lender with respect to any amounts
owing under this Section 2.13(b) shall be conclusive in the absence of manifest
error. If such Lender's share of such borrowing is not made available to the
Applicable Agent by such Lender within three Business Days of such Borrowing
Date, the Applicable Agent shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to ABR Revolving Loans
hereunder, on demand, from the relevant Borrower, but without prejudice to any
right or claim that such Borrower may have against such Lender.
(c) If at any time insufficient funds are received by and available to the
Applicable Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
SECTION 2.14. Illegality. Notwithstanding any other provision herein, if the
----------
adoption of or any change in any Requirement of Law, or in the interpretation or
application thereof, shall make it unlawful for any Lender to make or maintain
Eurocurrency Loans as contemplated by this Agreement,
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(a) the commitment of such Lender hereunder to make Eurocurrency Loans, continue
Eurocurrency Loans as such and convert ABR Loans to Eurocurrency Loans shall
forthwith be suspended until such time as the making or maintaining of
Eurocurrency Loans shall no longer be unlawful, (b) such Lender's Loans in
Dollars then outstanding as Eurocurrency Loans, if any, shall be converted
automatically to ABR Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as
required by law, and (c) such Lender's Eurocurrency Loans that are in Euros or
Pounds Sterling, if any, shall be prepaid on the respective last days of the
then current Interest Periods with respect to such Loans (or within such earlier
period as may be required by law).
SECTION 2.15. Requirements of Law. (a) The applicable Borrowers agree to
--------------------
reimburse each Lender or the Issuing Bank for any increase in the cost to such
Lender or the Issuing Bank of, or any reduction in the amount of any sum
receivable by such Lender or the Issuing Bank in respect of, making, continuing
or maintaining (or of its obligation to make, continue or maintain) any Loans
as, or of converting (or of its obligation to convert) any Loans into,
Eurocurrency Loans or participating in, issuing or maintaining any Letter of
Credit, including, without limitation, by reason of any requirements imposed by
the Board upon the making or funding of Eurocurrency Loans or participating in,
issuing or maintaining any Letter of Credit. Such Lender or the Issuing Bank, as
applicable, shall promptly notify the Applicable Agent and the relevant Borrower
in writing of the occurrence of any such event, such notice to state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Lender or the Issuing Bank, as applicable, for such increased
cost or reduced amount. Such additional amounts shall be payable directly to
such Lender or the Issuing Bank, as applicable, within five days of the relevant
Borrower's receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on such Borrower.
(b) If any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority after
the date hereof affects or would affect the amount of capital required or
expected to be maintained by any Lender or the Issuing Bank (or a holding
company controlling such Lender or the Issuing Bank) and such Lender or the
Issuing Bank determines (in its sole and absolute discretion) that the rate of
return on its capital (or the capital of its holding company, as the case may
be) as a consequence of its Revolving Credit Commitment or the Loans made by it
or any issuance, participation or maintenance of Letters of Credit is reduced to
a level below that which such Lender or the Issuing Bank (or its holding
company) could have achieved but for the occurrence of any such circumstance,
then, in any such case upon notice from time to time by such Lender or the
Issuing Bank to the relevant Borrower, the relevant Borrower shall immediately
pay directly to such Lender or the Issuing Bank, as the case may be, additional
amounts sufficient to compensate such Lender or the Issuing Bank (or its holding
company)
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for such reduction in rate of return. A statement of such Lender or the Issuing
Bank as to any such additional amount or amounts (including calculations thereof
in reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on the relevant Borrower. In determining such amount, such Lender or the
Issuing Bank may use any method of averaging and attribution that it (in its
sole and absolute discretion) shall deem applicable.
(c) Neither the Issuing Bank nor any Lender shall be entitled to
compensation under this Section 2.15 for any costs incurred or reductions
suffered with respect to any date that it has such costs unless it shall have
notified the Borrower that it will demand compensation for such costs or
reductions under paragraph (a) or (b) above, as applicable, not more than 120
days after the later of (i) such date and (ii) the date on which it shall have
become aware of such costs or reductions; provided that the foregoing shall in
--------
no way operate in derogation of the undertaking contained in the last sentence
of this paragraph (c). In the event that the Issuing Bank or any Lender
determines that any event or circumstance will lead to a claim under this
Section 2.15 has occurred or will occur, the Issuing Bank or such Lender will
use its best efforts to so notify the relevant Borrower; provided that any
--------
failure to provide such notice shall in no way impair the rights of the Issuing
Bank or such Lender to demand and receive compensation under this Section 2.15,
but without prejudice to any claims of the relevant Borrower for compensation
for actual damages sustained as a result of any failure to observe this
undertaking.
SECTION 2.16. Taxes. All payments by each Borrower of principal of, and
-----
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority on the
Applicable Agent, the Issuing Bank or any Lender (or any assignee of such Lender
or the Issuing Bank, as the case may be, or a participation holder or a change
in designation of the lending office of a Lender or the Issuing Bank, as the
case may be (a "Transferee")), but excluding franchise taxes and taxes imposed
----------
on or measured by the recipient's net income (such non-excluded items being
called "Taxes"). In the event that any withholding or deduction from any payment
-----
to be made by any Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then such Borrower will
(a) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Applicable Agent an official receipt or
other documentation satisfactory to the Applicable Agent evidencing such
payment to such authority; and
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(c) pay to the Applicable Agent for the account of the Lenders or the
Issuing Bank or Transferee, as the case may be, such additional amount or
amounts as are necessary to ensure that the net amount actually received by
each Lender or the Issuing Bank or Transferee, as the case may be, will
equal the full amount such Lender or the Issuing Bank or Transferee, as the
case may be, would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Applicable Agent, the
Issuing Bank or any Lender or Transferee with respect to any payment received by
the Applicable Agent, the Issuing Bank or such Lender or Transferee hereunder,
the Applicable Agent, the Issuing Bank or such Lender or Transferee may pay such
Taxes and the applicable Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as shall be necessary in order
that the net amount received by such Person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
Person would have received had such Taxes not been asserted. In addition, the
applicable Borrower shall also reimburse each Lender or Transferee or the
Issuing Bank, upon the written request of such Lender or Transferee or Issuing
Bank, for taxes imposed on or measured by the net income of such Person pursuant
to the laws of the United States of America, any state or political subdivision
thereof, or the jurisdiction in which such Person is incorporated, or a
jurisdiction in which the principal executive office or lending office of such
Person is located, or under the laws of any political subdivision or taxing
authority of any such jurisdiction, as such Person shall determine are or were
payable by such Person, in respect of amounts payable to such Person pursuant to
this Section 2.16 taking into account the amount of Taxes that are (x) allowed
as a deduction in determining taxes imposed on or measured by the net income or
allowed as a credit against any taxes imposed on or measured by net income (as
determined in the sole discretion of the Applicable Agent, the Issuing Bank or
any Lender or Transferee, as the case may be) and (y) payable to such Person
pursuant to this Section 2.16.
If a Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Applicable Agent, for the account of the
Issuing Bank, the respective Lenders or Transferees, the required receipts or
other required documentary evidence, such Borrower shall indemnify the Issuing
Bank, Lenders and Transferees for any incremental Taxes, interest, penalties or
other costs (including reasonable attorneys' fees and expenses) that may become
payable by the Issuing Bank, any Lender or Transferee as a result of any such
failure. For purposes of this Section 2.16, a distribution hereunder by the
Applicable Agent to or for the account of the Issuing Bank, any Lender or
Transferee shall be deemed a payment by a Borrower.
Each Lender or Transferee with respect to the U.S. Borrower that is
organized under the laws of a jurisdiction other than the United States shall,
on or prior to the Effective Date (in the case of each Lender that is a party
hereto on the Effective Date) or on or prior to the date of any assignment or
participation hereunder (in the case of a Transferee)
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and thereafter as reasonably requested from time to time by the applicable
Borrower or the Applicable Agent, execute and deliver, if legally able to do so,
to the applicable Borrower and the Applicable Agent one or more (as the
applicable Borrower or the Administrative Agent may reasonably request) United
States Internal Revenue Service Forms W-8BEN or such other forms or documents
(or successor forms or documents), appropriately completed, as may be applicable
to establish the extent, if any, to which a payment to such Lender or Transferee
is exempt from or entitled to a reduced rate of withholding or deduction of
Taxes.
With respect to obligations under this Agreement other than those specified
in the immediately following paragraph, the Borrowers shall not be required to
indemnify or to pay any additional amounts to the Issuing Bank, any Lender or
Transferee with respect to any Taxes pursuant to this Section 2.16 to the extent
that (i) any obligation to withhold, deduct or pay amounts with respect to such
Tax existed on the date the Issuing Bank, such Lender or Transferee became a
party to this Agreement (and, in such case, the Borrowers may deduct and
withhold such Tax from payments to the Issuing Bank, such Lender or Transferee),
or (ii) any Lender or Transferee fails to comply in full with the provisions of
the immediately preceding paragraph (and, in such case, the Borrowers may deduct
and withhold all Taxes required by law as a result of such noncompliance from
payments to the Issuing Bank, such Lender or Transferee).
With respect to Loans to the Euro Borrower or a Subsidiary Borrower, each
relevant Lender or Transferee shall determine the extent to which obligations to
withhold, deduct or pay amounts with respect to Taxes would exist on the
Effective Date or the date such Lender or Transferee becomes a party to this
Agreement in connection with the initial syndication of the Loans and shall
disclose to the Euro Borrower such determination on or after such date. Based on
such determination, the applicable Borrower shall indemnify or pay any such
additional amounts to each such Lender or Transferee pursuant to this Section
2.16.
Notwithstanding anything to the contrary in this Section 2.16, if the
Internal Revenue Service determines that a Lender (or Transferee) is a conduit
entity participating in a conduit financing arrangement as defined in Section
7701(l) of the Code and the regulations thereunder and the relevant Borrower was
not a participant to such arrangement (other than as a Borrower under this
Agreement) (a "Conduit Financing Arrangement"), then (i) such Borrower shall
-------------------------------
have no obligation to pay additional amounts or indemnify the Lender or
Transferee for any Taxes with respect to any payments hereunder to the extent
the amount of such Taxes exceeds the amount that would have otherwise been
withheld or deducted had the Internal Revenue Service not made such a
determination and (ii) such Lender or Transferee shall indemnify the applicable
Borrower in full for any and all taxes for which such Borrower is held directly
liable under Section 1461 of the Code by virtue of such Conduit Financing
Arrangement; provided that such Borrower (i) promptly forwards to the indemnitor
--------
an official receipt or other documentation satisfactorily evidencing such
payment, (ii) shall contest such tax upon the reasonable request of the
indemnitor and at such indemnitor's cost and (iii) shall pay to such indemnitor
within 30 days any refund of such taxes (including interest thereon). Each
Lender or Transferee represents that it is not participating in a Conduit
Financing Arrangement.
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Neither the Issuing Bank nor any Lender shall be entitled to payment under
this Section 2.16 unless it shall have notified the Borrowers that it is
demanding such payment not more than 120 days after the date on which it shall
have become aware that it was entitled to such payment; provided that the
--------
foregoing shall in no way operate in derogation of the undertaking contained in
the last sentence of this Section 2.16. In the event that the Issuing Bank or
any Lender determines that any event or circumstance that will lead to a claim
by it under this Section 2.16 has occurred or will occur, the Issuing Bank or
such Lender will use its best efforts to so notify the applicable Borrower;
provided that any failure to provide such notice shall in no way impair the
--------
rights of the Issuing Bank or any Lender to demand and receive compensation
under this Section 2.16, but without prejudice to any claims of the Borrowers
for failure to observe this undertaking.
SECTION 2.17. Indemnity. In the event any Lender (or other applicable
---------
Person mentioned in Section 2.16) shall incur any loss or expense (including any
loss (other than lost profit) or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a Eurocurrency
Loan) as a result of any conversion of a Eurocurrency Loan to an ABR Loan or
repayment or prepayment of the principal amount of any Eurocurrency Loan on a
date other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Section 2.03, 2.05, 2.07, 2.15 or 2.20 or
otherwise, or any failure to borrow or convert any Eurocurrency Loan after
notice thereof shall have been given hereunder, whether by reason of any failure
to satisfy a condition to such borrowing or otherwise, then, upon the written
notice of such Lender to the applicable Borrower (with a copy to the
Administrative Agent), such Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on such
Borrower.
SECTION 2.18. Change of Lending Office. Each Lender (or Transferee), or
------------------------
other applicable Person mentioned in Section 2.16, agrees that upon the
occurrence of any event giving rise to the operation of Section 2.14, 2.15 or
2.16 with respect to such Lender (or Transferee), it will, if requested by the
applicable Borrower, use commercially reasonable efforts (subject to overall
policy considerations of such Lender (or Transferee)) to designate another
lending office for any Loans affected by such event with the object of avoiding
the consequences of such event; provided that such designation is made on terms
--------
that, in the sole judgment of such Lender, cause such Lender and its respective
lending offices to suffer no material economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 2.18 shall
------------------
affect or postpone any of the obligations of any Borrower or the rights of any
Lender (or Transferee) pursuant to Sections 2.14, 2.15 and 2.16.
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SECTION 2.19. Sharing of Setoffs. Each Lender agrees that if it shall,
------------------
through the exercise of a right of banker's lien, setoff or counterclaim against
a Borrower, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Obligations or
participations in LC Disbursements which at the time shall be due and payable as
a result of which the unpaid principal portion of its Loans and participations
in LC Disbursements which at the time shall be due and payable shall be
proportionately less than the unpaid principal portion of such Loans and
participations in LC Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and shall
promptly pay to such other Lender the purchase price for, a participation in
such Loans and participations in LC Disbursements of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in LC
Disbursements held by each Lender shall be in the same proportion to the
aggregate unpaid principal amount of all such Loans and participations in LC
Disbursements as prior to such exercise of banker's lien, setoff or counterclaim
or other event; provided, however, that, if any such purchase or purchases or
------------------
adjustments shall be made pursuant to this Section and the payment giving rise
thereto shall thereafter be recovered, such purchase or purchases or adjustments
shall be rescinded to the extent of such recovery and the purchase price or
prices or adjustment restored without interest. Each Borrower expressly consents
to the foregoing arrangements and agrees that any Lender holding a participation
in a Loan or an LC Disbursement deemed to have been so purchased may exercise
any and all rights of banker's lien, setoff or counterclaim with respect to any
and all moneys owing by such Borrower to such Lender by reason thereof as fully
as if such Lender were a direct creditor directly to such Borrower in the amount
of such participation.
SECTION 2.20. Assignment of Commitments Under Certain Circumstances. In the
-----------------------------------------------------
event that any Lender (or other applicable Person mentioned in Section 2.16)
shall have delivered a notice or certificate pursuant to Section 2.12(b), 2.14
or 2.15, or any Borrower shall be required to make additional payments to any
Lender under Section 2.16 (an "Increased Cost Lender"), then, with respect to
----------------------
each such Increased Cost Lender, the Borrowers shall have the right, but not the
obligation, at their own expense, upon notice to such Increased Cost Lender and
the Administrative Agent, to replace such Increased Cost Lender with an assignee
(in accordance with and subject to the restrictions contained in Section 10.04)
approved by the Administrative Agent and the Issuing Bank (which approval shall
not be unreasonably withheld), and such Increased Cost Lender hereby agrees to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 10.04) all its interests, rights and
obligations under this Agreement to such assignee; provided, however, that no
------------------
Increased Cost Lender shall be obligated to make any such assignment unless
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(i) such assignment shall not conflict with any law or any rule, regulation or
order of any Governmental Authority and (ii) such assignee or the Borrowers
shall pay to the affected Increased Cost Lender in immediately available funds
on the date of such assignment the principal of and interest accrued to the date
of payment on the Loans made by such Increased Cost Lender and participations in
LC Disbursements held by such Increased Cost Lender hereunder and all other
amounts accrued for such Lender's account or owed to it hereunder (including,
without limitation, any Fees).
ARTICLE III
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent and the U.K.
Administrative Agent to enter into this Agreement and to extend credit hereunder
and under the other Loan Documents, each Loan Party, jointly and severally,
represents and warrants as follows:
SECTION 3.01. Organization, etc. Each Loan Party (a) is a corporation, and
------------------
each of its Subsidiaries is a corporation, partnership or other form of legal
entity, validly organized and existing and, to the extent applicable, in good
standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, (b) has all requisite corporate or other power
and authority to carry on its business as now conducted, (c) is duly qualified
to do business and, to the extent applicable, is in good standing as a foreign
corporation or foreign partnership (or comparable foreign qualification, if
applicable, in the case of any other form of legal entity), as the case may be,
in each jurisdiction where the nature of its business requires such
qualification, except where the failure to so qualify will not result in a
Material Adverse Effect, and (d) has full power and authority and holds all
requisite material governmental licenses, permits and other approvals to enter
into and perform its obligations under this Agreement and each other Loan
Document to which it is a party and to own or hold under lease its Property and
to conduct its business substantially as currently conducted by it.
SECTION 3.02. Due Authorization, Non-Contravention, etc. The execution,
--------------------------------------------
delivery and performance by each Loan Party of this Agreement and each other
Loan Document to which it is a party, the borrowing of the Loans, the use of the
proceeds thereof and the issuance of the Letters of Credit hereunder and the
Reorganization are within each Loan Party's corporate, partnership or comparable
powers, as the case may be, have been duly authorized by all necessary
corporate, partnership or comparable and, if required, stockholder action, as
the case may be, and do not:
(a) contravene the Organic Documents of any Loan Party or any of its
Subsidiaries (other than Immaterial Subsidiaries);
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(b) contravene any law or governmental regulation or court decree or
order binding on or affecting any Loan Party or any of its Subsidiaries
(other than Immaterial Subsidiaries);
(c) violate or result in a default under any indenture, agreement or
other instrument binding upon any Loan Party or any of its Subsidiaries
(other than Immaterial Subsidiaries); or
(d) result in, or require the creation or imposition of, any Lien on
any assets of any Loan Party any of its Subsidiaries (other than Immaterial
Subsidiaries), except Liens created under the Loan Documents.
Immaterial Subsidiaries as of the Effective Date are set forth on Schedule 3.02.
-------------
SECTION 3.03. Corporate Structure. The Structure Memorandum attached hereto
-------------------
as Exhibit U is a true and correct copy of the Structure Memorandum. The
----------
Reorganization will have been completed as of the Effective Date. The corporate
structure, capitalization and ownership of CCSC and its Subsidiaries, after
giving effect to the Reorganization, is substantially consistent with that set
forth in the Structure Memorandum.
SECTION 3.04. Government Approval, Regulation, etc. No consent,
------------------------------------------
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body or other Person is required for
the due execution, delivery or performance by any Loan Party of this Agreement
or any other Loan Document, the borrowing of the Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder, nor for the
consummation of the Transactions, except such as have been obtained or made and
are in full force and effect and except filings necessary to perfect Liens under
the Loan Documents. None of the Borrowers nor any of their respective
Subsidiaries is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or a "holding company", or a "subsidiary
company" of a "holding company", or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
SECTION 3.05. Validity, etc. This Agreement has been duly executed and
--------------
delivered by each Loan Party and constitutes, and each other Loan Document to
which any Loan Party is to be a party will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligation of each Loan Party
(as the case may be) enforceable in accordance with its respective terms,
subject to the effect of bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforceability of creditors' rights generally and to
general principles of equity.
SECTION 3.06. Financial Information. (a) The consolidated balance sheets of
---------------------
CCSC and its Subsidiaries as of December 31, 1997, 1998, 1999, 2000 and 2001,
reported on by PricewaterhouseCoopers LLP, independent public accountants,
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and as of September 30, 2002, certified by CCSC's chief financial officer, and
the related consolidated statements of earnings and cash flow of CCSC and its
Subsidiaries for the five years ended December 31, 2001, copies of which have
been furnished to the Administrative Agent and each Lender, have been prepared
in accordance with GAAP consistently applied, and present fairly in all material
respects the consolidated financial condition of CCSC and its Subsidiaries as of
the dates thereof and the results of their operations and cash flows for the
periods then ended (subject, in the case of the financial statements as of and
for the period ended September 30, 2002, to normal year-end adjustments and to
the absence of notes).
(b) Except as disclosed in the financial statements referred to above or
the notes thereto or in the Information Memorandum, none of CCSC nor its
Subsidiaries has, as of the Effective Date, any Indebtedness, contingent
liabilities, long-term commitments or unrealized losses which would be required
to be reported under GAAP.
SECTION 3.07. No Material Adverse Change. Since December 31, 2001, there
---------------------------
has been no material adverse change in the business, assets, operations,
properties, condition (financial or otherwise), contingent liabilities or
prospects of Crown Holdings and its Subsidiaries and investments taken as a
whole, except as disclosed in the Information Memorandum.
SECTION 3.08. Litigation. There is no pending or, to the knowledge of any
----------
of the Loan Parties, threatened litigation, action or proceeding affecting Crown
Holdings or any of its Subsidiaries, or any of their respective properties or
assets which could reasonably be expected to have a Material Adverse Effect or
which purports to affect the legality, validity or enforceability of this
Agreement or any other Loan Document or the transactions contemplated hereby or
thereby.
SECTION 3.09. Compliance with Laws and Agreements. Each of Crown Holdings
-----------------------------------
and its Subsidiaries is in compliance with all laws (other than Environmental
Laws, which are the subject of Section 3.14), regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so will not result in a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
SECTION 3.10. Subsidiaries. Schedule 3.10 sets forth the name of, and the
------------
direct or indirect ownership interest of each Loan Party in, each Subsidiary or
other investment of each Loan Party and identifies each such Subsidiary that is
a U.S. Loan Party and a Euro Loan Party, in each case as of the Effective Date
after giving effect to the Reorganization.
SECTION 3.11. Ownership of Properties. (a) Each of Crown Holdings and its
-----------------------
Subsidiaries has good and marketable title to, or valid leasehold interests in,
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or easements or other limited property interests in, or is licensed to use, all
its material properties and assets (including all Mortgaged Properties), except
for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for
their intended purposes and except where the failure to have such title in the
aggregate could not reasonably be expected to have a Material Adverse Effect.
All such material properties and assets are free and clear of Liens, other than
Permitted Liens.
(b) As of the Effective Date, Schedule 3.11(b) contains a true and complete
----------------
list of each parcel of Real Property (i) owned by any Loan Party as of the date
hereof and describes the type of interest therein held by such Loan Party and
(ii) leased, subleased or otherwise occupied or utilized by any Loan Party, as
lessee, as of the date hereof and describes the type of interest therein held by
such Loan Party and whether such lease, sublease or other instrument requires
the consent of the landlord thereunder or other parties thereto to the
Transactions.
(c) Each of Crown Holdings and its Subsidiaries has complied with all
obligations under all leases to which it is a party, except where the failure to
comply would not have a Material Adverse Effect, and all such leases are in full
force and effect, except leases in respect of which the failure to be in full
force and effect could not reasonably be expected to have a Material Adverse
Effect. Each of Crown Holdings and its Subsidiaries enjoys peaceful and
undisturbed possession under all such leases, other than leases which,
individually or in the aggregate, are not material to Crown Holdings and its
Subsidiaries taken as a whole, and in respect of which the failure to enjoy
peaceful and undisturbed possession could not reasonably be expected to,
individually or in the aggregate, result in a Material Adverse Effect.
(d) Each of Crown Holdings and its Subsidiaries owns or possesses, is
licensed or otherwise has the right to use, or could obtain ownership or
possession of, on terms not materially adverse to it, all patents, trademarks,
service marks, trade names, copyrights, licenses and rights with respect thereto
necessary for the present conduct of its business, without any known conflict
with the rights of others, except where such conflicts could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(e) As of the Effective Date, none of Crown Holdings nor its Subsidiaries
has received any written notice of, or has any knowledge of, any pending or
contemplated condemnation proceeding affecting any of the Mortgaged Properties
or any sale or disposition thereof in lieu of condemnation that remains
unresolved as of the Effective Date.
(f) None of Crown Holdings nor its Subsidiaries is obligated on the
Effective Date under any right of first refusal, option or other contractual
right to sell, assign or otherwise dispose of any Mortgaged Property or any
interest therein.
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(g) Schedule 3.11(g) sets forth each Subsidiary of CCSC that owns, operates
----------------
or leases any Principal Property as of the Effective Date.
SECTION 3.12. Taxes. Each of Crown Holdings and its Subsidiaries has timely
-----
filed all federal, foreign and all other material income tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges due, except (i) any such taxes or charges which are being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books and (ii)
any such taxes or charges that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; provided that any such
--------
contest of taxes or charges with respect to Collateral shall satisfy the
Contested Collateral Lien Conditions.
SECTION 3.13. Pension and Welfare Plans. No ERISA Event has occurred or is
-------------------------
reasonably expected to occur which could reasonably be expected to have a
Material Adverse Effect or give rise to a Lien. The Loan Parties and their ERISA
Affiliates are in compliance in all material respects with the presently
applicable provisions of ERISA and the Code with respect to each Plan. No
condition exists or event or transaction has occurred with respect to any
Pension Plan or Welfare Plan which reasonably might result in the incurrence by
any Loan Party or any ERISA Affiliate of any liability, fine or penalty which
could reasonably be expected to have a Material Adverse Effect. No Loan Party
has any contingent liability with respect to post-retirement benefits provided
by any Loan Party or its Subsidiaries under a Welfare Plan, other than (i)
liability for continuation coverage described in Part 6 of Subtitle B of Title I
of ERISA and (ii) liabilities that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
Except as could not reasonably be expected to have a Material Adverse
Effect, (a) each Non-U.S. Plan has been maintained in compliance with its terms
and with the requirements of any and all applicable laws, statutes, rules,
regulations and orders and has been maintained, where required, in good standing
with applicable regulatory authorities and (b) no Loan Party nor any Subsidiary
has incurred any obligation in connection with the termination of or withdrawal
from any Non-U.S. Plan.
SECTION 3.14. Environmental Warranties. (a) All facilities and property
-------------------------
owned, leased or operated by Crown Holdings or any of its Subsidiaries, and all
operations conducted thereon, are in compliance with all Environmental Laws,
except for such noncompliance that, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
(b) There are no pending or threatened (in writing):
(i) Environmental Claims received by Crown Holdings or any of its
Subsidiaries or
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(ii) written claims, complaints, notices or inquiries received by
Crown Holdings or any of its Subsidiaries regarding Environmental Liability
in each case which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(c) There have been no Releases of Hazardous Materials at, on, under or
from any property now or, to any Loan Party's knowledge, previously owned or
leased or operated by Crown Holdings or any of its Subsidiaries that,
individually or in the aggregate, have had or could reasonably be expected to
have a Material Adverse Effect.
(d) Crown Holdings and its Subsidiaries have been issued and are in
compliance with all Environmental Permits necessary for their operations,
facilities and businesses and each is in full force and effect, except for such
Environmental Permits which, if not so obtained or as to which Crown Holdings
and its Subsidiaries are not in compliance, or are not in effect, individually
or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(e) No property now or, to any Loan Party's knowledge, previously owned,
leased or operated by Crown Holdings or any of its Subsidiaries is listed or
proposed (with respect to owned property only) for listing on the CERCLIS or on
any similar state list of sites requiring investigation or clean-up, or on the
National Priorities List pursuant to CERCLA, in each case other than properties
as to which any such listing could not reasonably be expected to have a Material
Adverse Effect.
(f) There are no underground storage tanks, active or abandoned, including
petroleum storage tanks, surface impoundments or disposal areas, on or under any
property now or, to any Loan Party's knowledge, previously owned or leased by
Crown Holdings or any of its Subsidiaries which, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
(g) Neither Crown Holdings nor any Subsidiary has transported or arranged
for the transportation of any Hazardous Material to any location which is listed
or proposed for listing on the National Priorities List pursuant to CERCLA, on
the CERCLIS or on any similar state list or which is the subject of federal,
state or local enforcement actions or other investigations which would
reasonably be expected to lead to any Environmental Claim against Crown Holdings
or such Subsidiary which could reasonably be expected to have a Material Adverse
Effect.
(h) There are no past or present actions, activities, conditions or
occurrences that could reasonably be expected to prevent Crown Holdings or any
of its Subsidiaries from complying with, or to result in liability under, any
Environmental Law, in each case which could reasonably be expected to have a
Material Adverse Effect.
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(i) No liens have been recorded pursuant to any Environmental Law with
respect to any property or other assets owned or leased by Crown Holdings or any
of its Subsidiaries which could reasonably be expected to have a Material
Adverse Effect.
(j) Neither Crown Holdings nor any of its Subsidiaries is currently
conducting any Remedial Action pursuant to any Environmental Law which could
reasonably be expected to have a Material Adverse Effect, nor has Crown Holdings
or any of its Subsidiaries assumed by contract, agreement or operation of law
any obligation under Environmental Law which could reasonably be expected to
have a Material Adverse Effect.
(k) There are no polychlorinated biphenyls or friable asbestos present at
any property owned, leased or operated by Crown Holdings or any Subsidiary
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
SECTION 3.15. Regulations U and X. The Loans, the use of the proceeds
--------------------
thereof, this Agreement and the transactions contemplated hereby will not result
in a violation of or be inconsistent with any provision of Regulation U or X.
SECTION 3.16. Disclosure; Accuracy of Information; Pro Forma Balance Sheets
-------------------------------------------------------------
and Projections. (a) Each Loan Party has disclosed to the Lenders all
----------------
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to any of them that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. Neither this Agreement nor any other document,
certificate or statement furnished to the Administrative Agent or any Lender or
S&P or Xxxxx'x in connection with the Transactions or any firm providing
solvency opinions as required hereunder by or on behalf of any Loan Party
(including, without limitation, the Information Memorandum) contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein and therein not misleading, in
light of the circumstances under which they were made; provided that to the
extent this or any such document, certificate or statement (including without
limitation the Information Memorandum) was based upon or constitutes a forecast
or projection, the Loan Parties represent only that they acted in good faith and
utilized reasonable assumptions and due care in the preparation of such
document, certificate or statement.
(b) On or prior to February 24, 2003, Crown Holdings shall have furnished
to the Lenders the pro forma consolidated balance sheet as of December 31, 2002,
prepared giving effect to the Transactions as if the Transactions had occurred
on such date. Such pro forma consolidated balance sheet (i) was prepared in good
faith based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum, (ii) accurately reflects all
adjustments necessary to give effect to the Transactions and (iii) presents
fairly the pro forma financial position of Crown Holdings and its consolidated
Subsidiaries as of the Effective Date, as if the Transactions had occurred on
such date.
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(c) On or prior to February 24, 2003, Crown Holdings shall have furnished
to the Lenders pro forma consolidating income statement projections (with line
---------
items down to operating income) for Crown Holdings and its Subsidiaries and pro
---
forma consolidating cash flow projections (showing only free cash flow) for
-----
Crown Holdings and its Subsidiaries (in each case, breaking out results for the
Americas, Europe, Asia and other), all for the fiscal years ending 2003 through
2008, inclusive (the "Projected Financial Statements"), which give effect to the
------------------------------
Transactions and all Indebtedness and Liens incurred or created in connection
with the Transactions. The assumptions made in preparing the Projected Financial
Statements are reasonable as of the date of such projections and as of the
Effective Date and all material assumptions with respect to the Projected
Financial Statements are set forth therein. The Projected Financial Statements
present a good faith estimate of the consolidated financial information
contained therein at the date thereof, it being recognized by the Administrative
Agent and the Lenders, however, that projections as to future events are not to
be viewed as facts and that the actual results during the period or periods
covered by the projections probably will differ from the projected results and
that the difference may be material.
(d) At the Effective Date, all conditions to the obtaining of the published
ratings of S&P and Xxxxx'x (including as to guarantees and collateral) have been
satisfied in all material respects.
SECTION 3.17. Insurance. As of the Effective Date, set forth on Schedule
--------- --------
3.17 is a summary of all insurance policies maintained by Crown Holdings and
----
each of its Subsidiaries with financially sound and responsible insurance
companies (a) with respect to its properties material to the business of Crown
Holdings and its Subsidiaries against such casualties and contingencies and of
such types and in such amounts as are customary in the case of similar
businesses operating in the same or similar locations and (b) required to be
maintained pursuant to the Security Documents.
SECTION 3.18. Labor Matters. Except as could not reasonably be expected to
-------------
have a Material Adverse Effect, (a) as of the Effective Date, there are no
strikes, lockouts or slowdowns against Crown Holdings or any Subsidiary pending
or, to the knowledge of any Loan Party, threatened; (b) the hours worked by and
payments made to employees of Crown Holdings and its Subsidiaries have not been
in violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters; and (c) all payments due
from Crown Holdings or any Subsidiary, or for which any claim may be made
against Crown Holdings or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of Crown Holdings or such Subsidiary.
SECTION 3.19. Solvency. Immediately following the making of each Loan and
--------
after giving effect to the application of the proceeds of such Loans, (I) (a)
the fair value of the assets of each Loan Party, at a fair valuation, will
exceed its debts and liabilities, subordinated, contingent or otherwise;
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(b) the present fair saleable value of the property of each Loan Party will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (d)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Effective Date and (II) (i) no Loan Party
will be subject to any proceedings for its administration (with respect to a
Loan Party organized under the laws of France, redressement judiciaire), or is
or will be subject to a plan for the transfer of the whole or part of its
business, or is or will be subject to liquidation (with respect to a Loan Party
organized under the laws of France, liquidation judiciaire) and no claim has
been made requesting implementation of such proceedings; (ii) no Loan Party is
or will be subject to the administration of a court appointed mediator
(conciliateur), judicial condition, compulsory manager, receiver (administrateur
judiciaire), administrator, liquidator (liquidateur judiciaire) or other similar
office (with respect to a Loan Party organized under the laws of France,
mandataire ad hoc), and no request has been filed and no negotiations are
envisaged for the rehabilitation, administration, custodianship, liquidation,
winding-up or dissolution of such Loan Party; (iii) no Loan Party is or will be
unable to settle its debts (contingent or otherwise) with realizable assets
(with respect to a Loan Party organized under the laws of France, en etat de
cessation des paiements) within the meaning of article L 621-2 of the French
Commercial Code or admits in writing its inability to pay its debts as they fall
due; (iv) no Loan Party organized under the laws of France is or will be subject
to amicable arrangement proceedings (procedure de reglement amiable), within the
meaning of Article L. 611-3 of the French Commercial Code; and (v) no Loan Party
has or will commence negotiations with any of its creditors with a view to the
general readjustment or rescheduling of any of its indebtedness or has made a
general assignment for the benefit of any of its creditors and/or has entered
into any settlement agreement or amicable arrangement with any of its creditors
(with respect to a Loan Party organized under the laws of France, transactions,
accord ou reglement amiable), or stops or suspends payment of all or
substantially all of its debts or announces an intention to do so, or a
moratorium is declared in respect of any of its indebtedness.
SECTION 3.20. Securities. The Equity Interests of each Loan Party's
----------
Subsidiaries have been duly authorized, issued and delivered and are fully paid,
nonassessable and free of preemptive rights that have not been waived. The
Equity Interests of each Subsidiary of a Loan Party are owned, directly or
indirectly, by a Loan Party, free and clear of all Liens other than those
created pursuant to the Security Documents. There are not, as of the Effective
Date, any existing options, warrants, calls, subscriptions, convertible or
exchangeable securities, rights, agreements, commitments or arrangements for any
Person to acquire any Equity Interests of any Subsidiary of Crown Holdings or
any other securities convertible into, exchangeable for or evidencing the right
to subscribe for any such Equity Interests, except as disclosed in the financial
statements delivered pursuant to Section 3.06 or otherwise disclosed to the
Lenders prior to the Effective Date.
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SECTION 3.21. Indebtedness Outstanding. Set forth on:
----------------------------
(a) Schedule 3.21(a) hereto is a list and description of (i) all
-----------------
Indebtedness of the Loan Parties and their respective Subsidiaries (other
than the Loans) that will be outstanding immediately after the Effective
Date and (ii) all Indebtedness of the Loan Parties and their respective
Subsidiaries that will be repaid, defeased, transferred or otherwise
terminated on or prior to the Effective Date;
(b) Schedule 3.21(b) hereto is a list and description of the Existing
-----------------
Non-U.S. Facilities and the obligations of any subsidiary of Crown Holdings
that Guarantees, is an obligor under or provides credit support in respect
of such Existing Non-U.S. Facilities; and
(c) Schedule 3.21(c) hereto is a list and description of the Existing
-----------------
Factoring Facilities and the obligations of any subsidiary of Crown
Holdings that Guarantees, is an obligor under or provides credit support in
respect of such Existing Factoring Facilities.
SECTION 3.22. Security Documents. (a) The U.S. Bank Pledge Agreement is
-------------------
effective to create in favor of the U.S. Collateral Agent, for its benefit and
the benefit of the Secured Parties named therein, a legal, valid and enforceable
security interest in the Collateral (as defined in the U.S. Bank Pledge
Agreement) having the priority set forth therein and, when such Collateral is
delivered to the U.S. Collateral Agent, the U.S. Bank Pledge Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the pledgor thereunder in such Collateral.
(b) The U.S. Shared Pledge Agreement is effective to create in favor of the
U.S. Collateral Agent, for its benefit and the benefit of the Secured Parties
named therein, a legal, valid and enforceable security interest in the
Collateral (as defined in the U.S. Shared Pledge Agreement) having the priority
set forth therein and, when such Collateral is delivered to the U.S. Collateral
Agent, the U.S. Shared Pledge Agreement shall constitute a fully perfected Lien
on, and security interest in, all right, title and interest of the pledgor
thereunder in such Collateral.
(c) (i) The U.S. Security Agreement is effective to create in favor of the
U.S. Collateral Agent, for its benefit and the ratable benefit of the Secured
Parties named therein, a legal, valid and enforceable security interest in the
Collateral (as defined in the U.S. Security Agreement) having the priority set
forth therein and (ii) when (x) financing statements in appropriate form are
filed in the offices specified on Schedule 6 to the Perfection Certificate and
----------
(y) upon the taking of possession or control by the U.S. Collateral Agent
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of any such Collateral in which a security interest may be perfected only by
possession or control (which possession or control shall be given to the U.S.
Collateral Agent to the extent possession or control by the U.S. Collateral
Agent is required by any Security Document), the U.S. Security Agreement shall
constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the grantors thereunder in such Collateral (other than the
Intellectual Property), to the extent such Lien and security interest can be
perfected by the filing of a financing statement pursuant to the UCC or by
possession or control by the U.S. Collateral Agent, in each case prior and
superior in right to any other Person, other than with respect to Permitted
Liens.
(d) When the filings in clause (b)(ii)(A) above are made and when the U.S.
Security Agreement (or a summary thereof) is filed in the United States Patent
and Trademark Office and the United States Copyright Office, the U.S. Security
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in the Intellectual Property
in which a security interest may be perfected by filing, recording or
registering a security agreement, financing statement or analogous document in
the United States Patent and Trademark Office or the United States Copyright
Office, as applicable (it being understood that subsequent recordings in the
United States Patent and Trademark Office and the United States Copyright Office
may be necessary to perfect a Lien on registered trademarks, trademark
applications and copyrights acquired by the Loan Parties after the Effective
Date), in each case prior and superior in right to any other Person other than
with respect to Permitted Liens.
(e) Each Mortgage executed and delivered as of the Effective Date is, or to
the extent any Mortgage is duly executed and delivered thereafter by the
relevant Loan Party, will be effective to create, subject to the exceptions
listed in each title insurance policy covering such Mortgage, in favor of the
U.S. Collateral Agent, for its benefit and the ratable benefit of the Secured
Parties named therein, a legal, valid and enforceable Lien on and security
interest in all of the Loan Parties' right, title and interest in and to the
Mortgaged Properties thereunder and the proceeds thereof and having the priority
set forth therein, and when the Mortgages are filed in the offices specified on
Schedule 3.22(e), the Mortgages shall constitute a Lien on, and security
-----------------
interest in, all right, title and interest of the Loan Parties in such Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right to
any other Person, other than with respect to the rights of Persons pursuant to
Permitted Liens.
(f) Each Euro Security Document is effective to create in favor of the Euro
Collateral Agent, for the ratable benefit of the Secured Parties named therein,
a legal, valid and enforceable security interest in the Collateral (as defined
in such Euro Security Document) having the priority set forth therein and, when
the actions specified in Schedule 3.22(f) are taken, each Euro Security Document
----------------
shall constitute a fully perfected Lien on, and security interest in, all right,
title and interest of the grantors thereunder in such Collateral, in each case
prior and superior in right to any other Person, other than with respect to
Permitted Liens.
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(g) Each Intercompany Collateral Document is effective to create in favor
of the applicable Collateral Agent, for the benefit of Euro Borrower, a legal,
valid and enforceable security interest in the collateral (as defined in such
Intercompany Collateral Document) and, when the actions specified in Schedule
3.22(g) are taken, each Intercompany Collateral Document shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the grantor thereunder in such Collateral, in each case prior and superior in
right to any other Person, other than with respect to Permitted Liens.
(h) The U.S. Retained Collateral Account Agreement, when executed and
delivered, will be effective to create in favor of the U.S. Collateral Agent,
for its benefit and the benefit of the Secured Parties named therein, a legal,
valid and enforceable security interest in the Collateral (as defined in the
U.S. Retained Collateral Account Agreement) having the priority set forth
therein and, when such Collateral is delivered to the U.S. Collateral Agent, the
U.S. Retained Collateral Account Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the pledgor
thereunder in such Collateral.
SECTION 3.23. Anti-Terrorism Laws. (a) None of the Loan Parties or, to the
-------------------
knowledge of any of the Loan Parties, any of their Affiliates, is in violation
of any laws relating to terrorism or money laundering ("Anti-Terrorism Laws"),
--------------------
including Executive Order No. 13224 on Terrorist Financing, effective September
24, 2001 (the "Executive Order"), and the Uniting and Strengthening America by
---------------
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Public Law 107-56.
(b) No Loan Party or, to the knowledge of any of the Loan Parties, any of
their Affiliates, or their respective brokers or other agents acting or
benefiting in any capacity in connection with the Loans, is any of the
following:
(i) a Person or entity that is listed in the annex to, or is otherwise
subject to the provisions of, the Executive Order;
(ii) a Person or entity owned or controlled by, or acting for or on
behalf of, any Person or entity that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;
(iii) a Person or entity with which any Lender is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or conspires to commit
or supports "terrorism" as defined in the Executive Order; or
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(v) a Person or entity that is named as a "specially designated
national and blocked person" on the most current list published by the U.S.
Treasury Department Office of Foreign Asset Control at its official website
or any replacement website or other replacement official publication of
such list.
(c) No Loan Party or to the knowledge of any Loan Party, any of its brokers
or other agents acting in any capacity in connection with the Loans (i) conducts
any business or engages in making or receiving any contribution of funds, goods
or services to or for the benefit of any Person described in clause (b) above,
(ii) deals in, or otherwise engages in any transaction relating to, any property
or interests in property blocked pursuant to the Executive Order, or (iii)
engages in or conspires to engage in any transaction that evades or avoids, or
has the purpose of evading or avoiding, or attempts to violate, any of the
prohibitions set forth in any Anti-Terrorism Law.
SECTION 3.24. Board of Euro Borrower. As of the Effective Date, the board
----------------------
of directors (or equivalent body) of the Euro Borrower consists of at least a
majority of Persons that are executive officers of Crown Holdings. All actions
may be taken by such board of directors (or equivalent body) by a majority vote.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans
--------------
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.09) and subject to satisfaction of the
conditions set forth in Section 4.02:
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself
and the Lenders, favorable written opinions of each of (i) Dechert, counsel
for the Loan Parties, substantially in the form of Exhibit L, and (ii) U.S.
---------
and non-U.S. local counsel for the Loan Parties, as specified on Schedule
--------
4.01(b), substantially in the form of Exhibit X-0, -0, xx -0, in each case,
------- ----------- -- --
(A) dated the Effective Date and (B) addressed to the Administrative Agent
and the Syndication Agent and the Lenders.
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(c) All documents executed or submitted in connection with this
Agreement, the borrowings hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders.
(d) The Administrative Agent shall have received such documents and
Officer's Certificates substantially in the form of Exhibit G-3 as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the
authorization of the Transactions and any other legal matters relating to
the Loan Parties, the Loan Documents or the Transactions, all in form and
substance satisfactory to the Administrative Agent and its counsel.
(e) The Administrative Agent shall have received an Officer's
Certificate, dated the Effective Date and signed by a Financial Officer of
each of the Borrowers, confirming compliance with the conditions precedent
set forth in paragraphs (b) and (c) of Section 4.02, substantially in the
form of Exhibit G-1 or G-2, as applicable.
(f) The Administrative Agent shall have received all fees payable to
the Administrative Agent and the Syndication Agent or any Lender on or
prior to the Effective Date and, to the extent invoiced, all other amounts
due and payable pursuant to the Loan Documents on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all
reasonable out-of-pocket expenses (including reasonable fees, charges and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx and U.S. and non-U.S. local
counsel) required to be reimbursed or paid by the Loan Parties hereunder or
under any other Loan Document.
(g) The U.S. Collateral Agent shall have received a counterpart of
each of the U.S. Shared Pledge Agreement and the U.S. Bank Pledge Agreement
signed on behalf of each U.S. Loan Party, and covering pledges of 100% of
the Equity Interests of the U.S. Subsidiaries held, directly or indirectly,
by any of the U.S. Subsidiaries of Crown Holdings and 65% of the Equity
Interests of the "first tier" Non-U.S. Subsidiaries of the U.S. Borrower
and Crown International, together with promissory notes (to the extent such
notes exist on the Effective Date) evidencing all intercompany Indebtedness
owed to any Loan Party by Crown Holdings or any Subsidiary as of the
Effective Date and stock powers and instruments of transfer, endorsed in
blank, with respect to the Equity Interests of Crown Holdings' U.S.
Subsidiaries and any such promissory notes.
(h) The U.S. Collateral Agent shall have received a counterpart of the
(w) U.S. Retained Collateral Account Agreement signed by the U.S. Borrower,
(x) U.S. Shared Pledge Agreement signed by each of the U.S. Loan Parties,
(y) U.S. Bank Pledge Agreement signed by each of the U.S. Loan Parties, and
(z) U.S. Security Agreement signed on behalf of each U.S. Loan Party
together with the following:
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(A) certificates representing all certificated Pledged Securities
(as defined in the U.S. Bank Pledge Agreement and the U.S. Shared
Pledge Agreement), together with executed and undated stock powers
and/or assignments in blank;
(B) instruments representing all intercompany Indebtedness
payable to any Loan Party, together with executed and undated
instruments of assignment endorsed in blank;
(C) certificates of insurance required under the U.S. Security
Agreement;
(D) appropriate financing statements or comparable documents of,
and executed by, the appropriate entities in proper form for filing
under the provisions of the UCC and applicable domestic or local laws,
rules or regulations in each of the offices where such filing is
necessary or appropriate, in the U.S. Collateral Agent's sole
discretion, to grant to the U.S. Collateral Agent a perfected Lien on
such U.S. Collateral having the priority set forth in the applicable
U.S. Security Document, superior and prior to the rights of all third
persons other than the holders of Permitted Liens;
(E) UCC, judgment and tax lien, bankruptcy and pending lawsuit
search reports listing all effective financing statements or
comparable documents which name any applicable Loan Party as debtor
and which are filed in those jurisdictions in which any of such U.S.
Collateral is located and the jurisdictions in which any applicable
Loan Party's principal place of business is located in the United
States, together with copies of such existing financing statements,
none of which shall encumber such U.S. Collateral covered or intended
or purported to be covered by the U.S. Security Agreement other than
Permitted Liens;
(F) evidence of the preparation for recording or filing, as
applicable, of all recordings and filings of the U.S. Security
Agreement, including, without limitation, with the United States
Patent and Trademark Office and the United States Copyright Office,
and delivery and recordation, if necessary, of such other security and
other documents, including, without limitation, UCC-3 termination
statements with respect to UCC filings that do not constitute
Permitted Liens, as may be necessary or, in the opinion of the U.S.
Collateral Agent, desirable to perfect the Liens created, or purported
or intended to be created, by the U.S. Security Agreement;
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(G) evidence that all other actions reasonably necessary or, in
the opinion of the U.S. Collateral Agent, desirable to perfect the
security interest created by the U.S. Security Agreement have been
taken;
(H) a completed Perfection Certificate dated the Effective Date
and signed by an executive officer or Financial Officer of the U.S.
Borrower, Crown Holdings and all of the U.S. Subsidiaries of Crown
Holdings, together with all attachments contemplated thereby,
including the results of a search of the UCC (or equivalent) filings
made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents)
are Permitted Liens or have been released.
(i) The U.S. Collateral Agent shall have received the following
documents and instruments:
(A) Mortgages encumbering each Mortgaged Property in which the
applicable U.S. Loan Party holds an ownership interest (as indicated
on Schedule 4.01(i)(A) hereto) in favor of the U.S. Collateral Agent,
--------------------
for its benefit and the benefit of the applicable Lenders, duly
executed and acknowledged by the applicable Loan Party, and otherwise
in form for recording in the recording office where each such
Mortgaged Property is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof to create a lien under
applicable law, and such UCC-1 financing statements and other similar
statements as are contemplated by the counsel opinions described in
Section 4.01(b)(ii) in respect of such Mortgage, all of which shall be
in form and substance reasonably satisfactory to the U.S. Collateral
Agent, and any other instruments necessary to grant a mortgage lien
under the laws of any applicable jurisdiction, which Mortgage and
financing statements and other instruments shall when recorded be
effective to create a Lien on such Mortgaged Property subject to no
other Liens except Permitted Liens;
(B) with respect to each Mortgaged Property, such consents,
approvals, amendments, supplements, estoppels, tenant subordination
agreements or other instruments, in form acceptable to the U.S.
Collateral Agent, as necessary or required to consummate the
transactions contemplated hereby or as shall reasonably be deemed
necessary by the U.S. Collateral Agent in order for the owner or
holder of the fee or leasehold interest constituting such Mortgaged
Property to grant the Lien contemplated by the Mortgage with respect
to such Mortgaged Property;
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(C) with respect to each Mortgage, a policy (or commitment to
issue a policy) of title insurance insuring (or committing to insure)
the Lien of such Mortgage as a valid first mortgage Lien on the real
property and fixtures described therein in an amount not less than the
amount set forth on Schedule 4.01(i)(C), which policies (or
---------------------
commitments) shall (w) be issued by the Title Company, (x) include
such reinsurance arrangements (with provisions for direct access) as
shall be reasonably acceptable to the U.S. Collateral Agent, (y)
contain a "tie-in" or "cluster" endorsement (if available under
applicable law) (i.e., policies which insure against losses regardless
----
of location or allocated value of the insured property up to a stated
maximum coverage amount) and have been supplemented by such
endorsements (or where such endorsements are not available, opinions
of special counsel, architects or other professionals reasonably
acceptable to the U.S. Collateral Agent to the extent that such
opinions can be obtained at a cost which is reasonable with respect to
the value of the real property subject to such Mortgage) as shall be
reasonably requested by the U.S. Collateral Agent (including, without
limitation, endorsements, to the extent available in each jurisdiction
at commercially reasonably rates, on matters relating to usury, first
loss, last dollar, zoning, contiguity, variable rate, revolving
credit, doing business, access, survey, address and so-called
comprehensive coverage over covenants and restrictions) and (z)
contain only such exceptions to title as shall be agreed to by the
U.S. Collateral Agent on or prior to the Effective Date with respect
to such Mortgaged Property;
(D) with respect to each Mortgaged Property, policies or
certificates of insurance as required by the Mortgage relating
thereto, which policies or certificates shall comply with the
insurance requirements contained in such Mortgage;
(E) with respect to each Mortgaged Property, a Survey in form
acceptable to the U.S. Collateral Agent;
(F) with respect to each Mortgaged Property, such affidavits,
certificates, information (including financial data) and instruments
of indemnification (including, without limitation, a so-called "gap"
indemnification) as shall be required to induce the Title Company to
issue the policy or policies (or commitment) and endorsements
contemplated in subparagraph (C) above;
(G) evidence acceptable to the U.S. Collateral Agent of payment
by the appropriate Loan Party or Subsidiary thereof of all applicable
title insurance premiums, search and examination charges, survey costs
and related charges, mortgage recording taxes, fees, charges, costs
and expenses required for the recording of the Mortgages and issuance
of the title insurance policies referred to in subparagraph (C) above;
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(H) with respect to each Real Property or Mortgaged Property,
copies of all leases or other agreements relating to possessory
interests to which any Loan Party or Subsidiary thereof is a party. To
the extent any of the foregoing in which any Loan Party is a landlord
or sublandlord affect any Mortgaged Property, such agreement shall be
subordinate to the Mortgage to be recorded against such Mortgaged
Property and otherwise acceptable to the U.S. Collateral Agent; and
(I) with respect to each Mortgaged Property, a Real Property
Officers' Certificate substantially in the form of Exhibit N attached
---------
hereto or other evidence satisfactory to the U.S. Collateral Agent
that as of the date thereof there (x) has been issued and is in effect
a valid and proper certificate of occupancy or other local equivalent,
if any, for the use then being made of such Mortgaged Property and
that the Loan Parties have not received written notices of any
outstanding citation, violation or similar notice indicating that such
Mortgaged Property contains conditions which are not in compliance
with local codes or ordinances relating to building or fire safety or
structural soundness, (y) has not occurred any Taking or Destruction
of any Mortgaged Property or Real Property and (z) to the best
knowledge of the Loan Parties, are no disputes regarding boundary
lines, location, encroachment or possession of any Real Property or
Mortgaged Property and no state of facts existing which could give
rise to any such claim.
(j) The Euro Collateral Agent shall have received counterparts of each
Euro Security Document signed on behalf of each Euro Loan Party thereto, in
each case, together with the following:
(A) if required by such Euro Security Document, certificates
representing all certificated Pledged Securities, together with
executed and undated stock powers and/or assignments in blank;
(B) [Reserved];
(C) if required by such Euro Security Document, certificates of
insurance;
(D) if required by such Euro Security Document, appropriate
financing statements or comparable documents of, and executed by, the
appropriate entities in proper form for filing under the provisions of
the applicable or local laws, rules or regulations in each of the
offices where such filing is necessary or appropriate to grant to the
Euro Collateral Agent a perfected first priority Lien on such
Collateral, superior and prior to the rights of all third persons
other than the holders of Permitted Liens;
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(E) if required by such Euro Security Document, judgment and tax
lien, bankruptcy and pending lawsuit search reports listing all
effective financing statements or comparable documents which name any
applicable Loan Party as debtor and which are filed in those
jurisdictions in which any of such Collateral is located and the
jurisdictions in which any applicable Loan Party's principal place of
business is located, together with copies of such existing financing
statements, none of which shall encumber such Collateral covered or
intended or purported to be covered by such Euro Security Document
other than Permitted Liens;
(F) if required by such Euro Security Document, other than as
listed on Schedule 4.01(j), evidence of the completion of all
notarizations, recordings and filings of each such Euro Security
Document, and delivery and recordation, if necessary, of such other
security and other documents, as may be necessary or desirable to
perfect the Liens created, or purported or intended to be created, by
such Euro Security Document; and
(G) evidence that all other actions reasonably necessary or
desirable to perfect the security interest created by the Euro
Security Documents have been taken.
(k) All (A) Intercompany Notes set forth on Schedule 4.01(k), duly
-----------------
executed by the respective Intercompany Borrower and collaterally assigned
in favor of the Euro Collateral Agent and (B) French Intercompany Loan
Agreements set forth on Schedule 4.01(k) duly executed by the French
Intercompany Borrowers and collaterally assigned in favor of the Euro
Collateral Agent.
(l) All Intercompany Collateral Documents set forth on Schedule
--------
4.01(l), duly executed and delivered by each respective Loan Party, and
-------
collaterally assigned in favor of the Euro Collateral Agent.
(m) The Administrative Agent shall have received (i) counterparts of
the U.S. Guarantee Agreement signed on behalf of each U.S. Subsidiary of
Crown Holdings and (ii) counterparts of the Indemnity, Subrogation and
Contribution Agreement signed on behalf of each U.S. Subsidiary of Crown
Holdings.
(n) The Administrative Agent shall have received counterparts of a (i)
Non-U.S. Guarantee Agreement signed on behalf of each Subsidiary of the
Euro Loan Party designated on Schedule 3.10 and (ii) the Crown
---------------
Developpement SNC Parent Guarantee.
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(o) The Administrative Agent shall have received counterparts of each
of the Intercreditor Agreements, the Sharing Agreement and the Receivables
Intercreditor Agreement, each signed on behalf of each of the parties
thereto.
(p) The Administrative Agent shall have received evidence that the
insurance required by Section 5.04 and the Security Documents is in effect.
(q) The Euro Borrower shall have received aggregate gross proceeds of
at least $1.085 billion from the issuance of the Second Lien Dollar Notes
and (euro)285 million from the issuance of the Second Lien Euro Notes,
which gross proceeds shall be either (x) immediately used to repay the
Existing Credit Facility and Refinanced Public Debt or (y) deposited into
the Dollar Collateral Account or Euro Collateral Account, as applicable;
the terms, conditions and documentation of the Second Lien Notes shall be
consistent in all material respects with the description thereof in the
Offering Memorandum dated February 11, 2003.
(r) The Euro Borrower shall have received aggregate gross proceeds of
at least $725 million from the issuance of the Third Lien Notes, which
gross proceeds shall be either (x) immediately used to repay the Existing
Credit Facility and Refinanced Public Debt or (y) deposited into the Dollar
Collateral Account; the terms, conditions and documentation of the Third
Lien Notes shall be consistent in all material respects with the
description thereof in the Offering Memorandum dated February 11, 2003.
(s) [Reserved].
(t) The Reorganization shall have been consummated in a manner
consistent with the description thereof in the Structure Memorandum.
(u) On or prior to February 24, 2003, the Lenders shall have received
(a) audited consolidated (for the Fiscal Year ended December 31, 2001 and
unaudited consolidated for the Fiscal Year ended December 31, 2002) and
unaudited consolidating (breaking out results for the Americas, Europe,
Asia and other) and statements of income (with line items down to operating
income), stockholders' equity and cash flows (showing only free cash flow)
of CCSC for the two Fiscal Years ended before the Effective Date and (b) to
the extent available, unaudited consolidated and consolidating (breaking
out results for the Americas, Europe, Asia and other) and statements of
income (with line items down to operating income), stockholders' equity and
cash flows (showing only free cash flow) of CCSC for each completed fiscal
quarter since December 31, 2001, which audited and unaudited financial
statements shall (i) be in form and scope satisfactory to the Lenders and
(ii) not be materially inconsistent with the financial statements
previously provided to the Lenders.
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(v) On or prior to February 24, 2003, the Lenders shall have received
a pro forma consolidated balance sheet of Crown Holdings as of December 31,
---------
2002, after giving effect to the Transactions, together with a certificate
of the chief financial officer of Crown Holdings substantially in the form
of Exhibit G-4 to the effect that such balance sheet fairly presents the
-----------
pro forma assets and liabilities of Crown Holdings and its Subsidiaries in
---------
accordance with GAAP, and the Lenders shall be satisfied that such balance
sheet is not materially inconsistent with the forecasts previously provided
to the Lenders.
(w) The Lenders shall have received a certificate substantially in the
form of Exhibit G-4 from the chief financial officer of Crown Holdings
------------
certifying that the adjusted Consolidated EBITDA of Crown Holdings and its
Subsidiaries (defined as pretax income plus depreciation, plus interest
expense, plus gain or loss on asset sales, plus asbestos charges, plus
restructuring charges, plus asset impairment charges plus, to the extent
reducing Consolidated EBITDA, the $13.2 million charge to accounts
receivable taken in the fourth quarter of 2002 in respect of a European can
customer) for the last twelve months ended December 31, 2002 on a pro forma
---------
basis to give effect to the Transactions and other asset dispositions was
at least $750 million.
(x) The Lenders shall have received an agreed-upon procedures letter
with respect to the unaudited financial information of Crown Holdings as of
December 31, 2002 and for the year then ended, which shall be in substance
the same as the "comfort letter" provided to the initial purchasers as of
the "pricing date" of such securities and the Effective Date with respect
to the Second Lien Notes and the Third Lien Notes.
(y) There shall be no litigation, administrative proceeding or
investigation that could reasonably be expected to have a material adverse
effect on the business, assets, operations, prospects, condition (financial
or otherwise), contingent liabilities, prospects, material agreements,
customer relationships or investments of Crown Holdings and its
subsidiaries, taken as a whole, or on the ability of the parties to
consummate the Transactions, and shall have been no adverse development or
decision since January 28, 2003 in any pending litigation, proceeding or
investigation.
(z) The Administrative Agent shall be satisfied that, as of the
Effective Date, the interest rate on any Loans hereunder shall not exceed
the maximum rate permitted by applicable law.
(aa) The Lenders shall have received solvency letters from American
Appraisals, together with such other evidence reasonably requested by the
Lenders, confirming the solvency of each of (i) Crown Holdings and its
Subsidiaries, (ii) the U.S. Borrower and its Subsidiaries and (iii) the
Euro Borrower and its Subsidiaries, in each case, on a consolidated basis
after giving effect to the Transactions, in the forms attached hereto as
Exhibit T.
---------
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(bb) The Administrative Agent and the Syndication Agent shall be
satisfied that there has not occurred any material adverse change in the
business, assets, operations, properties, condition (financial or
otherwise), contingent liabilities, prospects, material agreements or
customer relationships of Crown Holdings or its Subsidiaries or
investments, taken as a whole, since December 31, 2001.
SECTION 4.02. Conditions to Each Credit Event. The agreement of each Lender
-------------------------------
to make any Loan and of the Issuing Bank to issue, amend, renew or extend any
Letter of Credit (such event being called a "Credit Event") (excluding
-------------
continuations and conversions of Loans) requested to be made by it on any date
is subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Credit Event as required by Section 2.02, 2.04 or 2.06, as applicable (or
such notice shall have been deemed given in accordance with Section
2.04(b)).
(b) The representations and warranties set forth in Article III hereof
and in the other Loan Documents shall be true and correct with the same
effect as if then made (unless expressly stated to relate to an earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date).
(c) At the time of and immediately after such Credit Event, no Default
or Event of Default shall have occurred and be continuing.
Each Credit Event shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Credit Event, as to the matters
specified in paragraphs (b) and (c) of this Section 4.02.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees and other amounts payable hereunder or under
any other Loan Document have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, each
Loan Party, jointly and severally, covenants and agrees with the Lenders that:
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SECTION 5.01. Financial Information, Reports, Notices, etc. Crown Holdings
---------------------------------------------
will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 45 days (or such
shorter period for the filing of Crown Holdings' Form 10-Q as may be
required by the SEC) after the end of each of the first three Fiscal
Quarters of each Fiscal Year of Crown Holdings (commencing with the Fiscal
Quarter ending March 31, 2003), a consolidated balance sheet of Crown
Holdings and its Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of earnings and cash flow of Crown Holdings and its
Subsidiaries for such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, certified by a Financial Officer of Crown Holdings, it being
understood and agreed that the delivery of Crown Holdings' Form 10-Q (as
filed with the SEC), if certified as required in this clause (a), shall
satisfy the requirements set forth in this clause;
(b) as soon as available and in any event within 90 days (or such
shorter period for the filing of Crown Holdings' Form 10-K as may be
required by the SEC) after the end of each Fiscal Year of Crown Holdings
(commencing with the Fiscal Year ended December 31, 2002), a copy of the
annual audit report for such Fiscal Year for Crown Holdings and its
Subsidiaries, including therein a consolidated balance sheet of Crown
Holdings and its Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and cash flow of Crown Holdings and its
Subsidiaries for such Fiscal Year, in each case certified (without any
Impermissible Qualification) in a manner acceptable to the Administrative
Agent by PricewaterhouseCoopers or other independent public accountants
reasonably acceptable to the Administrative Agent (it being understood and
agreed that the delivery of Crown Holdings' Form 10-K (as filed with the
SEC), if certified as required by this clause (b), shall satisfy such
delivery requirement in this clause), together with (other than in the case
of the Fiscal Year ended December 31, 2002) a certificate from a Financial
Officer of Crown Holdings and the Borrowers substantially in the form of
Exhibit D (a "Compliance Certificate") containing a computation in
---------- ------------------------
reasonable detail of, and showing compliance with, each of the financial
ratios and restrictions contained in Sections 6.13 through 6.17 and to the
effect that, in making the examination necessary for the signing of such
certificate, such Financial Officer has not become aware of any Default or
Event of Default that has occurred and is continuing, or, if such Financial
Officer has become aware of such Default or Event of Default, describing
such Default or Event of Default and the steps, if any, being taken to cure
it, and concurrently with the delivery of the foregoing financial
statements, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default or
Event of Default (which certificate may be limited to the extent required
by accounting rules or guidelines);
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(c) as soon as available and in any event within 45 days (or such
shorter period as may be required for the filing of Crown Holdings' Form
10-Q by the SEC) after the end of each Fiscal Quarter, a Compliance
Certificate from a Financial Officer of Crown Holdings, the U.S. Borrower
and the Euro Borrower containing a computation in reasonable detail of, and
showing compliance with, each of the financial ratios and restrictions
contained in Sections 6.13 through 6.17 and to the effect that, in making
the examination necessary for the signing of such certificate, such
Financial Officers have not become aware of any Default or Event of Default
that has occurred and is continuing, or, if such Financial Officers have
become aware of such Default or Event of Default, describing such Default
or Event of Default and the steps, if any, being taken to cure it;
(d) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of Crown
Holdings (commencing with the Fiscal Quarter ending June 30, 2003) (i) an
unaudited consolidating balance sheet of Crown Holdings and its
Subsidiaries as of the end of such Fiscal Quarter and consolidating
statement of earnings and cash flows of Crown Holdings of its Subsidiaries
for such Fiscal Quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter,
certified by a Financial Officer of Crown Holdings (it being understood and
agreed that such financial statements need only break out (A) the U.S.
Borrower and its Domestic Subsidiaries (other than a Receivables Subsidiary
and the Insurance Subsidiary), on a consolidated basis; (B) the
Subsidiaries of the U.S. Borrower that are not Subsidiary Loan Parties, on
a consolidated basis; (C) the Euro Borrower and the Euro Subsidiary Loan
Parties (other than the U.K. Segment (as defined below) and the German
Segment (as defined below)), on a consolidated basis; (D) each Subsidiary
of the Euro Borrower that is not a Euro Subsidiary Loan Party, on a
consolidated basis; (E) the financial position and results of operations of
the Euro Borrower's business in the United Kingdom (the "U.K. Segment"), on
------------
a consolidated basis; (F) the financial position and results of operations
of the Euro Borrower's business in the Federal Republic of Germany (the
"German Segment"), on a consolidated basis, in each case, as of the end of
--------------
such Fiscal Quarter), and (ii) a cash flow statement of each of the U.S.
Borrower and the Euro Borrower showing Cash In Flows and Cash Out Flows on
an unconsolidated basis for such Fiscal Quarter;
(e) as soon as available and in any event within 105 days after the
end of each Fiscal Year of Crown Holdings (commencing with the Fiscal Year
ending December 31, 2003), (i) an unaudited consolidating balance sheet of
Crown Holdings and its Subsidiaries as of the end of such Fiscal Year
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and consolidating statements of earnings and cash flow of Crown Holdings
and its Subsidiaries for such Fiscal Year, certified by a Financial Officer
of Crown Holdings (it being understood and agreed that such financial
statements need only break out (A) the U.S. Borrower and its Domestic
Subsidiaries (other than a Receivables Subsidiary and the Insurance
Subsidiary), on a consolidated basis; (B) the Subsidiaries of the U.S.
Borrower that are not Subsidiary Loan Parties, on a consolidated basis; (C)
the Euro Borrower and the Euro Subsidiary Loan Parties (other than the U.K.
Segment and the German Segment), on a consolidated basis; (D) each
Subsidiary of the Euro Borrower that is not a Euro Subsidiary Loan Party,
on a consolidated basis; (E) the financial position and results of
operations of the U.K. Segment, on a consolidated basis; (F) the financial
position and results of operations of the German Segment, on a consolidated
basis, in each case, as of the end of such Fiscal Year), and (ii) a cash
flow statement of each of the U.S. Borrower and the Euro Borrower showing
Cash In Flows and Cash Out Flows on an unconsolidated basis for such Fiscal
Quarter;
(f) as soon as available and in any event within 45 days after the end
of each Fiscal Quarter and 90 days after the end of each Fiscal Year
(commencing with the Fiscal Quarter ending June 30, 2003), the aggregate
amount of cash and Permitted Investments held by each Subsidiary of the
Euro Borrower that is not a Subsidiary Loan Party;
(g) no later than January 31 of each Fiscal Year of Crown Holdings
(commencing with the Fiscal Year ending December 31, 2003), a detailed
consolidated budget of Crown Holdings and its Subsidiaries by Fiscal
Quarter for such Fiscal Year (including a projected consolidated balance
sheet and related statements of projected operations and cash flow as of
the end of and for each Fiscal Quarter during such Fiscal Year) and,
promptly when available, any significant revisions of such budgets;
(h) promptly upon receipt thereof, copies of all reports submitted to
Crown Holdings or its Subsidiaries by independent certified public
accountants in connection with each annual, interim or special audit of the
books of Crown Holdings or any of its Subsidiaries made by such
accountants, including any management letters submitted by such accountants
to management in connection with their annual audit;
(i) as soon as possible and in any event within three Business Days
after becoming aware of the occurrence of any Default or Event of Default,
a statement of a Financial Officer of Crown Holdings, the U.S. Borrower and
the Euro Borrower setting forth details of such Default or Event of Default
and the action which Crown Holdings, the U.S. Borrower and the Euro
Borrower have taken and propose to take with respect thereto;
(j) as soon as possible and in any event within five Business Days
after (i) the occurrence of any adverse development with respect to any
litigation, action
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or proceeding described in Section 3.08 that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect
or (ii) the commencement of any litigation, action or proceeding of the
type described in Section 3.08, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or that
purports to affect the legality, validity or enforceability of this
Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, notice thereof and copies of all documentation relating
thereto;
(k) promptly after the sending or filing thereof, copies of all
reports which any Loan Party sends to any of its security holders,
including, without limitation, holders of the Second Lien Notes or Third
Lien Notes, and all reports, registration statements (other than on Form
S-8 or any successor form) or other materials which any Loan Party or any
of its Subsidiaries or any of their officers file with the SEC or any
national securities exchange;
(l) immediately upon becoming aware of the taking of any specific
actions by Crown Holdings or any other Person to terminate any Pension Plan
(other than a termination pursuant to Section 4041(b) of ERISA which can be
completed without Crown Holdings or any ERISA Affiliate having to provide
more than $1.0 million in addition to the normal contribution required for
the plan year in which termination occurs to make such Pension Plan
sufficient), or the occurrence of an ERISA Event which could result in a
Lien or in the incurrence by a Loan Party of any liability, fine or penalty
which could reasonably be expected to have a Material Adverse Effect, or
any increase in the contingent liability of a Loan Party with respect to
any post-retirement Welfare Plan benefit if the increase in such contingent
liability which could reasonably be expected to have a Material Adverse
Effect, notice thereof and copies of all documentation relating thereto;
(m) upon request by the Administrative Agent, copies of: (i) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
----------
filed by any Loan Party or ERISA Affiliate with the Internal Revenue
Service with respect to each Pension Plan; (ii) the most recent actuarial
valuation report for each Pension Plan; (iii) all notices received by any
Loan Party or ERISA Affiliate from a Multiemployer Plan sponsor or any
governmental agency concerning an ERISA Event; and (iv) such other
documents or governmental reports or filings relating to any Plan as the
Administrative Agent shall reasonably request;
(n) as soon as possible, notice of any other development that could
reasonably be expected to have a Material Adverse Effect;
(o) on the 10th day of each month (or, if not a Business Day, the
Business Day immediately following such day) a report setting forth (i) the
amount of aggregate unused availability on such date of Revolving Credit
Commitments and (ii) the aggregate amount of cash held in immediately
available funds by Crown Holdings and its Subsidiaries on such date;
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(p) simultaneously with the delivery of financial statements pursuant
to Section 5.01(a) and (b), certifications by the chief executive officer
and the chief financial officer or others under the Exchange Act, the
Xxxxxxxx-Xxxxx Act of 2002, as amended, and/or the rules and regulations of
the SEC; and
(q) such other information respecting the condition or operations,
financial or otherwise, of Crown Holdings, any Borrower or any of their
Subsidiaries as any Lender through the Administrative Agent may from time
to time reasonably request.
SECTION 5.02. Compliance with Laws, etc. Each Loan Party will, and will
---------------------------
cause each of its Subsidiaries to, comply in all respects with all applicable
laws, rules, regulations and orders, except where such noncompliance,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, such compliance to include, subject to the foregoing
(without limitation):
(a) the maintenance and preservation of its and its Subsidiaries'
existence and its qualification as a foreign corporation or partnership (or
comparable foreign qualification, if applicable, in the case of any other
form of legal entity), and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except as provided in Section 5.09.
SECTION 5.03. Maintenance of Properties. Each Loan Party will, and will
---------------------------
cause each of its Subsidiaries to, maintain, preserve, protect and keep its
material properties and assets in good repair, working order and condition, and
make necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted at all
times; provided that nothing in this Section 5.03 shall prevent any Loan Party
--------
from discontinuing the operation and maintenance of any of its properties or any
of those of its Subsidiaries if such discontinuance is, in the judgment of such
Loan Party, desirable in the conduct of its or their business and does not in
the aggregate have a Material Adverse Effect.
SECTION 5.04. Insurance. Each Loan Party will, and will cause each of its
---------
Subsidiaries to, maintain or cause to be maintained with financially sound and
responsible insurance companies (a) insurance with respect to its properties
material to the business of Crown Holdings and its Subsidiaries against such
casualties and contingencies and of such types and in such amounts as is
customary in the case of similar businesses operating in the same or similar
locations and (b) all insurance required to be maintained pursuant to the
Security Documents, and will, upon request of the Administrative Agent,
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furnish to each Lender at reasonable intervals a certificate of an
Authorized Officer of Crown Holdings setting forth the nature and extent of
all insurance maintained by Crown Holdings and its Subsidiaries in
accordance with this Section. Each such insurance policy shall provide that
(i) it may not be canceled or otherwise terminated without at least thirty
(30) days' prior written notice to the Collateral Agents (and to the extent
any such policy is cancelled, modified or renewed, the Borrower shall
deliver a copy of the renewal or replacement policy (or other evidence
thereof) to the Administrative Agent and the Collateral Agent, or insurance
certificate with respect thereto, together with evidence satisfactory to
the Administrative Agent and the Collateral Agents of the payment of the
premium therefor); (ii) to the extent such insurance policy constitutes
property insurance, all losses payable thereunder in an amount in excess of
$10.0 million shall be payable to the Collateral Agents, as loss payee,
pursuant to a standard non-contributory New York mortgagee endorsement and
shall be in an amount at least sufficient to prevent coinsurance liability;
provided that the Collateral Agents, as loss payee pursuant to the
--------
foregoing, shall not agree to the adjustment of any claim without the
consent of Crown Holdings (such consent not to be unreasonably withheld or
delayed); and (iii) with respect to liability insurance, the Collateral
Agents shall be named as an additional insured. Each Loan Party shall
promptly notify the Collateral Agents if it does not intend to or has not
paid when due any premium under any such insurance policy, and after 30
days after receipt of such notice, the Collateral Agents shall be permitted
to pay such premium. In the event any Loan Party gives the Collateral
Agents written notice that it does not intend to pay any premium relating
to any insurance policy when due, the Collateral Agents shall not exercise
their right to pay such premium so long as such Loan Party delivers to the
Collateral Agents a replacement insurance policy or insurance certificate
evidencing that such replacement policy or certificate provides the same
insurance coverage required under this Section 5.04 as the policy being
replaced by such Loan Party with no lapse in such coverage.
SECTION 5.05. Books and Records; Visitation Rights. Each Loan Party will,
-------------------------------------
and will cause each of its Subsidiaries to, keep books and records which
accurately reflect all of its business affairs and material transactions and
permit the Administrative Agent and each Lender or any of their respective
representatives, at reasonable times and intervals, to visit all of its offices,
to discuss its financial matters with its officers and independent public
accountant and, upon the reasonable request of the Administrative Agent or a
Lender, to examine (and, at the expense of the relevant Loan Party or
Subsidiary, photocopy extracts from) any of its books or other corporate or
partnership records.
SECTION 5.06. Environmental Covenant. Each Loan Party will, and will cause
----------------------
each of its Subsidiaries to:
(a) use and operate all of its facilities and properties in compliance
with all Environmental Laws except for such noncompliance which, singly or
in the aggregate, would not reasonably be expected to have a Material
Adverse Effect, keep all Environmental Permits in effect and remain in
compliance therewith,
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except where the failure to keep in effect such Environmental Permits, or
any noncompliance with the provisions thereof, would not reasonably be
expected to have a Material Adverse Effect, and handle all Hazardous
Materials in compliance with all applicable Environmental Laws, except for
any noncompliance that would not reasonably be expected to have a Material
Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of all
written inquiries, claims, complaints or notices from any Person relating
to the environmental condition of its facilities and properties or
compliance with or liability under any Environmental Law which could
reasonably be expected to have a Material Adverse Effect, and promptly cure
and have dismissed with prejudice or contest in good faith any actions and
proceedings relating thereto;
(c) in the event of the presence of any Hazardous Material on any
Mortgaged Property which is in violation of any Environmental Law, or which
could reasonably be expected to have Environmental Liability, in each case
which could reasonably be expected to have a Material Adverse Effect, Crown
Holdings, each Borrower and their respective Subsidiaries, upon discovery
thereof, shall take all necessary steps to initiate and expeditiously
complete all response, corrective and other action to mitigate and
eliminate any such adverse effect in accordance with and to the extent
required by applicable Environmental Laws, and shall keep the
Administrative Agent informed of their actions;
(d) at the written request of the Administrative Agent or the
Requisite Lenders, which request shall specify in reasonable detail the
basis therefor, Crown Holdings, each Borrower and each of their
Subsidiaries will provide, at their sole cost and expense, an environmental
site assessment report concerning any Mortgaged Property now or hereafter
owned or leased by such Borrower or any of its Subsidiaries, prepared by an
environmental consulting firm reasonably acceptable to the Administrative
Agent, indicating the presence or absence of Hazardous Materials and the
potential cost of any Remedial Action in connection with such Hazardous
Materials on, at, under or emanating from such Mortgaged Property pursuant
to any applicable Environmental Law; provided that such request may be made
--------
only if (i) there has occurred and is continuing an Event of Default or
(ii) the Administrative Agent or the Requisite Lenders reasonably believe
that a Borrower or any Subsidiary of a Borrower or any such Mortgaged
Property is not in compliance with Environmental Law and such noncompliance
could reasonably be expected to have a Material Adverse Effect, or that
circumstances exist that could reasonably be expected to form the basis of
an Environmental Claim against a Borrower or any Subsidiary of a Borrower
or to result in Environmental Liability, in each case that could reasonably
be expected to have a Material Adverse Effect (in such events as are listed
in this subparagraph, the environmental site assessment shall be focused
upon the noncompliance or other circumstances as applicable). If a Borrower
or any Subsidiary of Borrower fails to provide the same within 90 days
after such request was made, the Administrative Agent may order the same,
and such Borrower or Subsidiary shall grant and hereby grants to the
Administrative Agent and the Requisite Lenders and their agents access to
such Mortgaged Property and specifically grants the Administrative Agent
and the Requisite Lenders an irrevocable non-exclusive license, subject to
the rights of tenants, to perform such an assessment, all at such
Borrower's or Subsidiary's sole cost and expense; and
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(e) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 5.06.
SECTION 5.07. Information Regarding Collateral. (a) Each Loan Party will
---------------------------------
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure, (iv) in any Loan
Party's Federal Taxpayer Identification Number or (v) in any Loan Party's
jurisdiction of organization. Each Loan Party agrees not to effect or permit any
change referred to in the preceding sentence unless all filings have been made
under the UCC or otherwise that are required in order for the applicable
Collateral Agent to continue at all times following such change to have a valid,
legal and perfected security interest in all relevant Collateral. Each Loan
Party also agrees promptly to notify the Administrative Agent if any material
portion of the Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial statements with
respect to the preceding fiscal year pursuant to clause (b) of Section 5.01,
each Borrower shall deliver to the Administrative Agent a certificate of a
Financial Officer and the chief legal officer of each Borrower (i) setting forth
the information required pursuant to Sections 1, 2, 7, 8, 12, 13, 14, 15, 16, 17
and 18 of the Perfection Certificate or confirming that there has been no change
in such information since the date of the Perfection Certificate delivered on
the Effective Date or the date of the most recent certificate delivered pursuant
to this Section and (ii) certifying that all UCC financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Documents for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
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SECTION 5.08. Existence; Conduct of Business. Each Loan Party will, and
-------------------------------
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation,
--------
liquidation or dissolution permitted under Section 6.03.
SECTION 5.09. Performance of Obligations. Each Loan Party will, and will
---------------------------
cause each of its Subsidiaries to, perform all of its respective obligations
under the terms of each mortgage, indenture, security agreement, other debt
instrument and material contract by which they are bound or to which they are a
party, except where such nonperformance could not reasonably be expected to have
a Material Adverse Effect.
SECTION 5.10. Casualty and Condemnation. Each Loan Party will, and will
--------------------------
cause each of its Subsidiaries to, (a) furnish to the Administrative Agent and
the Lenders prompt written notice of any casualty or other insured damage to any
Collateral in an amount in excess of $10.0 million or the commencement of any
action or proceeding for the taking of any Collateral or any part thereof or
interest therein under power of eminent domain or by condemnation or similar
proceeding and (b) ensure that the Net Proceeds of any such event (whether in
the form of insurance proceeds, condemnation awards or otherwise) are collected
and applied in accordance with the applicable provisions of this Agreement and
the Security Documents.
SECTION 5.11. Guarantees; Pledge of Additional Collateral. (a) In the event
-------------------------------------------
that any Domestic Subsidiary of Crown Holdings existing on the Effective Date
(other than the Insurance Subsidiary and the Receivables Subsidiary) has not
previously executed the U.S. Guarantee Agreement or in the event that any Person
becomes a Domestic Subsidiary (other than a Receivables Subsidiary) of Crown
Holdings after the Effective Date, Crown Holdings will promptly notify the
Administrative Agent of that fact and cause such Subsidiary to execute and
deliver to the Administrative Agent a counterpart of the U.S. Guarantee
Agreement and deliver to the U.S. Collateral Agent a counterpart of the U.S.
Security Agreement, the U.S. Shared Pledge Agreement and the U.S. Bank Pledge
Agreement and to take all such further actions and execute all such further
documents and instruments (including actions, documents and certificates
comparable to those described in Section 4.01(d)) as may be necessary or, in the
reasonable opinion of the Administrative Agent, desirable to create in favor of
the U.S. Collateral Agent, for the benefit of the Secured Parties, a valid and
perfected first priority Lien on all of the property and assets of such
Subsidiary described in the applicable forms of U.S. Security Documents.
(b) In any event within 30 days after the acquisition of assets of the type
that would have constituted U.S. Collateral on the Effective Date pursuant to
the U.S. Security Agreement, the U.S. Bank Pledge Agreement
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or the U.S. Shared Pledge Agreement (the "Additional U.S. Collateral"), Crown
----------------------------
Holdings will, and will cause each appropriate U.S. Subsidiary to, take all
necessary action, including the filing of appropriate financing statements under
the provisions of the UCC, applicable domestic or local laws, rules or
regulations in each of the offices where such filing is necessary or
appropriate, or entering into or amending the U.S. Guarantee Agreement, the U.S.
Security Agreement, the U.S. Bank Pledge Agreement or the U.S. Shared Pledge
Agreement, to grant to the U.S. Collateral Agent for its benefit and the benefit
of the Secured Parties a perfected Lien (having the priority set forth in the
U.S. Security Agreement, the U.S. Bank Pledge Agreement or the U.S. Shared
Pledge Agreement, as applicable) on such Additional U.S. Collateral pursuant to
and to the full extent required by the U.S. Security Agreement, the U.S. Bank
Pledge Agreement, the U.S. Shared Pledge Agreement and this Agreement
(including, without limitation, to the extent requested by the U.S. Collateral
Agent, satisfaction of the conditions set forth in subsections (b)(ii) and (h)
of Section 4.01).
(c) In the event that any Non-U.S. Guarantee Subsidiary existing on the
Effective Date has not previously executed the Non-U.S. Guarantee Agreement or
in the event that any Person becomes a Non-U.S. Guarantee Subsidiary after the
Effective Date, the Euro Borrower will promptly notify the Administrative Agent
of that fact and, to the extent permitted by applicable law, cause such
Subsidiary to execute and deliver to the Administrative Agent a counterpart of
the Non-U.S. Guarantee Agreement and deliver to the Euro Collateral Agent a
counterpart of the applicable Euro Security Documents and such documents and
instruments and take such further actions (including actions, documents and
instruments comparable to those referred to in Section 4.01(d)) as may be
necessary or, in the reasonable opinion of the Administrative Agent, desirable
to create in favor of the Euro Collateral Agent, for the benefit of the Term B
Euro Lenders and Revolving Euro Lenders, a valid and perfected first priority
Lien on all of the property and assets (including, without limitation, Real
Property) of such Subsidiary that would have constituted Euro Collateral on the
Effective Date under the applicable Euro Security Documents of other Non-U.S.
Guarantee Subsidiaries organized in the same jurisdiction to the extent legally
permissible.
(d) In any event within 30 days after the acquisition of assets of the type
that would have constituted Euro Collateral on the Effective Date pursuant to
any Euro Security Document (the "Additional Euro Collateral"), the Euro Borrower
--------------------------
will, and will cause each appropriate Subsidiary to, take all necessary action,
including the filing of appropriate financing statements, under the provisions
of applicable laws, rules or regulations in each of the offices where such
filing is necessary or appropriate, or entering into or amending any Euro
Security Document, to grant to the Euro Collateral Agent for its benefit and the
benefit of the Secured Parties a perfected Lien on such Additional Euro
Collateral pursuant to and to the full extent required by this Agreement
(including, without limitation, to the extent requested by the U.K.
Administrative Agent, satisfaction of the conditions set forth in subsection (h)
of Section 4.01).
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(e) In the event that any U.S. Loan Party or its respective Subsidiaries
acquire an interest in additional Real Property having a fair market value in
excess of $2.0 million as determined in good faith by Crown Holdings, Crown
Holdings or the appropriate Loan Party or Subsidiary, as the case may be, and
using its commercially reasonable efforts in respect of any leases, will take
such actions and execute such documents as the Collateral Agent shall require to
confirm the Lien of a Mortgage, if applicable, or to create a new Mortgage
(including, without limitation, satisfaction of the conditions set forth in
subsections (b)(ii), (h) and (i) of Section 4.01).
(f) All actions taken by the parties in connection with the pledge of
Additional Collateral, including, without limitation, costs of counsel for the
Administrative Agent and the Collateral Agent, shall be for the account of the
Loan Parties, which shall pay all sums due on demand.
(g) If, for any reason after the Effective Date, any debt securities of
Crown Holdings or any of its Subsidiaries become secured by a Lien on Principal
Property, each Loan Party shall, and shall cause each of its Subsidiaries to,
take all necessary action so that any limitation on the Lien of the applicable
Collateral Agent and the applicable Lenders on Principal Property is eliminated
from the Security Documents and the applicable Collateral Agent and the
applicable Lenders enjoy a full and unconditional Lien on all Principal
Property.
SECTION 5.12. Further Assurances. Each Loan Party will, and will cause each
------------------
of its Subsidiaries to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, notarizations,
fixture filings, mortgages, deeds of trust and other documents and the delivery
of appropriate opinions of counsel), which may be required under any applicable
law, or which the Administrative Agent or the Requisite Lenders may reasonably
request, to effectuate the transactions contemplated by the Loan Documents or to
grant, preserve, protect or perfect the Liens created by the Security Documents
or the validity or priority of any such Lien, all at the expense of the Loan
Parties. Each Loan Party also agrees to provide to the Administrative Agent,
from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
SECTION 5.13. Use of Proceeds; Funding of Collateral Account. Crown
---------------------------------------------------
Holdings and each Borrower covenant and agree that the proceeds of all
Borrowings hereunder and all Letters of Credit issued hereunder will be used for
general corporate purposes; provided that (i) the proceeds of all Term B Loans
--------
will be utilized in accordance with Schedule 5.13 on the Effective Date together
-------------
with the net proceeds of the other Transactions to repay the Existing Credit
Agreement and refinance Refinanced Debt, or to the extent that any Refinanced
Debt may not be refinanced
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(whether through voluntary repayment, purchase, repurchase, redemption or
defeasance) on the Effective Date, such proceeds shall be deposited into the
Dollar Collateral Account or Euro Collateral Account, as applicable, on the
Effective Date, and thereafter such proceeds may only be released to repay or
repurchase Refinanced Public Debt in accordance with the terms of the U.S.
Security Agreement or the Euro Collateral Account Agreements, as applicable, and
(ii) no Borrowing under the Revolving Loans may be used, directly or indirectly,
to repay, purchase, repurchase, redeem or defease principal of Refinanced Public
Debt or Retained Public Debt.
SECTION 5.14. Payment of Taxes. Each Loan Party will, and will cause each
----------------
of its Subsidiaries to, pay and discharge all material taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims which, if unpaid, might become a
Lien or charge upon any properties of such Person or cause a failure or
forfeiture of title thereto; provided that no Loan Party nor any of its
--------
Subsidiaries shall be required to pay any such tax, assessment, charge, levy or
claim that is being contested in good faith and by proper proceedings diligently
conducted, which proceedings have the effect of preventing the forfeiture or
sale of the property or asset that may become subject to such Lien, if it has
maintained adequate reserves with respect thereto in accordance with and to the
extent required under GAAP; provided, further, that any such contest of any tax,
-----------------
assessment, charge, levy or claim with respect to Collateral shall satisfy the
Contested Collateral Lien Conditions.
SECTION 5.15. Equal Security for Loans and Notes. If any Loan Party or any
----------------------------------
of its Subsidiaries shall create or assume any Lien upon any of its property or
assets, whether now owned or hereafter acquired, other than Permitted Liens
(unless prior written consent to the creation or assumption thereof shall have
been obtained from the Administrative Agent and the Requisite Lenders), it shall
make or cause to be made effective provisions whereby the Obligations will be
secured by such Lien equally and ratably with any and all other assets or
property thereby secured as long as any such assets or property shall be
secured; provided that this covenant shall not be construed as consent by the
--------
Administrative Agent and the Requisite Lenders to any violation of the
provisions of Section 6.02.
SECTION 5.16. Cash Accounts. (a) No U.S. Loan Party shall establish and/or
-------------
maintain any Deposit Account (other than Deposit Accounts having a maximum
aggregate balance of $1.0 million or otherwise excluded pursuant to the terms of
the U.S. Security Agreement) unless (1) such U.S. Loan Party shall have given
the Administrative Agent 10 days' prior written notice of its intention to
establish such new Deposit Account with a Bank and (2) such Bank and such U.S.
Loan Party shall have duly executed and delivered to the U.S. Collateral Agent a
Control Agreement with respect to such Deposit Account.
(b) No Euro Loan Party shall establish and/or maintain cash or Permitted
Investments in any deposit account (other than deposit accounts having a maximum
aggregate balance
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of the Euro Equivalent of $10.0 million, other than with respect to occasional
receipt of customer receivables, in which case such amount may exceed the Euro
Equivalent of $10.0 million for no more than one Business Day, but in no event
may exceed the Euro Equivalent of $30.0 million) unless (1) such Euro Loan Party
shall have given the Administrative Agent 10 days' prior written notice of its
intention to establish such new deposit account with a bank and (2) the Euro
Collateral Agent shall be satisfied that the Term B Euro Lenders and the
Revolving Euro Lenders have a first priority Lien thereon.
SECTION 5.17. Board of Euro Borrower. (a) Crown Holdings shall cause the
-----------------------
board of directors (or equivalent organizational body) of the Euro Borrower to
consist of at all times at least a majority of Persons that are executive
officers of Crown Holdings.
(b) Unless the principal of any Indebtedness incurred or guaranteed by the
Euro Borrower or any of its Subsidiaries has finally matured and not been paid
or has been accelerated, the Euro Borrower and its Subsidiaries shall not apply
for or consent to the appointment of a trustee, receiver or other custodian or
commence a bankruptcy, reorganization or other proceedings under any bankruptcy
or insolvency law, except as required by applicable law.
SECTION 5.18. Post-Closing Obligations. (a) Crown Holdings shall, and shall
------------------------
cause each of its Subsidiaries to, as expeditiously as possible, but in no event
later than the number of days after the Effective Date applicable to each item
set forth below:
(i) Leasehold Mortgages: within 90 days after the Effective Date
--------------------
unless otherwise extended or waived by the U.S. Collateral Agent in its
reasonable discretion, use its commercially reasonable efforts to execute
and deliver a Mortgage encumbering each Mortgaged Property in which the
applicable Loan Party holds a leasehold interest (as indicated on Schedule
--------
5.18(a)(i) hereto), duly executed and acknowledged by the applicable Loan
----------
Party, and otherwise in form for recording in the recording office of each
political subdivision where each such leasehold Mortgaged Property is
situated, together with such certificates, affidavits, questionnaires or
returns as shall be required in connection with the recording or filing
thereof to create a lien under applicable law, and such financing
statements or other instruments as are contemplated by the local or foreign
counsel opinions in respect of such Mortgage, all of which shall be in form
and substance reasonably satisfactory to the U.S. Collateral Agent, and any
other instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, which Mortgage and financing statements and other
instruments shall when recorded be effective to create a first priority
Lien on such Mortgaged Property subordinate to no Liens other than Prior
Liens (as defined in the applicable Mortgage) and subject to no other Liens
except Liens expressly permitted by such Mortgage, together with (i) an
opinion of local counsel as required pursuant to Section 4.01(b)(ii) and
(ii) each other item and/or documentation required to be delivered with
respect to each Mortgaged Property pursuant to Section 4.01(i);
-116-
(ii) Foreign Stock Pledges: within 45 days after the Effective Date
----------------------
unless otherwise extended or waived by the U.S. Collateral Agent in its
reasonable discretion, the U.S. Borrower shall have authorized, executed
and delivered all documents and taken all actions necessary or appropriate
to grant in favor of the U.S. Collateral Agent a fully perfected first
priority pledge of and security interest in each Non-U.S. Subsidiary
identified on Schedule 5.18(a)(ii) hereto (including, without limitation,
---------------------
the taking of all actions and the delivery of all items of the type and
nature enumerated in Sections 4.01(h)(A) and 4.01(h)(G) of this Agreement
and the payment of all fees in connection therewith);
(iii) Landlord Subordinations: within 45 days after the Effective Date
-----------------------
unless otherwise extended or waived by the U.S. Collateral Agent in its
reasonable discretion, to the extent not delivered on the Effective Date,
continue to use its commercially reasonable efforts to deliver a Landlord
Subordination substantially in the form of Exhibit Q with respect to each
---------
leased Real Property and/or a bailee letter with respect to each warehouse
facility where any Loan Party maintains Collateral listed on Schedule
--------
5.18(a)(iii); and
------------
(iv) UCC Insurance: within 30 days after the Effective Date unless
--------------
otherwise extended or waived by the U.S. Collateral Agent in its reasonable
discretion, a policy of UCC insurance in the amount of $50 million issued
by Fidelity National Title Insurance Company insuring the validity and
perfection of the Liens granted to the U.S. Collateral Agent under the U.S.
Security Agreement, the U.S. Bank Pledge Agreement and the U.S. Shared
Pledge Agreement and having the priority set forth in the U.S. Security
Agreement, the U.S. Bank Pledge Agreement and the U.S. Shared Pledge
Agreement, as applicable.
(b) Crown Holdings shall, and shall cause each of its Subsidiaries to, as
expeditiously as possible, but in no event later than the number of days after
the Effective Date applicable to each item set forth below:
(i) Non-U.S. Mortgages: within 45 days after the Effective Date unless
------------------
otherwise extended or waived by the U.K. Administrative Agent in its
reasonable discretion, execute and deliver a Mortgage encumbering each Real
Property identified on Schedule 5.18(b)(i) hereto, duly executed and
--------------------
acknowledged by the applicable Loan Party, and otherwise in form for
recording in the recording office of each political subdivision where each
Real Property is situated, together with such certificates, notarizations,
affidavits, questionnaires or returns as shall be required in connection
with the recording or filing thereof to create a lien under applicable law,
and such financing statements or other instruments as are contemplated by
the local or foreign counsel
-117-
opinions in respect of such Mortgage, all of which shall be in form and
substance reasonably satisfactory to the U.K. Administrative Agent, and any
other instruments necessary to grant a mortgage lien under the laws of any
applicable jurisdiction, which Mortgage and financing statements and other
instruments shall when recorded be effective to create a first priority
Lien on such Mortgaged Property subordinate to no Liens other than Prior
Liens (as defined in the applicable Mortgage) and subject to no other Liens
except Liens expressly permitted by such Mortgage, together with (i) except
for any Mortgaged Property in France, an opinion of local counsel as
required pursuant to Section 4.01(b)(ii) and (ii) each other item and/or
documentation required to be delivered with respect to each Mortgaged
Property pursuant to Section 4.01(j); and
(ii) Foreign Pledges: within 45 days after the Effective Date unless
----------------
otherwise extended or waived by the U.K. Administrative Agent in its
reasonable discretion, (i) the Euro Borrower shall have authorized,
executed and delivered all documents and taken all actions necessary or
appropriate to grant in favor of the Euro Collateral Agent a first priority
pledge of and security interest in each Non-U.S. Subsidiary identified on
Schedule 5.18(b)(ii) hereto under the laws of the jurisdiction of
----------------------
organization of such Non-U.S. Subsidiary (including, without limitation,
the taking of all actions or the foreign equivalent, if applicable, and the
delivery of all items, or their foreign equivalent, if applicable, of the
type and nature enumerated in Sections 4.01(j)(A), 4.01(j)(F) and
4.01(j)(G) of this Agreement, the delivery of all certificates, agreements
or instruments representing the equity interest of each such Non-U.S.
Subsidiary, accompanied by instruments of assignment or transfer endorsed
in blank to the extent required or permitted under the jurisdiction of
organization of the applicable issuer of such equity interests and the
payment of all fees in connection therewith) and (ii) the U.K.
Administrative Agent shall have received, on behalf of itself, the other
Agents and the Lenders, a favorable written opinion of foreign counsel in
the jurisdictions of organization of each such Non-U.S. Subsidiary as shall
be reasonably acceptable to the Euro Collateral Agent, (a) dated no later
than such 45th day after the Effective Date, (b) addressed to the U.K.
Administrative Agent and the Lenders and (c) covering such matters relating
to the Euro Security Documents and the Loan Documents as the U.K.
Administrative Agent shall request.
SECTION 5.19. Hedging Arrangements. The Borrowers shall ensure that at all
--------------------
times at least 50% of the aggregate outstanding principal amounts of the
outstanding Term B Loans and debt securities of Crown Holdings and its
Subsidiaries are subject to a fixed interest rate either by their terms or
pursuant to one or more Hedging Agreements having terms and conditions
reasonable satisfactory to the Administrative Agent.
SECTION 5.20. Excluded Companies. Notwithstanding anything to the contrary
------------------
set forth herein, Crown Holdings shall ensure that (a) each Excluded Canadian
Company remains a dormant company and shall remain dormant until such time as it
is dissolved in accordance with the laws of Canada and (b) each Excluded U.K.
Company remains (i) a dormant company and shall remain dormant until such time
as it is dissolved in accordance with the laws of England and Wales or (ii) a
trust company which is involved only in the business of holding assets on behalf
of beneficiaries in a trustee relationship, as applicable, and shall continue to
exist in such dormant state until it is dissolved or act in such capacity and in
no other capacity until such time as all of the Obligations hereunder are
discharged pursuant to this Agreement.
-118-
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees and other amounts payable hereunder or under
any other Loan Document have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, each
Loan Party, jointly and severally, covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) The Loan Parties
---------------------------------------
will not, and will not permit any Subsidiary to, directly or indirectly, create,
incur, assume or permit to exist (including by way of Guarantee) any
Indebtedness, except:
(i) Indebtedness incurred and outstanding under the Loan Documents;
(ii) Indebtedness of the Euro Borrower under (A) the Second Lien
Dollar Notes in an aggregate principal amount not to exceed $1.085 billion
and Guarantees of such Indebtedness by each Subsidiary Loan Party and (B)
the Second Lien Euro Notes in an aggregate principal amount not to exceed
(euro)285 million and Guarantees of such Indebtedness by each Subsidiary
Loan Party;
(iii) Indebtedness of the Euro Borrower under the Third Lien Notes in
an aggregate principal amount not to exceed $725 million and Guarantees of
such Indebtedness by each Subsidiary Loan Party;
(iv) Indebtedness under the Refinanced Public Debt to the extent not
repaid on the Effective Date;
(v) Indebtedness under the Public Debt existing on the Effective Date
(other than the Refinanced Public Debt) and extensions, renewals,
refinancings, refundings and replacements of any such Indebtedness (other
than the Public Debentures) that do not increase the outstanding principal
amount thereof with Refinancing Plan Indebtedness; provided that (w) no
--------
Default or Event of Default shall have occurred or be continuing or would
result therefrom, (x) after giving effect to the incurrence of such
Indebtedness (and any other Indebtedness incurred since the last day of the
immediately preceding Test Period) on a pro forma basis as if it was
incurred on the first day of the immediately preceding Test Period (but
tested as if the applicable ratio were the ratio for the next succeeding
Test Period), the Loan Parties would be in compliance with Sections 6.13
through 6.16, inclusive, (y) such Indebtedness is permitted to be incurred
under the Second Lien Notes Indenture and the Third Lien Notes Indenture
and (z) in case of any Indebtedness incurred by or guaranteed by the Euro
Borrower or under which the Euro Borrower is an obligor, the holders of
such Indebtedness or any trustee or agent on their behalf shall be bound by
and shall execute and deliver counterparts to the Sharing Agreement;
-119-
(vi) Indebtedness under the Existing Non-U.S. Facilities outstanding
or committed on the Effective Date and listed on Schedule 3.21(b) and up to
----------------
the amounts set forth on such Schedule and any extensions, renewals,
refinancings, refundings and replacements thereof incurred by the same
parties and on substantially similar terms that do not increase the amount
outstanding or committed thereunder as of the Effective Date; provided that
--------
(x) no Default or Event of Default shall have occurred or be continuing or
would result therefrom, (y) after giving effect to the incurrence of such
Indebtedness (and any other Indebtedness incurred since the last day of the
immediately preceding Test Period) on a pro forma basis as if it was
incurred on the first day of the immediately preceding Test Period (but
tested as if the applicable ratio were the ratio for the next succeeding
Test Period), the Loan Parties would be in compliance with Sections 6.13
through 6.16, inclusive, and (z) such Indebtedness is permitted to be
incurred under the Second Lien Notes Indenture and the Third Lien Notes
Indenture;
(vii) Indebtedness under the Existing Factoring Facilities outstanding
or committed on the Effective Date and listed on Schedule 3.21(c) and up to
----------------
the amounts set forth on such Schedule and any extensions, renewals,
refinancings, refundings and replacements thereof incurred by the same
parties and on substantially similar terms that do not increase the amount
outstanding or committed thereunder as of the Effective Date; provided that
--------
(x) no Default or Event of Default shall have occurred or be continuing or
would result therefrom, (y) after giving effect to the incurrence of such
Indebtedness (and any other Indebtedness incurred since the last day of the
immediately preceding Test Period) on a pro forma basis as if it was
incurred on the first day of the immediately preceding Test Period (but
tested as if the applicable ratio were the ratio for the next succeeding
Test Period), the Loan Parties would be in compliance with Sections 6.13
through 6.16, inclusive, and (z) such Indebtedness is permitted to be
incurred under the Second Lien Notes Indenture and the Third Lien Notes
Indenture;
(viii) Indebtedness of the Italian Subsidiaries incurred after the
Effective Date in an aggregate principal amount not to exceed (euro)150
million; provided that (x) no Default or Event of Default shall have
--------
occurred or be continuing or would result
-120-
therefrom, (y) after giving effect to the incurrence of such Indebtedness
(and any other Indebtedness incurred since the last day of the immediately
preceding Test Period) on a pro forma basis as if it was incurred on the
first day of the immediately preceding Test Period (but tested as if the
applicable ratio were the ratio for the next succeeding Test Period), the
Loan Parties would be in compliance with Sections 6.13 through 6.16,
inclusive, and (z) such Indebtedness is permitted to be incurred under the
Second Lien Notes Indenture and the Third Lien Notes Indenture; provided,
--------
further, that up to(euro)25.0 million of the Net Proceeds may be used to
-------
repay Indebtedness of the Italian Subsidiaries and the remainder of the Net
Proceeds in an amount not less than(euro)100 million shall be applied to
repay Loans pursuant to Section 2.05(d)(ii);
(ix) Indebtedness of any Non-Subsidiary Loan Parties in an aggregate
principal amount outstanding at any time not to exceed $50.0 million;
provided that (w) no Default or Event of Default shall have occurred or be
--------
continuing or would result therefrom, (x) after giving effect to the
incurrence of such Indebtedness (and any other Indebtedness incurred since
the last day of the immediately preceding Test Period) on a pro forma basis
as if it was incurred on the first day of the immediately preceding Test
Period (but tested as if the applicable ratio were the ratio for the next
succeeding Test Period), the Loan Parties shall be in compliance with
Sections 6.13 through 6.16, inclusive, (y) such Indebtedness is permitted
to be incurred under the Second Lien Notes Indenture and the Third Lien
Notes Indenture and (z) Section 2.11(d) is complied with; provided,
--------
further, that such amount shall be increased to $75.0 million after the
-------
Leverage Condition has been satisfied;
(x) (a) Indebtedness of the U.S. Borrower or the Euro Borrower to any
Subsidiary Loan Party and of any Subsidiary Loan Party to the U.S. Borrower
or the Euro Borrower or any other Subsidiary Loan Party; and (b)
Indebtedness of any Non-Subsidiary Loan Party owed to another
Non-Subsidiary Loan Party;
(xi) subject to Section 6.04(iv), Indebtedness of any Non-U.S.
Subsidiary that is not a Subsidiary Loan Party owed to any Borrower or any
Subsidiary Loan Party; provided that (A) to the extent practicable and
--------
required by the Administrative Agent, (i) such Indebtedness is evidenced by
an intercompany note; and (ii) the Euro Collateral Agent has a first
priority perfected security interest in such intercompany note; and (B) no
Default or Event of Default has occurred and is continuing at the time of
the incurrence of such Indebtedness or would result therefrom;
(xii) Indebtedness incurred pursuant to any Permitted Receivables
Financing;
(xiii) the incurrence by Crown Holdings or any of its Subsidiaries of
Hedging Agreements that are incurred in the ordinary course of business for
the purpose of fixing or hedging
-121-
(A) interest rate risk so long as such Indebtedness is permitted by the
terms of this Agreement to be outstanding, (B) commodity price risk with
respect to any commodity regularly purchased by Crown Holdings or its
Subsidiaries or (C) exchange rate risk with respect to agreements or
Indebtedness of such Person payable or denominated in a currency other than
Dollars and, in each case, not for speculative purposes; provided, that, in
--------
any such case, the liabilities under such Hedging Agreements which do not
represent an actual obligation and for which an offsetting derivative
contract has been recorded in the financial statements are recorded in
accordance with SFAS 133;
(xiv) Indebtedness of the U.S. Borrower or the Euro Borrower or any of
their Subsidiaries incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the acquisition
of any such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
or result in an earlier maturity date or decreased weighted average life
thereof; provided that (A) such Indebtedness is incurred prior to or within
--------
90 days after such acquisition or the completion of such construction or
improvement and (B) the aggregate principal amount of Indebtedness
permitted by this clause (xiv) shall not exceed $35.0 million at any time
outstanding;
(xv) Indebtedness owed to (including obligations in respect of letters
of credit for the benefit of) any Person providing worker's compensation,
health, disability or other employee benefits or property, casualty or
liability insurance to Crown Holdings or any of its Subsidiaries, pursuant
to reimbursement or indemnification obligations to such Person;
(xvi) Indebtedness of Crown Holdings or its Subsidiaries in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, in each case provided in
the ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business;
(xvii) Indebtedness arising from agreements of Crown Holdings or any
of its Subsidiaries providing for indemnification, adjustment of purchase
price or similar obligations, in each case, incurred or assumed in
connection with the disposition of any business, assets or a Subsidiary,
other than Guarantees of Indebtedness incurred by any Person acquiring all
or any portion of such business, assets or a Subsidiary for the purpose of
financing such acquisition;
-122-
(xviii) obligations in respect of performance and surety bonds and
completion guarantees provided by Crown Holdings and its Subsidiaries in
the ordinary course of business;
(xix) Indebtedness of Crown Holdings or any of its Subsidiaries
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is
-------------------
extinguished within five Business Days of incurrence;
(xx) Permitted Public Refinancing Debt that was incurred to refinance
or replace the Public Debentures; provided, that the Refinanced Public Debt
--------
and Retained Public Debt have been repaid or refinanced in full prior to
any such refinancing or replacement of the Public Debentures; provided that
--------
(w) no Default or Event of Default shall have occurred or be continuing or
would result therefrom, (x) after giving effect to the incurrence of such
Indebtedness (and any other Indebtedness incurred since the last day of the
immediately preceding Test Period) on a pro forma basis as if it was
incurred on the first day of the immediately preceding Test Period (but
tested as if the applicable ratio were the ratio for the next succeeding
Test Period), the Loan Parties would be in compliance with Sections 6.13
through 6.16, inclusive, (y) such Indebtedness is permitted to be incurred
under the Second Lien Notes Indenture and the Third Lien Notes Indenture
and (z) in case of any Indebtedness incurred by or guaranteed by the Euro
Borrower or under which the Euro Borrower is an obligor, the holders of
such Indebtedness or any trustee or agent on their behalf shall be bound by
and shall execute and deliver counterparts to the Sharing Agreement;
(xxi) reimbursement obligations under the Existing Credit Agreement
(as in effect on the Effective Date after giving effect to the
Transactions) with respect to letters of credit issued thereunder and
outstanding as of the Effective Date only for so long as such letters of
credit remain outstanding; and
(xxii) other Indebtedness of Crown Holdings or any of its Subsidiaries
in an aggregate principal amount not exceeding $35.0 million at any time
outstanding; provided that such Indebtedness does not have the benefit of
any Liens on assets of Crown Holdings or its Subsidiaries;
provided, however, that Crown Developpement SNC shall not be permitted to
incur any Indebtedness other than Indebtedness incurred under Section
6.01(a)(i), (ii), (iii) or (vi).
The maximum amount of Indebtedness that Crown Holdings or any Subsidiary
may incur pursuant to this Section 6.01 shall not be deemed to be exceeded
solely as the result of fluctuations in the exchange rates of currencies.
-123-
(b) The Loan Parties will not, nor will they permit any of their
Subsidiaries to, directly or indirectly, issue any preferred stock or other
preferred Equity Interest which (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise prior to one year after the
Term B Loan Maturity Date, (ii) is or may become redeemable or repurchasable at
the option of the holder thereof, in whole or in part, prior to one year after
the Term B Loan Maturity Date, or (iii) is convertible or exchangeable at the
option of the holder thereof for Indebtedness or preferred stock or any other
preferred Equity Interest described in this paragraph prior to one year after
the Term B Loan Maturity Date.
SECTION 6.02. Liens. The Loan Parties will not, and will not permit any of
-----
their Subsidiaries to, directly or indirectly, create, incur, assume or permit
to exist any Lien on any property or asset now owned or hereafter acquired by
it, or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except the following (herein collectively
referred to as "Permitted Liens"):
---------------
(i) Liens in favor of the Collateral Agents under the Security
Documents securing the Obligations and the Bank Related Debt;
(ii) Liens in favor of the Collateral Agents under the Security
Documents securing the Second Lien Notes permitted to be incurred under
Section 6.01(a)(ii); provided that the trustee under the Second Lien Notes
--------
Indenture shall be bound by and execute and deliver to the Collateral
Agents counterparts to each of the Intercreditor Agreements and the Sharing
Agreement;
(iii) Liens in favor of the Collateral Agents under the Security
Documents securing the Third Lien Notes permitted to be incurred under
Section 6.01(a)(iii); provided that the trustee under the Third Lien Notes
--------
Indenture shall be bound by and execute and deliver to the Collateral
Agents counterparts to each of the Intercreditor Agreements and the Sharing
Agreement;
(iv) Liens in favor of the Collateral Agents under the Security
Documents securing Indebtedness described under clause (ii) of the
definition of "Refinancing Plan Indebtedness" permitted to be incurred
under Section 6.01(a)(v); provided that if such Indebtedness is Additional
--------
Second Lien Notes and/or Additional Third Lien Notes, such Indebtedness
constitutes "Second Priority Indebtedness" or "Third Priority
Indebtedness", as applicable, under the Intercreditor Agreements and the
Sharing Agreement and the trustee or agent representing such Additional
Second Lien Notes and/or Additional Third Lien Notes shall be bound by and
execute and deliver to the Collateral Agents counterparts to each of the
Intercreditor Agreements and the Sharing Agreement;
(v) Liens on assets acquired after the Effective Date existing at the
time of acquisition thereof by any Loan Party; provided that such Liens
--------
were not incurred in connection with, or in contemplation of, such
acquisition and do not extend to any assets of such Loan Party other than
the specific assets so acquired;
-124-
(vi) Liens to secure the performance of statutory obligations, surety
or appeal bonds or performance bonds, landlords', carriers',
warehousemen's, mechanics', suppliers', materialmen's, attorney's or other
like liens, in any case incurred in the ordinary course of business and
with respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings promptly instituted and diligently conducted;
provided that (A) a reserve or other appropriate provision, if any, as is
--------
required by GAAP shall have been made therefor, (B) if such Lien is on
Collateral, the Contested Collateral Lien Conditions shall at all times be
satisfied and (C) such Liens relating to statutory obligations, surety or
appeal bonds or performance bonds shall only extend to or cover cash and
Permitted Investments not in the Collateral Accounts;
(vii) Liens existing on the Effective Date and listed on Schedule
6.02(vii);
(viii) Liens for taxes, assessments or governmental charges or claims
or other like statutory Liens, in any case incurred in the ordinary course
of business, that do not secure Indebtedness for borrowed money and (A)
that are not yet delinquent or (B) that are being contested in good faith
by appropriate proceedings promptly instituted and diligently concluded;
provided that (1) any reserve or other appropriate provision as shall be
--------
required in conformity with GAAP shall have been made therefor and (2) if
such Lien is on Collateral, the Contested Collateral Lien Conditions shall
at all times be satisfied;
(ix) Liens on Italian Assets to secure Indebtedness permitted to be
incurred under Section 6.01(a)(viii);
(x) Liens to secure Indebtedness (including Capital Lease Obligations)
of the type described in Section 6.01(a)(xiv) hereof covering only the
assets acquired with such Indebtedness;
(xi) Liens on the assets of a Non-Subsidiary Loan Party so long as
such assets are not otherwise Collateral which Liens secure such
Non-Subsidiary Loan Party's obligations under Indebtedness incurred
pursuant to Section 6.01(a)(ix);
(xii) Liens securing Indebtedness incurred to refinance Indebtedness
secured by the Liens of the type described in clause (vii) of this
definition; provided that any such Lien shall not extend to or cover any
--------
assets not securing the Indebtedness so refinanced;
(xiii) Liens (A) in the form of zoning restrictions, easements,
licenses, reservations, covenants, conditions or other restrictions on the
use of real property or other minor irregularities in title
-125-
(including leasehold title) that do not (1) secure Indebtedness or (2)
individually or in the aggregate materially impair the value or
marketability of the real property affected thereby or the occupation, use
and enjoyment in the ordinary course of business of the Loan Parties and
their Subsidiaries at such real property and (B) with respect to leasehold
interests in real property, mortgages, obligations, liens and other
encumbrances incurred, created, assumed or permitted to exist and arising
by, through or under a landlord or owner of such leased property
encumbering the landlord's or owner's interest in such leased property;
(xiv) Liens in the form of pledges or deposits securing bids, tenders,
contracts (other than contracts for the payment of money) or leases to
which any Loan Party or any Subsidiary is a party, in each case, made in
the ordinary course of business for amounts (A) not yet due and payable or
(B) being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; provided that (1) a reserve or other
--------
appropriate provision, if any, as is required by GAAP shall have been made
therefor, (2) if such Lien is on Collateral, the Contested Collateral Lien
Conditions shall at all times be satisfied and (3) such Liens shall in no
event encumber any Collateral other than cash and Permitted Investments not
in the Collateral Accounts;
(xv) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute a Default under this Agreement; provided
--------
that any such Liens in an amount in excess of $10.0 million on Mortgaged
Property shall be paid, discharged, bonded or stayed prior to the sale or
forfeiture of any portion of such Collateral on account of such Liens;
(xvi) Liens in the form of licenses, leases or subleases granted or
created by any Loan Party or any Subsidiary, which licenses, leases or
subleases (A) do not interfere, individually or in the aggregate, in any
material respect with the business of the Loan Parties and their
Subsidiaries or individually or in the aggregate materially impair the use
(for its intended purpose) or the value of the property subject thereto;
provided that (x) to the extent such licenses, leases or subleases relate
--------
to Mortgaged Property in existence as of the date hereof, such Subsidiary
shall use its commercially reasonable efforts to as soon as practicable
cause such licenses, leases or subleases to be subordinate to the Lien
granted and evidenced by the Security Documents in accordance with the
provisions thereof; and (y) to the extent entered into after the date
hereof, such licenses, leases or subleases shall be subordinate to the Lien
granted and evidenced by the Security Documents in accordance with the
provisions thereof; provided, further, that any such Lien shall not extend
------------------
to or cover any assets of any Loan Party or any Subsidiary that is not the
subject of any such license, lease or sublease;
-126-
(xvii) Liens on fixtures or personal property held by or granted to
landlords pursuant to leases to the extent that such Liens are not yet due
and payable; provided that (i) with respect to any such Liens in existence
--------
on the date hereof, the applicable Loan Party or any applicable Subsidiary
has used its commercially reasonable efforts to obtain a landlord lien
waiver reasonably satisfactory to the U.S. Collateral Agent and (ii) with
respect to any leases entered into after the date hereof, the applicable
Loan Party or any applicable Subsidiary shall use its commercially
reasonable efforts to (x) enter into a lease that does not xxxxx x Xxxx on
fixtures or personal property in favor of the landlord thereunder or (y)
obtain a landlord lien waiver reasonably satisfactory to the U.S.
Collateral Agent;
(xviii) pledges and deposits made in the ordinary course of business
in compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements; and
(xix) additional Liens so long as, without duplication, the value of
the property subject to such Liens at the time such Lien is incurred and
the Indebtedness (including any refinancings of such Indebtedness) and
other obligations secured thereby do not exceed $35.0 million in the
aggregate at any time;
provided, however, that (A) no Liens (other than pursuant to the Loan Documents)
-----------------
shall be permitted to exist, directly or indirectly, on any Pledged Securities
and (B) no such Liens (other than Liens under clauses (i), (ii), (iii), (iv),
(viii), (xiii), (xv) and (xvi)) shall extend to any Principal Property or
Restricted Securities.
SECTION 6.03. Fundamental Changes. (a) The Loan Parties will not, and will
-------------------
not permit any of their Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately
after giving effect thereto no Default or Event of Default shall have occurred
and be continuing, (i) any Wholly Owned Subsidiary of the U.S. Borrower may
merge into the U.S. Borrower in a transaction in which the U.S. Borrower is the
surviving corporation, (ii) any Wholly Owned Subsidiary of the Euro Borrower may
merge into the Euro Borrower in a transaction in which the Euro Borrower is the
surviving corporation, (iii) any Wholly Owned Subsidiary of the U.S. Borrower
may merge with or into any Subsidiary of the U.S. Borrower in a transaction in
which the surviving entity is a Wholly Owned Subsidiary of the U.S. Borrower and
(if any party to such merger is a Subsidiary Loan Party) is a Subsidiary Loan
Party, (iv) any Wholly Owned Subsidiary of the Euro Borrower may merge with or
into any Subsidiary of the Euro Borrower in a transaction in which the surviving
entity is a Wholly Owned Subsidiary of the Euro Borrower and (if any party to
such merger is a Subsidiary Loan Party) is a Subsidiary Loan Party and (v) the
European Delaware LLCs may transfer all of the Equity Interests owned by them to
their direct parent companies and liquidate so long as such parent companies
-127-
have pledged such Equity Interests to secure the Euro Obligations pursuant to
one or more Euro Security Documents in form and substance reasonably
satisfactory to the Administrative Agent; provided that in connection with the
--------
foregoing, the appropriate Loan Parties shall take all actions necessary or
reasonably requested by the U.S. Collateral Agent or the U.K. Administrative
Agent to maintain the perfection of or perfect, as the case may be, protect and
preserve the Liens on the Collateral granted to the U.S. Collateral Agent or the
Euro Collateral Agent pursuant to the Security Documents and otherwise comply
with the provisions of Sections 5.11 and 5.12, in each case, on the terms set
forth therein and to the extent applicable.
(b) Notwithstanding the foregoing, any Subsidiary of the U.S. Borrower or
the Euro Borrower may dispose of any or all of its assets (upon voluntary
liquidation or otherwise) to the U.S. Borrower or the Euro Borrower or any
Subsidiary Loan Party (provided that, in connection with the foregoing, the
--------
appropriate Loan Parties shall take all actions necessary or reasonably
requested by the Collateral Agents to maintain the perfection of or perfect, as
the case may be, protect and preserve the Liens on the Collateral granted to the
Collateral Agents pursuant to the Security Documents and otherwise comply with
the provisions of Sections 5.11 and 5.12, in each case, on the terms set forth
therein and to the extent applicable), and any Subsidiary which is not a
Subsidiary Loan Party may dispose of assets to any other Subsidiary which is not
a Subsidiary Loan Party.
(c) The Loan Parties will not, and will not permit any of their
Subsidiaries to, directly or indirectly, engage in any business other than
businesses of the type conducted by Crown Holdings and its Subsidiaries on the
Effective Date and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
-----------------------------------------------------------
The Loan Parties will not, and will not permit any of their Subsidiaries to,
directly or indirectly, purchase, hold or acquire (including pursuant to any
merger with any Person that was not a Wholly Owned Subsidiary prior to such
merger) any Equity Interests in or evidences of Indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit
(each of the foregoing, an "Investment" and collectively, "Investments"),
---------- -----------
except:
(i) Permitted Investments;
(ii) Investments existing on the date hereof and set forth on Schedule
--------
6.04;
----
(iii) Investments by or among the Parent Guarantors (subject to
Section 6.16), the Borrowers and the Subsidiary Loan Parties in Subsidiary
Loan Parties; provided that any such Investment held by a Loan Party shall
--------
be pledged pursuant to the applicable Security Document;
-128-
(iv) Investments by the Borrowers and their Subsidiaries in
Non-Subsidiary Loan Parties; provided that such Investments are made in the
--------
ordinary course of business and in an aggregate amount not to exceed $40.0
million at any time outstanding prior to satisfaction of the Leverage
Condition and $75.0 million thereafter;
(v) Investments constituting Indebtedness permitted by Section
6.01(a)(x), (xi) or (xiii);
(vi) Guarantees of Indebtedness permitted by Section 6.01(a)(i), (ii),
(iii), (v), (xiii), (xiv), (xv), (xvi), (xvii), (xviii), (xx) or (xxii);
(vii) Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(viii) loans and advances to employees of Crown Holdings or its
Subsidiaries in the ordinary course of business (including, without
limitation, for travel, entertainment and relocation expenses);
(ix) Investments to the extent that the consideration paid by Crown
Holdings and its Subsidiaries is common stock of Crown Holdings; and
(x) other loans, advances and Investments (including, without
limitation, in joint ventures) not in excess of $50.0 million at any time
outstanding prior to satisfaction of the Leverage Condition and $75.0
million thereafter (without giving effect to write-downs, but after giving
effect to loans, advances or Investments returned in cash).
SECTION 6.05. Asset Sales. The Loan Parties will not, and will not permit
-----------
any of their Subsidiaries to, directly or indirectly, sell, transfer, lease or
otherwise dispose of any asset, including any Equity Interest owned by it, nor
will Crown Holdings permit any Subsidiary to, directly or indirectly, issue any
additional Equity Interest in such Subsidiary, except:
(i) sales of inventory or obsolete, damaged or worn out equipment and
other property no longer used or useful, in each case, in the ordinary
course of business;
(ii) sales, transfers and dispositions and issuances to the Borrowers
or any Subsidiary Loan Party; provided that in connection with the
--------
-129-
foregoing, the appropriate Loan Parties shall take all actions necessary or
reasonably requested by the U.S. Collateral Agent or the U.K.
Administrative Agent, as applicable, to maintain the perfection of or
perfect, as the case may be, protect and preserve the Liens on the
Collateral granted to the U.S. Collateral Agent or the Euro Collateral
Agent, as applicable, pursuant to the Security Documents and otherwise
comply with the provisions of Sections 5.11 and 5.12, in each case, on the
terms set forth therein and to the extent applicable;
(iii) sales of Permitted Investments;
(iv) sales and other dispositions of accounts receivable pursuant to
any Permitted Receivables Financing or Existing Factoring Facilities;
(v) the lease or sublease of Real Property in the ordinary course of
business not constituting a sale and leaseback transaction;
(vi) any sale, transfer or disposition of any (a) business or
controlling or majority equity interest in any Person engaged in a line of
business, (b) Minority Interest or (c) property or assets and, in each such
case, the replacement thereof with a similar business, Equity Interest,
Minority Equity Interest or property or assets, as applicable, used or
useful in a line of business in which Crown Holdings or any of its
Subsidiaries is engaged or which are complementary, reasonably related,
ancillary or useful to such line of business in which Crown Holdings or any
of its Subsidiaries is then engaged, the aggregate fair market value of
which (calculated, in each case, as of the date of such sale, transfer or
disposition) shall not exceed $25.0 million since the Effective Date;
(vii) sales or transfers of Crown Holdings' Equity Interest in Constar
International Inc. held as of the Effective Date; provided that the Net
--------
Proceeds thereof are applied as required by Section 2.05(d)(iii);
(viii) sales or transfers identified in Schedule 6.05(viii); provided
------------------- --------
that the Net Proceeds thereof are applied as required by Section
2.05(d)(iii); and
(ix) sales, transfers and dispositions of assets not otherwise
permitted under this Section; provided that the aggregate fair market value
--------
of all assets sold, transferred or otherwise disposed of in reliance upon
this clause (ix) shall not, in the aggregate, exceed $75.0 million during
any Fiscal Year and $125.0 million in the aggregate and the Net Proceeds
thereof are applied as required by Section 2.05(d)(iii);
provided that all sales, transfers, leases and other dispositions permitted
--------
hereby shall be made for fair value and for at least 80% cash consideration
(other than sales, transfers and dispositions permitted by Section 6.05(vi) or
(viii)).
-130-
SECTION 6.06. Sale and Leaseback Transactions. The Loan Parties will not,
--------------------------------
and will not permit any of their Subsidiaries to, directly or indirectly, enter
into any arrangement, directly or indirectly, whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.
SECTION 6.07. Sale or Discount of Receivables. The Loan Parties will not,
--------------------------------
and will not permit any of their Subsidiaries to, directly or indirectly, sell,
with or without recourse, or discount (other than in connection with trade
discounts in the ordinary course of business consistent with past practice) or
otherwise sell or transfer for less than the face value thereof, notes or
accounts receivable, other than a Permitted Receivables Financing and the
Existing Factoring Facilities and any refinancing or extension thereof otherwise
permitted by this Agreement.
SECTION 6.08. Restricted Payments. The Loan Parties will not, and will not
-------------------
permit any of their Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, or incur any obligation
(contingent or otherwise) to do so, except:
(i) Subsidiaries may declare and pay dividends ratably with respect to
their Equity Interests; and
(ii) Crown Holdings may make dividends consisting solely of shares of
its common stock.
SECTION 6.09. Transactions with Affiliates. The Loan Parties will not, and
----------------------------
will not permit any of their Subsidiaries to, directly or indirectly, sell,
lease or otherwise transfer any property or assets to, or purchase, lease or
otherwise acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except:
(i) (A) transactions that are at prices and on terms and conditions
not less favorable to the applicable Loan Party or such Subsidiary than
could be obtained on an arm's-length basis from unrelated third parties,
(B) in the event that such transaction involves aggregate payments or
transfers of property or services with a fair market value in excess of
$10.0 million, the terms of such transaction shall be approved by a
majority of Crown Holdings' board of directors (including a majority of the
disinterested members thereof), the approval of which is evidenced by a
board resolution stating that the board of directors has determined that
such transaction complies with these provisions, and (C) except with
respect to transactions between or among Crown Holdings or any
Subsidiar(ies), in the event that such transaction involves aggregate
payments or transfers of property or services with a fair market value in
excess of $50.0 million, Crown Holdings shall, prior to the consummation
thereof, obtain a favorable opinion as to the fairness of such transaction
to the relevant Loan Party (if any) from a financial point of view from an
independent financial advisor and provide the same to the Administrative
Agent;
(ii) transactions between or among the Loan Parties not involving any
other Affiliate and transactions among Subsidiaries not involving any Loan
Party;
(iii) reasonable fees, compensation, benefits and incentive
arrangements paid or provided to, and any indemnity provided on behalf of,
officers, directors or employees of Crown Holdings or any Subsidiary as
determined in good faith by Crown Holdings' board of directors;
(iv) any Restricted Payment permitted by Section 6.08;
(v) loans and advances to employees of the Borrowers or any Subsidiary
permitted by Section 6.04(viii);
(vi) any agreement as in effect as of the Effective Date and set forth
on Schedule 6.09(vi) or any amendment thereto or any transaction
-------------------
contemplated thereby (including pursuant to any amendment thereto) in any
replacement agreement thereto so long as any such amendment or replacement
agreement is not materially more disadvantageous to the Lenders, taken as a
whole, than the original agreement as in effect on the Effective Date;
(vii) sales or issuances of common stock or Equity Rights in respect
of common stock of Crown Holdings; and
(viii) any transaction undertaken pursuant to the Constar Agreements,
including any amendment thereto or replacement thereof so long as any such
amendment or replacement agreement is not materially more disadvantageous
to the Lenders, taken as a whole, than the original Constar Agreements so
amended or replaced.
SECTION 6.10. Restrictive Agreements. The Loan Parties will not, and will
-----------------------
not permit any of their Subsidiaries to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of Crown Holdings or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property
or assets, or (b) the ability of any Subsidiary (i) to pay dividends or other
distributions with respect to any of its Equity Interests or (ii) to make or
repay loans or advances to Crown Holdings or any other Subsidiary or to
Guarantee Indebtedness of Crown Holdings or any other Subsidiary or (iii) to
transfer property to Crown Holdings or any of its Subsidiaries; provided that
the foregoing shall not apply to:
(i) conditions imposed by law or by any Loan Document;
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(ii) restrictions and conditions imposed by the Second Lien Notes
Indenture and the Third Lien Notes Indenture as in effect on the Effective
Date;
(iii) restrictions and conditions imposed by any Refinancing Plan
Indebtedness; provided that the encumbrances and restrictions contained in
--------
such Indebtedness are no more restrictive in any material respect, taken as
a whole, than those contained in the Second Lien Notes Indenture, with
respect to Additional Second Lien Notes, or in the Third Lien Notes
Indenture, for any other Refinancing Plan Indebtedness as in effect on the
Effective Date;
(iv) with respect to clause (b)(iii) only, assets encumbered by
Permitted Liens as long as such restriction applies only to the asset
encumbered by such Permitted Lien;
(v) restrictions and conditions existing on the date hereof not
otherwise excepted from this Section 6.10 identified on Schedule 6.10 and
-------------
refinancings thereof with restrictions and conditions no more restrictive,
in any material respect, taken as a whole, than those in such Indebtedness
on the Effective Date;
(vi) customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary (or the assets of a Subsidiary)
pending such sale, provided such restrictions and conditions apply only to
--------
the Subsidiary that is to be sold (or whose assets are to be sold) and such
sale is permitted hereunder;
(vii) with respect to clause (a) only, customary provisions in leases
and other contracts restricting the assignment thereof; and
(viii) restrictions contained in Indebtedness of Non-Subsidiary Loan
Parties incurred pursuant to Section 6.01(a)(viii) or (a)(ix); provided
--------
that the board of directors of Crown Holdings shall have determined in good
faith (as evidenced by a resolution of the Board of Directors) at the time
that such encumbrance or restriction is created that such encumbrance or
restriction, as the case may be, will not impair the ability of any
Borrower to make scheduled payments of interest and principal on the Loans
in each case as and when due.
SECTION 6.11. Amendments or Waivers of Certain Documents; Prepayments of
------------------------------------------------------------
Indebtedness. (a) The Loan Parties will not, and will not permit any of their
------------
Subsidiaries to, directly or indirectly, amend or otherwise change (or waive)
the terms of its Organic Documents, the Second Lien Notes, the Second Lien Notes
Indenture, the Third Lien Notes, the Third Lien Notes Indenture, the documents
governing any Public Debt or Refinancing Plan Indebtedness, the documents
governing any Permitted Receivables Financing, Existing Non-U.S. Facilities and
Existing Factoring Facilities or the documents governing any other Indebtedness
outstanding as of the date hereof or any refinancing thereof, in each case,
-133-
if the effect of such amendment, change or waiver would be to (i) cause all or
any portion of the principal amount of any Indebtedness under such document to
be payable, or to cause any redemption of any Equity Interest under such
document, earlier than scheduled at the date hereof, except to the extent such
prepayment or redemption would be permitted by Section 6.11(b) below without
giving effect to such amendment, modification or waiver, (ii) increase the
interest rate payable on such Indebtedness or increase the rate of dividends
payable on such Equity Interest, or (iii) make the covenants, redemption
provisions, mandatory prepayment provisions or events of default contained in
such document more burdensome in any material respect to the Loan Parties, taken
as a whole; provided, that the entering into of any refinancing otherwise
--------
permitted under this Agreement shall not be prohibited by this Section 6.11(a).
(b) The Loan Parties will not, and will not permit any of their
Subsidiaries to, make (or give any notice or offer in respect of) any voluntary
or optional payment or mandatory prepayment or redemption or acquisition for
value of (including, without limitation, by way of depositing with any trustee
with respect thereto money or securities before such Indebtedness is due for the
purpose of paying such Indebtedness when due) or exchange of principal of any
Indebtedness of the type referred to in Section 6.01(a)(ii), (iii) or (v) (other
than Retained Public Debt and Refinanced Public Debt); provided that this
--------
provision shall not prohibit Crown Holdings from exchanging its Public Debt
(other than the Public Debentures) for shares of its common stock and shall not
prohibit Crown Holdings from exchanging the Public Debentures for shares of its
common stock after the Refinanced Public Debt and the Retained Public Debt have
been repaid in full.
(c) The Loan Parties will not permit any Intercompany Borrower to repay or
prepay or forgive any principal of any Intercompany Loan (other than the French
Ongoing Loans) set forth on Schedule 4.01(k) prior to the Term B Loan Maturity
-----------------
Date; provided that Intercompany Loans (other than the French Ongoing Loans) may
--------
amortize on the Installment Payment Dates in amounts no greater than in the
aggregate the amortization of the Term B Loans on such dates pursuant to Section
2.05(e). The Loan Parties will not permit any Intercompany Borrower to repay or
prepay or forgive any principal of the French Ongoing Loans unless an equal
principal amount of the Revolving Euro Loans is immediately repaid.
SECTION 6.12. Limitations on Premiums. Other than any redemption premium
-----------------------
required to be paid under the Refinanced Public Debt or any Retained Public Debt
as in effect on the Effective Date to the extent redeemed prior to final
maturity, Crown Holdings will not, and will not permit any Subsidiary to, pay
premiums, fees and expenses in connection with the purchase, repayment,
repurchase, redemption or defeasance of Refinanced Public Debt and Retained
Public Debt in excess of a material amount.
-134-
SECTION 6.13. Interest Expense Coverage Ratio. Each Loan Party will not
---------------------------------
permit or suffer to exist the Interest Expense Coverage Ratio for any Test
Period set forth below to be less than the ratio set forth below opposite such
period:
--------------------------------------------------------------------------------
Test Period Ratio
----------- -----
--------------------------------------------------------------------------------
June 30, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
December 31, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2004 1.85 to 1.0
--------------------------------------------------------------------------------
June 30, 2004 1.85 to 1.0
--------------------------------------------------------------------------------
September 30, 2004 1.85 to 1.0
--------------------------------------------------------------------------------
December 31, 2004 1.85 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2005 2.00 to 1.0
--------------------------------------------------------------------------------
June 30, 2005 2.00 to 1.0
--------------------------------------------------------------------------------
September 30, 2005 2.00 to 1.0
--------------------------------------------------------------------------------
December 31, 2005 2.00 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2006 2.10 to 1.0
--------------------------------------------------------------------------------
June 30, 2006 2.10 to 1.0
--------------------------------------------------------------------------------
September 30, 2006 2.10 to 1.0
--------------------------------------------------------------------------------
December 31, 2006 2.10 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2007 2.25 to 1.0
--------------------------------------------------------------------------------
June 30, 2007 2.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2007 2.25 to 1.0
--------------------------------------------------------------------------------
December 31, 2007 2.25 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2008 2.35 to 1.0
--------------------------------------------------------------------------------
June 30, 2008 2.35 to 1.0
--------------------------------------------------------------------------------
September 30, 2008 2.35 to 1.0
--------------------------------------------------------------------------------
SECTION 6.14. Total Leverage Ratio. Each Loan Party will not permit or
----------------------
suffer to exist the Total Leverage Ratio for any Test Period set forth below to
exceed the ratio set forth opposite such period:
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--------------------------------------------------------------------------------
Test Period Ratio
----------- -----
--------------------------------------------------------------------------------
June 30, 2003 6.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2003 6.25 to 1.0
--------------------------------------------------------------------------------
December 31, 2003 6.25 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2004 6.25 to 1.0
--------------------------------------------------------------------------------
June 30, 2004 6.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2004 6.00 to 1.0
--------------------------------------------------------------------------------
December 31, 2004 5.75 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2005 5.75 to 1.0
--------------------------------------------------------------------------------
June 30, 2005 5.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2005 5.50 to 1.0
--------------------------------------------------------------------------------
December 31, 2005 5.25 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2006 5.25 to 1.0
--------------------------------------------------------------------------------
June 30, 2006 5.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2006 4.75 to 1.0
--------------------------------------------------------------------------------
December 31, 2006 4.75 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2007 4.75 to 1.0
--------------------------------------------------------------------------------
June 30, 2007 4.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2007 4.50 to 1.0
--------------------------------------------------------------------------------
December 31, 2007 4.25 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2008 4.25 to 1.0
--------------------------------------------------------------------------------
June 30, 2008 4.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2008 4.00 to 1.0
--------------------------------------------------------------------------------
SECTION 6.15. First Lien Leverage Ratio. Each Loan Party will not permit or
-------------------------
suffer to exist the First Lien Leverage Ratio for any Test Period set forth
below to exceed the ratio set forth opposite such period:
--------------------------------------------------------------------------------
Test Period Ratio
----------- -----
--------------------------------------------------------------------------------
June 30, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
December 31, 2003 1.75 to 1.0
--------------------------------------------------------------------------------
-136-
--------------------------------------------------------------------------------
March 31, 2004 1.75 to 1.0
--------------------------------------------------------------------------------
June 30, 2004 1.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2004 1.75 to 1.0
--------------------------------------------------------------------------------
December 31, 2004 1.50 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2005 1.50 to 1.0
--------------------------------------------------------------------------------
June 30, 2005 1.50 to 1.0
--------------------------------------------------------------------------------
September 30, 2005 1.50 to 1.0
--------------------------------------------------------------------------------
December 31, 2005 1.25 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2006 1.25 to 1.0
--------------------------------------------------------------------------------
June 30, 2006 1.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2006 1.25 to 1.0
--------------------------------------------------------------------------------
December 31, 2006 1.00 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2007 1.00 to 1.0
--------------------------------------------------------------------------------
June 30, 2007 1.00 to 1.0
--------------------------------------------------------------------------------
September 30, 2007 1.00 to 1.0
--------------------------------------------------------------------------------
December 31, 2007 0.75 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2008 0.75 to 1.0
--------------------------------------------------------------------------------
June 30, 2008 0.75 to 1.0
--------------------------------------------------------------------------------
September 30, 2008 0.75 to 1.0
--------------------------------------------------------------------------------
SECTION 6.16. Fixed Charge Coverage Ratio; Cash Flow Ratios. (a) Each Loan
----------------------------------------------
Party will not permit or suffer to exist the Consolidated Fixed Charge Coverage
Ratio for any Test Period set forth below to be less than the ratio set forth
opposite such period:
--------------------------------------------------------------------------------
Test Period Ratio
----------- -----
--------------------------------------------------------------------------------
June 30, 2003 1.15 to 1.0
--------------------------------------------------------------------------------
September 30, 2003 1.15 to 1.0
--------------------------------------------------------------------------------
December 31, 2003 1.15 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2004 1.15 to 1.0
--------------------------------------------------------------------------------
June 30, 2004 1.15 to 1.0
--------------------------------------------------------------------------------
September 30, 2004 1.15 to 1.0
--------------------------------------------------------------------------------
December 31, 2004 1.20 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2005 1.25 to 1.0
--------------------------------------------------------------------------------
-137-
--------------------------------------------------------------------------------
June 30, 2005 1.25 to 1.0
--------------------------------------------------------------------------------
September 30, 2005 1.25 to 1.0
--------------------------------------------------------------------------------
December 31, 2005 1.35 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2006 1.40 to 1.0
--------------------------------------------------------------------------------
June 30, 2006 1.40 to 1.0
--------------------------------------------------------------------------------
September 30, 2006 1.40 to 1.0
--------------------------------------------------------------------------------
December 31, 2006 1.50 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2007 1.50 to 1.0
--------------------------------------------------------------------------------
June 30, 2007 1.50 to 1.0
--------------------------------------------------------------------------------
September 30, 2007 1.50 to 1.0
--------------------------------------------------------------------------------
December 31, 2007 1.60 to 1.0
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
March 31, 2008 1.60 to 1.0
--------------------------------------------------------------------------------
June 30, 2008 1.60 to 1.0
--------------------------------------------------------------------------------
September 30, 2008 1.80 to 1.0
--------------------------------------------------------------------------------
(b) Each Loan Party will not permit or suffer to exist the U.S. Borrower
Cash Flow Ratio for each Test Period ending as of the end of each Fiscal Quarter
after the Fiscal Quarter ending March 31, 2003 to be less than 1:1.
(c) Each Loan Party will not permit or suffer to exist the Euro Borrower
Cash Flow Ratio for each Test Period ending as of the end of each Fiscal Quarter
after the Fiscal Quarter ending March 31, 2003 to be less than 1:1.
SECTION 6.17. Capital Expenditures. Each Loan Party will not, and will not
--------------------
permit or suffer to exist any of its Subsidiaries to make any Capital
Expenditures, except that Crown Holdings and its Subsidiaries may make Capital
Expenditures not exceeding $145.0 million (the "Base Amount") in each Fiscal
------------
Year of Crown Holdings beginning with December 31, 2003; provided that for any
period set forth above, the Base Amount set forth above may be increased by a
maximum of 50% of the Base Amount for any such period by carrying over to any
such period any portion of the Base Amount (without giving effect to any
increase) not spent in the immediately preceding period, and that Capital
Expenditures in any period shall be deemed first made from the Base Amount
applicable to such period in any given period.
SECTION 6.18. Limitation on Activities of Parent Guarantors, Crown
-----------------------------------------------------------
Developpement SNC, European Delaware LLCs and Euro Borrower. Notwithstanding
--------------------------------------------------------------
anything to the contrary set forth herein, each Parent Guarantor, Crown
Developpement SNC, each European Delaware LLC and the Euro Borrower shall not
conduct any business or hold or acquire any assets
-138-
(other than (i) in the case of a Parent Guarantor, the Equity Interests of the
Borrowers or another Parent Guarantor, (ii) in the case of Crown Developpement
SNC, the Equity Interests of the Euro Borrower, (iii) in the case of each
European Delaware LLC, the Equity Interests of its Subsidiaries, (iv) in the
case of the Euro Borrower, the Equity Interests of its Subsidiaries, and (v)
cash sufficient to pay amounts owing under its Indebtedness permitted to be
incurred hereunder and to pay its ordinary course operating expenses) and shall
have no operations other than holding such Equity Interests and, in the case of
Crown Holdings, activities reasonably related to being a publicly listed
company.
SECTION 6.19. Anti-Terrorism Law. The Loan Parties shall not (i) conduct
-------------------
any business or engage in making or receiving any contribution of funds, goods
or services to or for the benefit of any Person described in Section 3.23 above,
(ii) deal in, or otherwise engage in any transaction relating to, any property
or interests in property blocked pursuant to the Executive Order or any other
Anti-Terrorism Law, or (iii) engage in or conspire to engage in any transaction
that evades or avoids, or has the purpose of evading or avoiding, or attempts to
violate, any of the prohibitions set forth in any Anti-Terrorism Law (and the
Loan Parties shall deliver to the Lenders any certification or other evidence
requested from time to time by any Lender in its reasonable discretion,
confirming the Loan Parties' compliance with this Section 6.19).
SECTION 6.20. Principal Property. None of the Parent Guarantors, the U.S.
------------------
Borrower and the Euro Borrower shall, nor shall they permit any First Tier
Subsidiary to, own any Principal Property.
SECTION 6.21. Embargoed Person. At all times throughout the term of the
-----------------
Loans, (a) none of the funds or assets of the Loan Parties that are used to
repay the Loans shall constitute property of, or shall be beneficially owned
directly or, to the knowledge of any Loan Party, indirectly by, any Person
subject to sanctions or trade restrictions under United States law ("Embargoed
---------
Person" or "Embargoed Persons") that is identified on (1) the "List of Specially
------ -----------------
Designated Nationals and Blocked Persons" (the "SDN List") maintained by the
--------
Office of Foreign Assets Control (OFAC), U.S. Department of the Treasury, and/or
to the knowledge of any Loan Party, as of the date thereof, based upon
reasonable inquiry by such Loan Party, on any other similar list ("Other List")
----------
maintained by OFAC pursuant to any authorizing statute including, but not
limited to, the International Emergency Economic Powers Act, 50 U.S.C. xx.xx.
1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
-------
Executive Order or regulation promulgated thereunder, with the result that the
investment in the Loan Parties (whether directly or indirectly), is prohibited
by law, or the Loans made by the Lenders would be in violation of law, or (2)
the Executive Order, any related enabling legislation or any other similar
Executive Orders (collectively, "Executive Orders"), and (b) no Embargoed Person
----------------
shall have any direct interest, and to the knowledge of any Loan Party, as of
the date hereof, based upon reasonable inquiry by any Loan Party, indirect
interest, of any nature whatsoever in the Loan Parties, with the result that the
investment in the Loan Parties (whether directly or indirectly), is prohibited
by law or the Loans are in violation of law.
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SECTION 6.22. Anti-Money Laundering. At all times throughout the term of
----------------------
the Loans, to the knowledge of any Loan Party, as of the date hereof, based upon
reasonable inquiry by such Loan Party, none of the funds of such Loan Party,
that are used to repay the Loans shall be derived from any unlawful activity,
with the result that the investment in the Loan Parties (whether directly or
indirectly), is prohibited by law or the Loans would be in violation of law.
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default. Each of the following events or
----------------------------
occurrences described in this Section 7.01 shall constitute (i) an "Event of
--------
Default," if any Loans, LC Disbursements or Letters of Credit are outstanding,
-------
and (ii) an "Event of Termination," if no Loans, LC Disbursements or Letters of
---------------------
Credit are outstanding:
(a) Any Borrower shall default or fail (i) in the payment when due of
any principal of any Loan (including, without limitation, on any
Installment Payment Date) or any reimbursement obligation in respect of any
LC Disbursement, (ii) in the payment when due of any interest on any Loan
(and such default shall continue unremedied for a period of three Business
Days), or (iii) in the payment when due of any Fee described in Section
2.10 or other amount that by its terms is due and payable hereunder or
under any Loan Document or of any previously invoiced amount (other than an
amount described in the foregoing clauses (i) and (ii)) payable under this
Agreement or any other Loan Document (and such default shall continue
unremedied for a period of three Business Days).
(b) Any representation or warranty of any Loan Party made or deemed to
be made hereunder or in any other Loan Document or any other writing or
certificate furnished by or on behalf of any Loan Party to the
Administrative Agent, the U.K. Administrative Agent, any Collateral Agent,
the Issuing Bank or any Lender for the purposes of or in connection with
this Agreement or any such other Loan Document is or shall be incorrect in
any material respect when made or deemed made.
(c) Any Loan Party shall default in the due performance and observance
of any of its obligations under clause (i), (j) or (n) of Section 5.01,
clause (a) of Section 5.02 (with respect to the maintenance and
preservation of any Parent Guarantor's or any Borrower's corporate
existence) or Article VI.
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(d) Any Loan Party shall default in the due performance and observance
of any agreement (other than those specified in paragraphs (a) through (c)
above) contained herein or in any other Loan Document, and such default
shall continue unremedied for a period of 30 days after the date of such
default.
(e) A default shall occur (i) in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Material Indebtedness or (ii) in the performance or observance of any
obligation or condition with respect to any Material Indebtedness if the
effect of such default referred to in this clause (ii) is to accelerate the
maturity of any such Material Indebtedness or that enables or permits (with
or without the giving of notice, the lapse of time or both) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or
their behalf to cause any such Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity.
(f) Any judgment or order (or combination of judgments and orders) for
the payment of money equal to or in excess of $25.0 million individually or
in the aggregate shall be rendered against any Loan Party or any of its
Subsidiaries (or any combination thereof) and
(i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order and not stayed;
(ii) such judgment has not been stayed, vacated or discharged
within 60 days of entry; or
(iii) there shall be any period (after any applicable statutory
grace period) of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
or otherwise, shall not be in effect and such judgment is not fully
insured against by a policy or policies of insurance (with reasonable
or standard deductible provisions) issued by an insurer other than an
Affiliate of Crown Holdings.
(g) Any of the following events shall occur with respect to any
Pension Plan:
(i) the taking of any specific actions by a Loan Party, any ERISA
Affiliate or any other Person to terminate a Pension Plan if, as a
result of such termination, a Loan Party or any ERISA Affiliate could
be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $2.0 million; or
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(ii) an ERISA Event or noncompliance with respect to Non-U.S.
Plans shall have occurred that gives rise to a Lien or, when taken
together with all other ERISA Events and noncompliance with respect to
Non-U.S. Plans that have occurred, could reasonably be expected to
have a Material Adverse Effect.
(h) Any Change in Control shall occur.
(i) Any Loan Party or any of its Subsidiaries (other than any
Immaterial Subsidiary) shall:
(i) become insolvent or generally fail to pay debts as they
become due;
(ii) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, administrator, sequestrator or other custodian for
such Loan Party or any of such Subsidiaries or substantially all of
the property of any thereof, or make a general assignment for the
benefit of creditors;
(iii) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, administrator, sequestrator or other custodian for any Loan
Party or any of such Subsidiaries or for a substantial part of the
property of any thereof, and such trustee, receiver, sequestrator or
other custodian shall not be discharged or stayed within 60 days,
provided that each Loan Party and each such Subsidiary hereby
--------
expressly authorize the Administrative Agent and each Lender to appear
in any court conducting any relevant proceeding during such 60-day
period to preserve, protect and defend their rights under the Loan
Documents;
(iv) permit or suffer to exist the commencement of any
bankruptcy, reorganization, administration, debt arrangement or other
case or proceeding under any bankruptcy or insolvency law, or any
dissolution, winding up or liquidation proceeding, in respect of any
Loan Party or any such Subsidiary, and, if any such case or proceeding
is not commenced by any Loan Party or such Subsidiary, such case or
proceeding shall be consented to or acquiesced in by any Loan Party or
such Subsidiary or shall result in the entry of an order for relief or
shall remain for 60 days undismissed and unstayed, provided that each
Loan Party and each such Subsidiary hereby expressly authorize the
Administrative Agent and each Lender to appear in any court conducting
any such case or proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents; or
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(v) take any corporate or partnership action (or comparable
action, in the case of any other form of legal entity) authorizing, or
in furtherance of, any of the foregoing.
(j) The obligations of any Guarantor under Article IX or the
obligations of the U.S. Borrower or any other Subsidiary Loan Party under
the Guarantee Agreements shall cease to be in full force and effect or any
Guarantor or the U.S. Borrower or any such other Subsidiary Loan Party
shall repudiate its obligations thereunder.
(k) Any Lien purported to be created under any Security Document shall
fail or cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the Intercreditor Agreements, except as a result of (i) the Collateral
Agents' failure to take any action reasonably requested by any Borrower in
order to maintain a valid and perfected Lien on any Collateral or (ii) any
action taken by the Collateral Agents to release any Lien on any Collateral
in accordance with the terms of this Agreement and the Intercreditor
Agreements.
(l) The occurrence of any Triggering Event under the Sharing
Agreement.
SECTION 7.02. Action if Bankruptcy. If any Event of Default described in
--------------------
clauses (i) through (v) of Section 7.01(i) shall occur with respect to any
Parent Guarantor or any Borrower, the Commitments (if not theretofore
terminated) shall automatically terminate and the outstanding principal amount
of all outstanding Loans and all other Obligations shall automatically be and
become immediately due and payable, without notice or demand, all of which are
hereby waived by the Borrowers; provided that (i) if such Event of Default
relates to one or more U.S. Loan Parties only, the Requisite Euro Lenders may
rescind such acceleration as it applies to the Term B Euro Loans and the
Revolving Euro Loans and waive (either conditionally or unconditionally,
temporarily or otherwise) such Event of Default as it applies to the Term B Euro
Loans and the Revolving Euro Loans only and (ii) if such Event of Default
relates to one or more Euro Loan Parties only, the Requisite Dollar Lenders may
rescind such acceleration as it applies to the Term B Dollar Loans and the
Revolving Dollar Loans and waive (either conditionally or unconditionally,
temporarily or otherwise) such Event of Default as it applies to the Term B
Dollar Loans and the Revolving Dollar Loans.
SECTION 7.03. Action if Other Event of Default. If any Event of Default
---------------------------------
(other than any Event of Default described in clauses (i) through (v) of Section
7.01(i) with respect to any Parent Guarantor or any Borrower) shall occur for
any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Requisite Lenders, shall by
written notice to the Borrowers and each Lender declare all or any portion of
the outstanding principal amount of the Loans and other Obligations to be due
and payable and/or the Commitments (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of such Loans and other Obligations
which shall be so declared due and payable shall be and become immediately due
and payable, without further notice, demand or presentment, and/or, as the case
may be, the Commitments shall terminate.
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SECTION 7.04. Action Relating to U.S. Borrower or Euro Borrower Only.
----------------------------------------------------------
Notwithstanding Section 7.03, if an Event of Default specified in (i) Section
7.01(a) shall occur with respect to only the U.S. Borrower or the Euro Borrower
or any Subsidiary Borrower for any reason, (ii) Section 7.01(i) with respect to
a U.S. Loan Party (other than the U.S. Borrower) or Euro Loan Party (other than
the Euro Borrower or any Subsidiary Borrower) only or (iii) Section 7.01(c) with
respect to a default under Section 6.16(b) or (c), whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the direction of
(A) the Requisite Dollar Lenders, in the case of such Event of Default relating
to the U.S. Borrower, a U.S. Loan Party or Section 6.16(b), and (B) the
Requisite Euro Lenders, in the case of such Event of Default relating to the
Euro Borrower or any Subsidiary Loan Party, a Euro Loan Party or Section
6.16(c), shall by written notice to such Borrower and each Lender declare all or
any portion of the outstanding principal amount of the Term B Dollar Loans and
Revolving Dollar Loans, in the case of (A), and the Term B Euro Loans and the
Revolving Euro Loans, in the case of (B), and other Obligations with respect
thereto to be due and payable and/or the Revolving Dollar Commitments, in the
case of (A), and the Revolving Euro Commitments, in the case of (B) (if not
theretofore terminated), to be terminated (a "U.S. Acceleration" and a "Euro
------------------ ----
Acceleration," respectively), whereupon the full unpaid amount of such Loans and
------------
other Obligations with respect thereto which shall be so declared due and
payable shall be and become immediately due and payable, without further notice,
demand or presentment, and/or, as the case may be, such applicable Commitments
shall terminate. After any such U.S. Acceleration and prior to any rescission of
such U.S. Acceleration, the Requisite Euro Lenders may direct the Administrative
Agent to declare all or any portion of the outstanding principal amount of the
Term B Euro Loans and the Revolving Euro Loans and other Obligations with
respect thereto to be due and payable and/or the Revolving Euro Commitments (if
not theretofore terminated) to be terminated, whereupon the full unpaid amount
of such Loans and other Obligations with respect thereto which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, such
Commitments shall terminate. After any such Euro Acceleration and prior to any
rescission of such Euro Acceleration, the Requisite Dollar Lenders may direct
the Administrative Agent to declare all or any portion of the outstanding
principal amount of the Term B Dollar Loans and Revolving Dollar Loans and other
Obligations with respect thereto to be due and payable and/or the Revolving
Dollar Commitments (if not theretofore terminated) to be terminated, whereupon
the full unpaid amount of such Loans and other Obligations with respect thereto
which shall be so declared due and payable shall be and become immediately due
and payable, without further notice, demand or presentment, and/or, as the case
may be, such Commitments shall terminate.
SECTION 7.05. Action if Event of Termination. (a) If any Event of
----------------------------------
Termination (other than any Event of Termination described in clauses (i)
through (v) of Section 7.01(i) with respect to any Parent Guarantor or any
Borrower) shall occur for any reason,
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whether voluntary or involuntary, and be continuing, the Administrative Agent,
upon the direction of the Requisite Lenders, shall by written notice to the
Borrowers and each Lender declare the Commitments (if not theretofore
terminated) to be terminated, whereupon without further notice, demand or
presentment, the Commitments shall terminate.
(b) Notwithstanding Section 7.05(a), if an Event of Termination specified
in (i) Section 7.01(a) shall occur with respect to only the U.S. Borrower or the
Euro Borrower or any Subsidiary Borrower for any reason, (ii) Section 7.01(i)
with respect to a U.S. Loan Party (other than the U.S. Borrower) or Euro Loan
Party (other than the Euro Borrower or any Subsidiary Borrower) only or (iii)
Section 7.01(c) with respect to a default under Section 6.16(b) or (c), whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of (A) the Requisite Dollar Lenders, in the case of such Event of
Termination relating to the U.S. Borrower, a U.S. Loan Party or Section 6.16(b),
and (B) the Requisite Euro Lenders, in the case of such Event of Termination
relating to the Euro Borrower or any Subsidiary Borrower, a Euro Loan Party or
Section 6.16(c), shall by written notice to such Borrower and each Lender
declare all the Revolving Dollar Commitments, in the case of (A), and the
Revolving Euro Commitments, in the case of (B) (if not theretofore terminated),
to be terminated (a "U.S. Termination" and a "Euro Termination," respectively),
---------------- ----------------
whereupon without further notice, demand or presentment, the Revolving Euro
Commitment or the Revolving Dollar Commitments, as applicable, shall terminate.
After any such U.S. Termination and prior to any rescission of such U.S.
Termination, the Requisite Euro Lenders may direct the Administrative Agent to
declare the Revolving Euro Commitments (if not theretofore terminated) to be
terminated, whereupon without further notice, demand or presentment and/or, as
the case may be, such Commitments shall terminate. After any such Euro
Termination and prior to any rescission of such Euro Termination, the Requisite
Dollar Lenders may direct the Administrative Agent to declare all the Revolving
Dollar Commitments (if not theretofore terminated) to be terminated, whereupon
without further notice, demand or presentment, and/or, as the case may be, such
Commitments shall terminate. Upon such termination of the Commitments, all
accrued fees and expenses shall be immediately due and payable.
SECTION 7.06. Sharing Agreement. After the occurrence of a Triggering Event
-----------------
(as defined in the Sharing Agreement), unless such Triggering Event is waived in
accordance with the terms of this Agreement and the Sharing Agreement, the Loan
Parties hereby irrevocably agree to pay any and all amounts in respect of the
Loans and the Obligations directly to the Sharing Agent under the Sharing
Agreement (and to follow the directions given with respect thereto by the
Administrative Agent).
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ARTICLE VIII
THE AGENTS
SECTION 8.01. The Agents. Citicorp North America, Inc. is hereby appointed
----------
to act as Administrative Agent and the U.S. Collateral Agent on behalf of the
U.S. Lenders, and Citibank International plc is hereby appointed to act as the
U.K. Administrative Agent and Citicorp Trustee Company Limited is hereby
appointed to act as the Euro Collateral Agent on behalf of the Term B Euro
Lenders and the Revolving Euro Lenders. Each of the Lenders and each assignee of
any such Lender hereby irrevocably authorizes each of the Agents to take such
actions on behalf of such Lender or assignee and to exercise such powers as are
specifically delegated to such Agent by the terms and provisions hereof and of
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Each Agent (it being understood that with respect
to the Euro Collateral Agent, only to the extent expressly set forth in the Euro
Intercreditor Agreement) is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payments of principal of and interest on the Loans, and all payments and all
other amounts due to the Lenders hereunder, and promptly to distribute to each
Lender its proper share of each payment so received; (b) to give notice on
behalf of each of the Lenders to any of the Borrowers of any Default or Event of
Default specified in this Agreement of which such Agent has actual knowledge
acquired in connection with its agency hereunder; and (c) to distribute to each
Lender copies of all notices, financial statements and other materials delivered
by the Borrowers pursuant to this Agreement as received by such Agent.
None of the Agents nor any of their Related Parties shall be liable to the
Lenders as such for any action taken or omitted by any of them except to the
extent finally judicially determined to have resulted from its or his or her own
gross negligence or willful misconduct, or be responsible for any statement,
warranty or representation herein or the contents of any document delivered in
connection herewith, or be required to ascertain or to make any inquiry
concerning the performance or observance by any Loan Party of any of the terms,
conditions, covenants or agreements contained in any Loan Document. The Agents
shall not be responsible to the Lenders for the due execution, genuineness,
validity, enforceability or effectiveness of this Agreement or any other Loan
Documents or other instruments or agreements. Each Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Requisite Lenders (or, when expressly required
hereby, all the Lenders) and, except as otherwise specifically provided herein,
such instructions and any action or inaction pursuant thereto shall be binding
on all the Lenders. Each Agent shall, in the absence of actual knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. None of the Agents nor any of their Related Parties
shall have any responsibility to the Loan Parties on account of the failure of
or delay in performance or breach by any Lender of any of its obligations
hereunder or to any Lender on account of the failure of or delay in performance
or breach by any other Lender or the Loan Parties of any of their respective
obligations hereunder or under any other Loan Document or in connection herewith
or therewith. Each Agent may execute any and all duties hereunder by or through
any of its Related Parties or any sub-agent appointed by it and shall be
entitled to rely upon the advice of legal counsel selected by it with respect to
all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
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The Lenders hereby acknowledge that no Agent shall be under any duty to
take any discretionary action permitted to be taken by it pursuant to the
provisions of any Loan Document unless it shall be requested in writing to do so
by the Requisite Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, any Agent may resign at any time by notifying the Lenders, the Issuing
Bank and the Borrowers. Upon any such resignation, the Requisite Lenders shall
have the right to appoint a successor. If no successor shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor Agent which shall be a bank with an office in New York, New York,
having a combined capital and surplus of at least $500.0 million or an Affiliate
of any such bank. Upon the acceptance of any appointment as an Agent hereunder
by such a successor bank, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After an Agent's resignation hereunder, the provisions of this Article and
Section 10.05 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 an Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as an Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
such Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with Crown Holdings or any Subsidiary
or other Affiliate thereof as if it were not an Agent.
Each Lender acknowledges that it has, independently and without reliance
upon any Agent or any other Lender and based on such documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement or any other Loan Document, any related agreement or any
document furnished hereunder or thereunder. Each Lender hereby authorizes the
Collateral Agents to enter into the U.S. Intercreditor Agreement and the Euro
Intercreditor Agreement, the Receivables Intercreditor Agreement, the Sharing
Agreement and each Security Document on behalf of such Lender and to exercise
its rights and perform its obligations thereunder. Each of the Term B Euro
Lenders and the Revolving Euro Lenders further agrees to supply the U.K.
Administrative Agent with any information required by it in order to calculate
the Mandatory Cost in accordance with Exhibit W in respect of Eurocurrency
---------
Borrowings denominated in Pounds Sterling or Euros.
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Notwithstanding anything to the contrary in this Agreement, none of the
Joint Lead Arrangers, the Syndication Agent or the Documentation Agent, in such
capacities, shall have any obligations, duties or responsibilities, and shall
incur no liabilities, under this Agreement or any other Loan Document.
Each of the Lenders represents to the Agents only that neither the
execution and delivery of the Security Documents by the Administrative Agent and
the U.K. Administrative Agent on behalf of such Lender nor the performance
thereof by the Administrative Agent and the U.K. Administrative Agent on behalf
of such Lender will conflict with or create a default or violation under (a)
such Lender's organizational documents, (b) any other agreement, instrument or
document that such Lender is a party to or (c) any applicable law, rule,
regulation, order, decree or judgment.
Each Term B Euro Lender and Revolving Euro Lender appoints and designates
the U.K. Administrative Agent as the Person holding the power of attorney
("fonde de pouvoir") within the meaning of Article 2692 of the Civil Code of
-----------------
Quebec for the purposes of the hypothecary security to be granted by Crown Cork
& Seal Canada, Inc. pursuant to a deed of hypothec in the Province of Quebec
and, in such capacity, the U.K. Administrative Agent shall hold the hypothec
granted in the Province of Quebec for the benefit of the Term B Euro Lender and
Revolving Euro Lenders and shall act as their agent in the exercise of the
rights conferred thereunder. Each Lender further acknowledges that the first
issue of 25% Collateral Demand Mortgage Debentures to be issued pursuant to the
Deed of Hypothec may be purchased from the grantor of such hypothec by Crown
Cork & Seal Canada, Inc., by underwriting, purchase, subscription or otherwise
notwithstanding the terms of Section 32 of the Act respecting the Special Power
of Legal Persons (Quebec).
ARTICLE IX
GUARANTEE
SECTION 9.01. Guarantee of Each of the Parent Guarantors. In order to
---------------------------------------------
induce the Administrative Agent, the Issuing Bank and the Lenders to execute and
deliver this Agreement and to make or maintain the Loans and to issue Letters of
Credit hereunder, and in consideration thereof, each Parent Guarantor hereby,
jointly and severally, unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Agents, for the ratable benefit of the
Issuing Bank and the Lenders, the prompt and complete payment and performance by
each Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations, and each of the Parent Guarantors further agrees
to pay any and all reasonable expenses (including, without limitation, all
reasonable fees, charges and disbursements of counsel) which may be paid or
incurred by the Agents, the Issuing Bank or any Lender in enforcing any of their
rights under the guarantee contained in this Article IX. The guarantee contained
in this Article IX, subject to Section 9.05, shall remain in full force and
effect until all Letters of Credit have terminated, the Obligations are paid in
full and the Commitments are terminated.
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Each Parent Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to any Agent, the Issuing Bank or any Lender on
account of its liability under this Article IX, it will notify such Agent, the
Issuing Bank and such Lender in writing that such payment is made under the
guarantee contained in this Article IX for such purpose. No payment or payments
made by any Borrower or any other Person or received or collected by any Agent,
the Issuing Bank or any Lender from any Borrower or any other Person by virtue
of any action or proceeding or any setoff or appropriation or application, at
any time or from time to time, in reduction of or in payment of the Obligations
shall be deemed to modify, reduce, release or otherwise affect the liability of
each Parent Guarantor under this Article IX, which, notwithstanding any such
payment or payments, shall remain liable for the unpaid and outstanding
Obligations until, subject to Section 9.05, the Obligations are paid in full and
the Commitments are terminated.
SECTION 9.02. Guarantee of the Euro Borrower. In order to induce the U.K.
------------------------------
Administrative Agent and the Term B Euro Lenders and the Revolving Euro Lenders
to execute and deliver this Agreement and to make or maintain the Term B Euro
Loans and the Revolving Euro Loans hereunder, and in consideration thereof, the
Euro Borrower hereby unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, to the Agents, for the ratable benefit of the
Term B Euro Lenders and the Revolving Euro Lenders, the prompt and complete
payment and performance by each Subsidiary Borrower when due (whether at stated
maturity, by acceleration or otherwise) of the Subsidiary Borrower Obligations,
and the Euro Borrower further agrees to pay any and all reasonable expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by the Agents or any Term B Euro
Lender or any Revolving Euro Lender in enforcing any of their rights under the
guarantee contained in this Article IX. The guarantee contained in this Article
IX, subject to Section 9.05, shall remain in full force and effect until all
Subsidiary Borrower Obligations are paid in full and the Commitments are
terminated.
The Euro Borrower agrees that whenever, at any time, or from time to time,
it shall make any payment to any Agent or any Term B Euro Lender or any
Revolving Euro Lender on account of its liability under this Article IX, it will
notify such Agent or such Revolving Euro Lender or such Term B Euro Lender in
writing that such payment is made under the guarantee contained in this Article
IX for such purpose.
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No payment or payments made by any Subsidiary Borrower or any other Person or
received or collected by any Agent or any Term B Euro Lender or any Revolving
Euro Lender from any Subsidiary Borrower or any other Person by virtue of any
action or proceeding or any setoff or appropriation or application, at any time
or from time to time, in reduction of or in payment of the Subsidiary Borrower
Obligations shall be deemed to modify, reduce, release or otherwise affect the
liability of the Euro Borrower under this Article IX, which, notwithstanding any
such payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to Section 9.05, the Subsidiary
Borrower Obligations are paid in full and the Commitments are terminated.
SECTION 9.03. Amendments, etc. with Respect to the Applicable Obligations.
------------------------------------------------------------
Each Guarantor shall remain obligated under this Article IX notwithstanding
that, without any reservation of rights against such Guarantor, and without
notice to or further assent by such Guarantor, any demand for payment of or
reduction in the principal amount of any of the applicable Obligations made by
the Agents, the Syndication Agent, the Issuing Bank or any Lender may be
rescinded by the Agents, the Syndication Agent, the Issuing Bank or such Lender,
and any of the applicable Obligations continued, and the applicable Obligations,
or the liability of any other party upon or for any part thereof, or any
collateral security or guarantee therefor or right of offset with respect
thereto, may, from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released by
the Agents, the Syndication Agent, the Issuing Bank or any Lender, and this
Agreement and any other documents executed and delivered in connection herewith
may be amended, modified, supplemented or terminated, in whole or in part, as
the Lenders (or the Requisite Lenders, as the case may be) may deem advisable
from time to time, and any collateral security, guarantee or right of offset at
any time held by the Agents, the Syndication Agent, the Issuing Bank or any
Lender for the payment of the applicable Obligations may be sold, exchanged,
waived, surrendered or released. None of the Agents, the Syndication Agent, the
Issuing Bank nor any Lender shall have any obligation to protect, secure,
perfect or insure any lien at any time held by it as security for the applicable
Obligations or for the guarantee contained in this Article IX or any property
subject thereto.
SECTION 9.04. Guarantee Absolute and Unconditional. Each Guarantor waives
------------------------------------
any and all notice of the creation, renewal, extension or accrual of any of the
applicable Obligations and notice of or proof of reliance by the Agents, the
Syndication Agent, the Issuing Bank or any Lender upon the guarantee contained
in this Article IX or acceptance of the guarantee contained in this Article IX;
the applicable Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended, amended or
waived, in reliance upon the guarantee contained in this Article IX, and all
dealings between each Guarantor, on the one hand, and the Agents, the
Syndication Agent, the Issuing Bank and the Lenders, on the other, shall
likewise be conclusively presumed to have been had or consummated in reliance
upon the guarantee contained in this Article IX.
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The Agents will, to the extent permitted by applicable law, request payment of
any applicable Obligation from the applicable Borrower before making any claim
against the applicable Guarantor under this Article IX, but will have no further
obligation to proceed against a Borrower or to defer for any period a claim
against the applicable Guarantor hereunder. Except as expressly provided in the
preceding sentence, each Guarantor waives diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon such Guarantor
or any Borrower with respect to the applicable Obligations. Each guarantee
contained in this Article IX shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of this Agreement or any other Loan Document, any of the
applicable Obligations or any collateral security therefor or guarantee or right
of offset with respect thereto at any time or from time to time held by any
Agent, the Syndication Agent, the Issuing Bank or any Lender, (b) the legality
under applicable laws of repayment by the relevant Borrower of any applicable
Obligations or the adoption of any applicable laws purporting to render any
applicable Obligations null and void, (c) any defense, setoff or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by any Guarantor or the applicable Borrower against
the Agents, the Syndication Agent, the Issuing Bank or any Lender, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of any
Guarantor or any Borrower) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Borrower for any applicable
Obligations, or of any Guarantor under the guarantee contained in this Article
IX, in bankruptcy or in any other instance. When any Agent, the Syndication
Agent, the Issuing Bank or any Lender is pursuing its rights and remedies under
this Article IX against any Guarantor, such Agent, the Syndication Agent, the
Issuing Bank or any Lender may, but shall be under no obligation to, pursue such
rights and remedies as it may have against any Borrower or any other Person or
against any collateral security or guarantee for the applicable Obligations or
any right of offset with respect thereto, and any failure by any Agent, the
Syndication Agent, the Issuing Bank or any Lender to pursue such other rights or
remedies or to collect any payments from any Borrower or any such other Person
or to realize upon any such collateral security or guarantee or to exercise any
such right of offset, or any release of any Borrower or any such other Person or
of any such collateral security, guarantee or right of offset, shall not relieve
any Guarantor of any liability under this Article IX, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Agents, the Syndication Agent, the Issuing Bank and the
Lenders against any Guarantor.
SECTION 9.05. Reinstatement. Each of the guarantees contained in this
-------------
Article IX shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the applicable
Obligations is rescinded or must otherwise be restored or returned by any Agent,
the Syndication Agent, the Issuing Bank or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or upon
or as a result of the appointment of a receiver, intervenor or conservator of,
or trustee or similar officer for, any Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
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SECTION 9.06. Payments. Each Guarantor hereby agrees that any payments in
--------
respect of the applicable Obligations pursuant to this Article IX will be paid
without setoff or counterclaim, at the option of the Issuing Bank or the
relevant Lender(s), in the currency in which the applicable Loans are
denominated at the office of the Applicable Agent specified in Section 10.01.
SECTION 9.07. Independent Obligations. The obligations of each Guarantor
------------------------
under the guarantee contained in this Article IX are independent of the
obligations of each Borrower, and a separate action or actions may be brought
and prosecuted against any Guarantor whether or not the relevant Borrower is
joined in any such action or actions. Each Guarantor waives, to the full extent
permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the enforcement thereof. Any payment by the relevant
Borrower or other circumstance which operates to toll any statute of limitations
as to such Borrower shall operate to toll the statute of limitations as to the
relevant Guarantor.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. (a) Except as set forth in Section 10.19, notices
-------
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail, sent by telecopy or electronic mail, as follows:
(i) if to Crown Holdings, to it at Xxx Xxxxx Xxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, attention: Xx. Xxxx X. Xxxxxxxxxx (telecopy: (215)
552-3715), with a copy to Dechert LLP, 4000 Xxxx Atlantic Towers, 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention: Xxxx Xxxxx, Esq.
(telecopy: (000) 000-0000);
(ii) if to Crown International, to it at Xxx Xxxxx Xxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, attention: Xx. Xxxx X. Xxxxxxxxxx (telecopy: (215)
552-3715), with a copy to Dechert LLP, 4000 Xxxx Atlantic Towers, 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention: Xxxx Xxxxx, Esq.
(telecopy: (000) 000-0000);
(iii) if to CCSC, to it at Xxx Xxxxx Xxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, attention: Xx. Xxxx X. Xxxxxxxxxx (telecopy: (000) 000-0000), with a
copy to Dechert LLP, 4000 Xxxx Atlantic Towers, 0000 Xxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention: Xxxx Xxxxx, Esq. (telecopy:
(000) 000-0000);
(iv) if to the U.S. Borrower, to it at Xxx Xxxxx Xxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, attention: Xx. Xxxx X. Xxxxxxxxxx (telecopy: (215)
552-3715), with a copy to Dechert LLP, 4000 Xxxx Atlantic Towers, 0000 Xxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention: Xxxx Xxxxx, Esq.
(telecopy: (000) 000-0000);
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(v) if to the Euro Borrower, to it at Le Colisee I, Rue Fructidor,
75830 Xxxxx Xxxxx 00, Xxxxxx, attention: Xx. Xxxxxx Xxxxx (telecopy: 33 0
149 18 45 00), with a copy to Dechert LLP, 4000 Xxxx Atlantic Towers, 0000
Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, attention: Xxxx Xxxxx, Esq.
(telecopy: (000) 000-0000);
(vi) if to the Administrative Agent, to it at Citicorp North America,
Inc., 0 Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000, attention: Xxxx
Xxxxxx (telecopy: (000) 000-0000) (e-mail: xxxx.x.xxxxxx@xxxxxxxxx.xxx),
---------------------------
with a copy to (a) Xxxxxxx X. Xxxxxxx (telecopy: (000) 000-0000) (e-mail:
xxxxxxx.x.xxxxxxx@xxxxxxxxx.xxx), and (b) with a copy to Xxxxxx Xxxxxx &
Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx X.
Xxxxxx, Esq. (telecopy: (000) 000-0000);
(vii) if to the U.K. Administrative Agent, to it at Citibank
International plc, Citigroup Centre, Canada Square, Xxxxxx Xxxxx, Xxxxxx
X00 0XX, attention: Xxxxx Xxxxxx/Xxxxx Xxxxx (telecopy: x00 000 000 00 00)
(e-mail: xxxxx.xxxxxx@xxxxxxxxx.xxx; xxxxx.xxxxx@xxxxxxxxx.xxx), with a
--------------------------
copy to (a) Xxxxxxx X. Xxxxxxx (telecopy: (000) 000-0000) (e-mail:
xxxxxxx.x.xxxxxxx@xxxxxxxxx.xxx), and (b) Xxxxxx Xxxxxx & Xxxxxxx, 80 Pine
-------------------------------
Street, New York, New York 10005, attention: Xxxxxxx X. Xxxxxx, Esq.
(telecopy: (000) 000-0000);
(viii) if to the Syndication Agent, to it at Deutsche Bank Securities
Inc., 000 X. Xxxxxx Xx., Xxxxx 0000, Xxxxxxx, XX 00000, attention: Xxxxx
Xxxxxx and James Paris (telecopy: X. Xxxxxx: (000) 000-0000 and J. Paris:
(000) 000-0000) (e-mail: xxxxx.xxxxxx@xx.xxx and xxxxx.xxxxx@xx.xxx), with
a copy to Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Xxxxxxx X. Xxxxxx, Esq. (telecopy: (000) 000-0000);
(ix) if to the Issuing Bank, to it at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention: Xxxxxx Xxxxxxx (telecopy: (000) 000-0000)
(e-mail: xxxxxx.x.xxxxxxx@xxxxxxxxx.xxx), with a copy to (a) Xxxxxxx X.
------------------------------
Xxxxxxx (telecopy: (212) 723-5711) (e-mail:
xxxxxxx.x.xxxxxxx@xxxxxxxxx.xxx), and (b) Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxxxx X. Xxxxxx, Esq.
(telecopy: (000) 000-0000); and
(x) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or its Administrative Questionnaire or in the
--------------
Assignment and Acceptance pursuant to which such Lender shall have become a
party hereto.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt if delivered by hand or overnight courier service
or sent by telecopy or electronic mail or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent
or mailed (properly addressed) to such party as provided in this Section 10.01
or in accordance with the latest unrevoked direction from such party given in
accordance with this Section 10.01. Each Loan Party and Lender hereunder agrees
to notify the Administrative Agent and the U.K. Administrative Agent in writing
promptly of any change to the notice information provided above or in Schedule
--------
2.01.
----
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(b) The Loan Parties (jointly and severally to the extent legally
permissible) shall forthwith on demand indemnify each Lender against any loss or
liability which that Lender incurs (and that Lender shall not be liable to any
Loan Party in any respect) solely as a consequence of:
(i) any Person to whom any notice or communication under or in
connection with this Agreement is sent by the relevant Borrower by telecopy
failing to receive that notice or communication (unless directly caused by
that Person's gross negligence or willful default); or
(ii) any telecopy communication which reasonably appears to that
Lender to have been sent by the relevant Borrower having in fact been sent
by a Person other than such Borrower.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
-----------------------
representations and warranties made by the Loan Parties herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders hereto and shall survive the making by the
Lenders of the Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that any Agent, the Issuing Bank or any Lender may have had notice or knowledge
of any Default or Event of Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
Fee or any other amount payable under this Agreement or any other Loan Document
is outstanding and unpaid or any Letter of Credit is outstanding and so long as
the Commitments have not been terminated. The provisions of Sections 2.15, 2.16,
2.17 and 10.05 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 10.03. Binding Effect. Subject to Section 4.01, this Agreement
---------------
shall become effective when it shall have been executed by each Loan Party and
the Administrative Agent and the U.K. Administrative Agent and when the
Administrative Agent shall have received counterparts hereof which, when taken
together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective permitted successors and assigns.
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SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any
----------------------
of the parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party (including any Affiliate of
the Issuing Bank that issues any Letter of Credit). All covenants, promises and
agreements by or on behalf of the Loan Parties, the Agents, the Syndication
Agent, or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby), Participants to the extent provided herein (including in
clause (f) below) and, solely to the extent expressly contemplated hereby, the
Related Parties of each of the Agents, the Syndication Agent, the Issuing Bank
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Each Lender may assign to one or more assignees all or a portion of its
interests, rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided,
--------
however, that (i) except in the case of an assignment to a Lender or a Lender
-------
Affiliate or in connection with the initial syndication of the Commitments and
Loans, the applicable Borrower must give prior written consent to such
assignment (which consent shall not be unreasonably withheld or delayed), (ii)
except in the case of an assignment to a Lender or a Lender Affiliate, the
Administrative Agent (and, in the case of any assignment of a Revolving Credit
Commitment or any Lender's obligations in respect of its LC Exposure, the
Issuing Bank) must give their prior written consent to such assignment (which
consent shall not be unreasonably withheld or delayed), (iii) except in the case
of an assignment to a Lender or a Lender Affiliate, the amount of the Commitment
or Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is
delivered to the Applicable Agent) shall not be less than the Dollar Equivalent
of $1.0 million in the case of Term B Loans and $2.0 million in the case of
Revolving Loans and increments of $1.0 million in excess thereof (or (A) if the
aggregate amount of the Commitment or Loans of the assigning Lender is a lesser
amount, the entire amount of such Commitment or Loans, or (B) in any other case,
such lesser amount as the applicable Borrower and the Applicable Agent otherwise
agree), (iv) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement, except that this clause (iv) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's rights and
obligations in respect of one Class of Commitments and Loans, (v) except in the
case of an assignment to a Lender or a Lender Affiliate or an assignment
required to be made pursuant to Section 2.20, the parties to each such
assignment shall execute and deliver to the Applicable Agent an Assignment and
Acceptance, together with a processing and recordation fee equal to the Dollar
Equivalent of $3,500,
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(vi) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent and the U.K. Administrative Agent an Administrative
Questionnaire and (vii) the Revolving Euro Lenders may only make such assignment
to a Person qualified to carry out banking activities in the European Union;
provided, further, that any consent of the applicable Borrower otherwise
------------------
required under this paragraph shall not be required if a Default or an Event of
Default has occurred and is continuing. Subject to acceptance and recording
pursuant to paragraph (e) of this Section 10.04, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five Business Days after the execution thereof (unless otherwise
determined by the Applicable Agent), (A) the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and (B) the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all or the remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.15, 2.16, 2.17 and 10.05
with respect to facts and circumstances occurring prior to the effective date of
such assignment, as well as to any Fees accrued for its account and not yet
paid). Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (f) of this Section.
(c) By executing and delivering an Assignment and Acceptance, the assigning
Lender thereunder and the assignee thereunder shall be deemed to confirm to and
agree with each other and the other parties hereto as follows: (i) such
assigning Lender warrants that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and that its
Commitment, and the outstanding balances of its Loans, in each case without
giving effect to assignments thereof which have not become effective, are as set
forth in such Assignment and Acceptance; (ii) except as set forth in (i) above,
such assigning Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of Crown Holdings or any Subsidiary or the
performance or observance by any Loan Party or any Subsidiary of any of its
obligations under this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto; (iii) such assignee represents
and warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements, if any,
delivered pursuant to Section 5.01 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance;
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(v) such assignee will independently and without reliance upon any Agent, such
assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (vi) such
assignee appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to such
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; (vii) such assignee agrees that it will perform in
accordance with their terms all the obligations which by the terms of this
Agreement are required to be performed by it as a Lender; and (viii) Schedule
--------
2.01 shall be deemed to be amended to reflect the assigning Lender thereunder
----
and the assignee thereunder after giving effect thereto.
(d) The Administrative Agent and the U.K. Administrative Agent, acting for
this purpose as an agent of the Borrowers, shall maintain at one of its offices
in The City of New York and London, England, respectively, a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). Except to the extent
--------
inconsistent with Section 2.07(d), the entries in the Register shall be
conclusive and the Borrowers, the Agents, the Syndication Agent, the Issuing
Bank and the Lenders may treat each Person whose name is recorded in the
Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrowers, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance executed
by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of the applicable Borrower, the
Issuing Bank and the Applicable Agent to such assignment, the Applicable Agent
shall (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Lenders. No assignment shall be effective unless it has been recorded in the
Register as provided in this paragraph (e).
(f) Each Lender may without the consent of the Borrowers, the Issuing Bank
or the Applicable Agent sell participations to any Person (other than a natural
person or a Borrower or any of a Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of its rights and obligations under this
-----------
Agreement (including all or a portion of its Commitment and the Loans owing to
it); provided, however, that subject to the terms and conditions contained
------------------
herein, (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) each Participant shall be
entitled to the benefit of the cost protection provisions contained in Sections
2.15, 2.16 and 2.17 and the provisions of Section 5.01 to the same extent as if
it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section 10.04,
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and (iv) the Borrowers, the Agents, the Syndication Agent, the Issuing Bank and
the Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, and,
except as agreed to by the Euro Borrower as of the Effective Date, such Lender
shall retain the sole right (which each Lender agrees will not be limited by the
terms of any participation agreement or other agreement with a participant) to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents (other than, without the consent of the
Participant, amendments, modifications or waivers described in the first proviso
of Section 10.09(b) that affect such Participant (it being understood that with
respect to the voting rights of any Participant agreed to by the Euro Borrower
as of the Effective Date, such Lender's voting rights in respect of the
non-participated portion of its commitment may be voted independently of such
Participant's participation interest)). To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.06 as though it
were a Lender, provided such Participant agrees to be subject to Section 2.19 as
--------
though it were a Lender. In addition, each Participant shall be entitled to rely
upon the representations and warranties of the Loan Parties set forth in this
Agreement and in any other Loan Document (or any certificate to be delivered
hereunder or thereunder).
(g) Any Lender or participant may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to Crown Holdings and its Subsidiaries
furnished to such Lender by or on behalf of any of the Loan Parties; provided
--------
that, prior to any such disclosure of information designated by any Borrower as
confidential, each such assignee or participant or proposed assignee or
participant shall execute a confidentiality agreement in form and substance
consistent with the provisions of Section 10.18.
(h) Any Lender may (without consent of or notice to the Borrowers or the
Administrative Agent) at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank and any pledge or assignment to any holder, or trustee for or any
representative of holders, of obligations owed or securities issued by such
Lender, as security for such obligations or securities and this Section 10.04
shall not apply to any such pledge or assignment of a security interest;
provided that (x) no such pledge or assignment of a security interest shall
--------
release a Lender from any of its obligations hereunder or substitute any such
pledgee or assignee for such Lender as a party hereto and (y) any foreclosure or
similar action shall be subject to this Section 10.04. In order to facilitate
such a pledge or assignment, each Borrower shall, at the request of the
assigning Lender, duly execute and deliver to the assigning Lender a promissory
note or notes evidencing the Loans made to such Borrower by the assigning Lender
hereunder.
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(i) No Loan Party shall assign or delegate any of its rights or duties
hereunder without the prior written consent of the Administrative Agent and each
Lender, and any attempted assignment without such consent shall be null and
void.
SECTION 10.05. Expenses; Indemnity. (a) Each Euro Loan Party (jointly and
--------------------
severally to the extent legally permissible) agrees to pay (i) all reasonable
out-of-pocket expenses incurred by the Agents and the Syndication Agent and
their respective Affiliates, including the reasonable fees, charges and
disbursements of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Administrative Agent,
and any other U.S. and non-U.S. local counsel in connection with the syndication
of the credit facilities provided for herein, the preparation and administration
of this Agreement and the other Loan Documents or in connection with any
amendments, modifications or waivers of the provisions hereof or thereof
(whether or not the transactions hereby contemplated shall be consummated), (ii)
all out-of-pocket expenses incurred by the Issuing Bank in connection with the
issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all out-of-pocket expenses incurred by the
Joint Lead Arrangers, the Agents, the Syndication Agent, the Issuing Bank or any
Lender in connection with the enforcement or protection of their rights in
connection with this Agreement (including their rights under this Section), the
other Loan Documents or the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit,
and, in connection with any such enforcement or protection, the fees, charges
and disbursements of any other counsel for the Agents, the Syndication Agent,
the Joint Lead Arrangers, the Issuing Bank or any Lender; provided, however,
------------------
that the Euro Loan Parties shall not be obligated to pay for expenses incurred
by a Lender in connection with the assignment of Loans to an assignee Lender
(except pursuant to Section 2.20) or the sale of Loans to a participant pursuant
to Section 10.04.
(b) Each Loan Party (jointly and severally to the extent legally
permissible) agrees to indemnify the Agents, the Syndication Agent, the Joint
Lead Arrangers, the Issuing Bank, each Lender, each Affiliate of any of the
foregoing Persons and each of their respective Related Parties (each such Person
being called an "Indemnitee") against, and to hold each Indemnitee harmless
----------
from, any and all losses, claims, damages, liabilities and related reasonable
expenses, including reasonable counsel fees, charges and disbursements, incurred
by or asserted against any Indemnitee arising out of, in any way connected with,
or as a result of (i) the execution or delivery of this Agreement or any other
Loan Document or any agreement or instrument contemplated thereby, the
performance by the parties hereto or thereto of their respective obligations
thereunder or the consummation of the Transactions and the other transactions
contemplated thereby, (ii) the use of the proceeds of the Loans or Letters of
Credit (including any refusal by the Issuing Bank to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii)
any claim, litigation, investigation or proceeding relating to any of the
foregoing, whether or not any Indemnitee is a party thereto, or (iv) any actual
or alleged presence or Release of Hazardous Materials on any property owned or
operated by any Loan Party or any of its Subsidiaries, or any Environmental
Liability or Environmental Claim related in any way to any Loan Party or its
Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be
--------
available to the extent that such losses, claims, damages, liabilities or
related reasonable expenses are finally judicially determined to have arisen by
reason of the Indemnitee's gross negligence or willful misconduct.
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(c) To the extent that any Loan Party fails to promptly pay any amount to
be paid by it to any Agent, the Syndication Agent, the Joint Lead Arrangers or
the Issuing Bank under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent, the Joint Lead Arrangers or the Issuing
Bank, as the case may be, such Lender's pro rata share (determined as of the
--------
time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount (other than syndication expenses); provided that the
--------
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the applicable
Agent or the Issuing Bank in its capacity as such. For purposes hereof, a
Lender's "pro rata share" shall be determined by the Administrative Agent (after
--------
giving effect to the pro rata share of defaulting Lenders), based upon its share
--------
of the sum of the total Revolving Credit Exposures, outstanding Term B Loans and
unused Commitments at the time.
(d) To the extent permitted by applicable law, no Loan Party shall assert,
and each hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) The provisions of this Section 10.05 shall remain operative and in full
force and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the invalidity or unenforceability
of any term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the U.K.
Administrative Agent or any Lender. All amounts due under this Section 10.05
shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default or Event of
-----------------
Termination shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of any Loan Party
against any of and all the obligations of such Loan Party now or hereafter
existing under this Agreement and other Loan Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement or such other Loan Document
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and although such obligations may be unmatured. In connection with exercising
its rights pursuant to the previous sentence, a Lender may at any time use any
of such Loan Party's credit balances with the Lender to purchase at the Lender's
applicable spot rate of exchange any other currency or currencies which the
Lender considers necessary to reduce or discharge any amount due by such Loan
Party to the Lender, and may apply that currency or those currencies in or
towards payment of those amounts. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have. Each Lender agrees promptly to notify the Loan
Parties and the Applicable Agent after making any such setoff.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
--------------
(OTHER THAN AS EXPRESSLY SET FORTH IN SUCH OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Intercreditor Agreements, Security Documents and Sharing
-----------------------------------------------------------
Agreement. (a) Each Lender hereby irrevocably (for itself and its assignees,
---------
participants and successors) authorizes the Administrative Agent to enter into
the U.S. Intercreditor Agreement, the Receivables Intercreditor Agreement and
each U.S. Security Document on behalf of and for the benefit of that Lender and
its assignees, participants and successors, and agrees to be bound by the terms
of the U.S. Intercreditor Agreement and each U.S. Security Document. Each Lender
irrevocably (for itself and its assignees, participants and successors) agrees
that the Administrative Agent shall not enter into or consent to any amendment,
modification, termination or waiver of any provision contained in the U.S.
Intercreditor Agreements, the Receivables Intercreditor Agreement or the U.S.
Security Documents without the prior consent of the Requisite Lenders; provided
--------
that any release of all or substantially all of the U.S. Collateral shall
require the prior consent of each Lender. Each Lender agrees irrevocably (for
itself and its assignees, participants and successors) that it and its
assignees, participants and successors shall not have any right individually to
seek to realize upon the security granted by any U.S. Security Document, it
being understood and agreed that such rights and remedies may be exercised by
the U.S. Collateral Agent for the benefit of the Administrative Agent and the
Lenders and the parties to the U.S. Intercreditor Agreement upon the terms of
the U.S. Security Documents and the U.S. Intercreditor Agreement.
(b) Each Term B Euro Lender and each Revolving Euro Lender hereby
authorizes irrevocably (for itself and its assignees, participants and
successors) the U.K. Administrative Agent to enter into the Euro Intercreditor
Agreement and the Euro Security Documents on behalf of and for the benefit of
that Lender and its assignees, participants and successors, and agrees to be
bound by the terms of the Euro Intercreditor Agreement and the Euro Security
Documents. Each Lender agrees that the U.K. Administrative Agent shall not enter
into or consent to any amendment, modification, termination or waiver of any
provision contained in the Euro Intercreditor Agreement or the Euro Security
Documents without the prior consent of the Requisite Lenders;
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provided that any release of all or substantially all of the Euro Collateral
--------
shall require the prior consent of each Lender. Each Lender irrevocably (for
itself and its assignees, participants and successors) agrees that it and its
assignees, participants and successors shall not have any right individually to
seek to realize upon the security granted by any Euro Security Document, it
being understood and agreed that such rights and remedies may be exercised by
the Euro Collateral Agent for the benefit of each Term B Euro Lender and each
Revolving Euro Lender and the parties to the Euro Intercreditor Agreement upon
the terms of the Euro Security Documents and the Euro Intercreditor Agreement.
(c) Each Lender hereby authorizes the Administrative Agent, the U.K.
Administrative Agent and each Collateral Agent to enter into the Sharing
Agreement on behalf of and for the benefit of that Lender, and agrees to be
bound by the terms of the Sharing Agreement. Each Lender agrees that the
Administrative Agent and the U.K. Administrative Agent shall not enter into or
consent to any amendment, modification, termination or waiver of any provision
contained in the Sharing Agreement without the prior written consent of the
Requisite Lenders; provided, however, that notwithstanding the foregoing, (x)
------------------
the Requisite Dollar Lenders may instruct the Administrative Agent to waive the
occurrence of a Triggering Event or some or all of the consequences thereof
under the Sharing Agreement or terminate the Sharing Agreement in accordance
with its terms and (y) any amendment or modification of the Sharing Agreement
that by its terms adversely affects the Term B Dollar Lenders and the Revolving
Dollar Lenders, on the one hand, or the Term B Euro Lenders and the Revolving
Euro Lenders, on the other hand, differently from the other Lenders shall
require the prior written consent of the Requisite Dollar Lenders and the
Requisite Euro Lenders, respectively.
(d) Upon payment in full of all principal, interest and other amounts due
hereunder and termination of the Commitments and all Letters of Credit hereunder
and this Agreement and termination of and payment in full of any Bank Related
Debt, at the request of the U.S. Borrower, the Administrative Agent shall
request that the Sharing Agent (as defined in the Sharing Agreement) terminate
the Sharing Agreement according to its terms.
SECTION 10.09. Waivers; Amendment. (a) No failure or delay of any Agent,
-------------------
the Issuing Bank or any Lender in exercising any power or right hereunder or
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies which they would otherwise have. No waiver of any provision of this
Agreement or any other Loan Document or consent to any departure by the
Borrowers therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below of this Section 10.09, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether an Agent, any Lender or the
Issuing Bank may have had notice or knowledge of such Default or Event of
Default at the time. No notice or demand on any Loan Party in any case shall
entitle such Loan Party to any other or further notice or demand in similar or
other circumstances.
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(b) Neither this Agreement, any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this
Agreement, pursuant to an agreement or agreements in writing entered into by the
Borrowers and the Requisite Lenders or, in the case of any other Loan Document
(other than the Intercreditor Agreements, the Sharing Agreement and the Security
Documents, which are governed by Section 10.08), pursuant to an agreement or
agreements in writing entered into by the Applicable Agent and the Loan Party or
Loan Parties or other Persons that are parties thereto, in each case with the
consent of the Requisite Lenders; provided, however, that no such agreement
------------------
shall (i) decrease the principal amount of any Loan or LC Disbursement, or
extend the final scheduled maturity date of the Loans or the dates for the
payment of any interest on any Loan or the required date of reimbursement of any
LC Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or LC Disbursement, or postpone the
scheduled date of termination of any Commitment, without the prior written
consent of each Lender affected thereby, (ii) change or extend the Commitment or
decrease the Commitment Fee or LC Fee of any Lender without the prior written
consent of such Lender, (iii) amend or modify the provisions of Section 2.13,
the provisions of this Section, the provisions of Section 10.08, the definitions
of "Requisite Lenders", "Requisite Dollar Lenders" and "Requisite Euro Lenders"
or any other provision of any Loan Document (other than the Intercreditor
Agreements, the Sharing Agreement and the Security Documents, which are governed
by Section 10.08) specifying the number or percentage of Lenders (or Lenders of
any Class) required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder without the prior written consent
of each Lender (or each Lender of such Class, as the case may be),
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(iv) release any Loan Party from its Guarantee under Article IX or a Guarantee
Agreement (except as expressly provided in this Agreement or such Guarantee
Agreement or in connection with any sale of Equity Interests of a Subsidiary
that is consented to by the Requisite Lenders), or limit its liability in
respect of such Guarantee, without the written consent of each Lender, or (v)
change any provisions of any Loan Document (other than the Intercreditor
Agreements, the Sharing Agreement and the Security Documents, which are governed
by Section 10.08) in a manner that by its terms adversely affects the rights in
respect of payments due to Lenders holding Loans of any Class differently from
those holding Loans of any other Class, without the written consent of Lenders
holding a majority in interest of the outstanding Loans and unused Commitments
of each affected Class; provided, further, that no such agreement shall amend,
------------------
modify or otherwise affect the rights or duties of any Agent or the Issuing Bank
hereunder or under any other Loan Document without the prior written consent of
such Agent or the Issuing Bank, as the case may be; provided, further, that (x)
------------------
the consent of the Requisite Term B Dollar Lenders and the Requisite Term B Euro
Lenders shall be required with respect to any amendment that changes the
application of any optional or mandatory prepayments between the Classes of Term
B Loans or between the Term B Loans and the Revolving Loans or to the remaining
amortization payments under the Term B Loans, (y) the consent of the Requisite
Revolving Dollar Lenders and the Requisite Revolving Euro Lenders shall be
required with respect to any amendment after all Term B Loans have been repaid
that changes the application of any optional or mandatory prepayments or
commitment reductions between the Classes of Revolving Loans and (z) the consent
of Revolving Lenders representing more than 50% of the outstanding Revolving
Credit Commitments and Revolving Credit Exposure shall be required with respect
to any amendment, modification, supplement or waiver during the continuation of
a Default or when the conditions in Section 4.02 to any Revolving Credit
Borrowing cannot be satisfied of any condition precedent in Section 4.02 to any
Revolving Credit Borrowing. Notwithstanding the foregoing, any provision of this
Agreement may be amended by an agreement in writing entered into by the Loan
Parties, the Requisite Lenders and the Administrative Agent (and, if their
rights or obligations are affected thereby, the Issuing Bank) if (i) by the
terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
(c) A Revolving Lender may allocate any proportion of its Revolving Credit
Commitment or Revolving Credit Exposure with respect to any waiver, amendment,
modification, consent or any other action pursuant to this Section 10.09 or any
other Loan Document in order to vote separate portions thereof differently with
respect thereto.
(d) Notwithstanding the foregoing, upon the request of the Euro Borrower
and with the written consent of each Revolving Euro Lender, this Agreement may
be amended to provide for the making of Revolving Euro Loans in additional
approved currencies to be made to the Euro Borrower or approved Subsidiaries of
the Euro Borrower on the terms set forth in such amendment.
(e) Notwithstanding anything in this Section 10.09 to the contrary, if the
syndication of the Facilities provided by this Agreement has not been completed
on the Effective Date and the Administrative Agent and the Syndication Agent
determine that changes to the terms of this Agreement are advisable in order to
ensure a successful syndication of such Facilities, this Agreement may be
amended to the extent provided in the commitment letter dated January 27, 2003
between CCSC, the Administrative Agent and the Syndication Agent. With respect
to such changes, the Loan Parties and the Lenders agree that, notwithstanding
anything to the contrary in this Section 10.09 or otherwise, no consent of the
Loan Parties to amend or modify the terms of this Agreement or any other Loan
Document as provided in the previous sentence is required and no consent of any
Lender is required to amend or modify the terms of this Agreement or any other
Loan Documents as provided in the previous sentence so long as such amendments
and modifications will not adversely affect the Lenders.
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SECTION 10.10. Interest Rate Limitation. (a) Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan or
participation but were not payable as a result of the operation of this Section
shall be cumulated and the interest and Charges payable to such Lender in
respect of other Loans or participations or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
(b) In order to fulfill the obligations of articles L.313-1 and L.313-2 of
the French consumer code ("Code de la Consommation"), Citibank International plc
-----------------------
represents to the Euro Borrower, who accepts such representation, that the
effective global rate ("taux effectif global") calculated in accordance with the
--------------------
articles referred to above, on the basis of a 360-day year, is 6.9555% per annum
in respect of Term B Euro Loans and 5.33625% in respect of Revolving Euro Loans.
The effective global rate ("taux effectif global") was calculated on the basis
---------------------
of utilization of the total Revolving Euro Commitments and the Term B Euro
Commitments on February 26, 2003, and LIBO Rate for an Interest Period of one
month on February 24, 2003 of 2.7055%, in the case of Term B Euro Loans, and
1.33625%, in the case of Revolving Euro Loans. Given the floating nature of such
Loans, such rate is given on an indicative basis as of the Effective Date only
and shall not be binding on the Lenders in the future.
SECTION 10.11. Entire Agreement. This Agreement and the other Loan
-----------------
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Notwithstanding the foregoing, the commitment letter and the fee
letter dated as of January 28, 2003 between CCSC and the Administrative Agent
and the Syndication Agent shall survive and be in full force and effect. Nothing
in this Agreement or in the other Loan Documents, expressed or implied, is
intended to confer upon any party other than the parties hereto and thereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement or the other Loan Documents.
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SECTION 10.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
--------------------
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.12.
SECTION 10.13. Severability. In the event any one or more of the provisions
------------
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
SECTION 10.14. Counterparts. This Agreement may be executed in counterparts
------------
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 10.03.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 10.15. Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.16. Jurisdiction; Consent to Service of Process. (a) Each Loan
--------------------------------------------
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 the other Loan Documents, 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 the
Agents, the Syndication Agent, the Issuing Bank or any Lender may otherwise have
to bring any action or proceeding relating to this Agreement or the other Loan
Documents against any Loan Party or its properties in the courts of any
jurisdiction.
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(b) Each Loan 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 or the other Loan Documents in any
New York State or Federal court referred to in paragraph (a) of this Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of process
in the manner provided for notices in Section 10.01. Nothing in this Agreement
or any other Loan Document will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
(d) By the execution and delivery of this Agreement, the Euro Borrower and
each Subsidiary Borrower acknowledges that it has by separate written
instrument, designated and appointed CT Corporation System, 0000 Xxxxxxxx, Xxx
Xxxx, X.X. 00000 (and any successor entity), as its authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
this Agreement or the Loan Documents that may be instituted in any federal or
state court in the State of New York.
(e) The Euro Borrower and each Subsidiary Borrower, to the extent that it
has or hereafter may acquire any immunity (sovereign or otherwise) from any
legal action, suit or proceeding, from jurisdiction of any court or from setoff
or any legal process (whether service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
with respect to itself or any of its property or assets, hereby waives and
agrees not to plead or claim such immunity in respect of its obligations under
this Agreement and the other Loan Documents (it being understood that the
waivers contained in this paragraph (e) shall have the fullest extent permitted
under the Foreign Sovereign Immunities Act of 1976, as amended, and are intended
to be irrevocable and not subject to withdrawal for the purposes of such Act).
SECTION 10.17. Judgments Relating to Euro Borrower. (a) If, for the purpose
-----------------------------------
of obtaining judgment in any court, it is necessary to convert a sum owing
hereunder in one currency into another currency, each party hereto agrees, to
the fullest extent that it may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures in the
relevant jurisdiction the first currency could be purchased with such other
currency on the Business Day immediately preceding the day on which final
judgment is given.
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(b) The obligations of the Euro Borrower and each Subsidiary Borrower in
respect of any sum due to any party hereto or any holder of the obligations
owing hereunder (the "Applicable Creditor") shall, notwithstanding any judgment
-------------------
in a currency (the "Judgment Currency") other than the currency in which such
------------------
sum is stated to be due hereunder (the "Agreement Currency"), be discharged only
------------------
to the extent that, on the Business Day following receipt by the Applicable
Creditor of any sum adjudged to be so due in the Judgment Currency, the
Applicable Creditor may in accordance with normal banking procedures in the
relevant jurisdiction purchase the Agreement Currency with the Judgment
Currency; if the amount of the Agreement Currency so purchased is less than the
sum originally due to the Applicable Creditor in the Agreement Currency, such
Borrower agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify the Applicable Creditor against such loss; provided that if the
--------
amount of the Agreement Currency so purchased exceeds the sum originally due to
the Applicable Creditor, the Applicable Creditor agrees to remit such excess to
the Euro Borrower. The obligations of the Euro Borrower contained in this
Section 10.17 shall survive the termination of this Agreement and the payment of
all other amounts owing hereunder.
SECTION 10.18. Confidentiality. (a) The Loan Parties, the Lenders, the
---------------
Administrative Agent and the Syndication Agent hereby agree that each of the
Loan Parties, the Lenders, the Administrative Agent and the Syndication Agent
and each of their respective officers, directors, employees, agents,
accountants, attorneys and other advisors are, and have been from the
commencement of discussions with respect to the facilities established by this
Agreement (the "Facilities"), permitted to disclose to any and all Persons,
----------
without limitation of any kind, the structure and "tax aspects" (as such terms
are used in Code Sections 6011, 6111 and 6112 and the regulations promulgated
thereunder) of the Facilities, and all materials of any kind (including opinions
or other tax analyses) that are or have been provided to the Loan Parties, such
Lender, the Administrative Agent or the Syndication Agent related to such
structure and tax aspects. In this regard, each of the Loan Parties, the
Lenders, the Administrative Agent and the Syndication Agent acknowledges and
agrees that its disclosure of the structure or tax aspects of the Facilities is
not limited in any way by an express or implied understanding or agreement, oral
or written (whether or not such understanding or agreement is legally binding).
Furthermore, each of the Loan Parties, the Lenders, the Administrative Agent and
the Syndication Agent acknowledges and agrees that it does not know or have
reason to know that its use or disclosure of information relating to the
structure or tax aspects of the Facilities is limited in any other manner (such
as where the Facilities are claimed to be proprietary or exclusive) for the
benefit of any other Person. To the extent that disclosure of the structure or
tax aspects of the Facilities by the Loan Parties, the Administrative Agent, the
Syndication Agent or the Lenders is limited by any existing agreement between
the Loan Parties, the Administrative Agent, the Syndication Agent or the
Lenders, such limitation is agreed to be void ab initio and such agreement is
---------
hereby amended to permit disclosure of the structure and tax aspects of the
Facilities as provided in this paragraph (a).
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(b) Subject to paragraph (a) of this Section 10.18, none of the
Administrative Agent, the Syndication Agent nor any Lender may disclose to any
Person any confidential, proprietary or non-public information of the Loan
Parties furnished to the Administrative Agent, the Syndication Agent or the
Lenders by the Loan Parties (such information being referred to collectively
herein as the "Loan Party Information"), except that each of the Administrative
----------------------
Agent, the Syndication Agent and the Lenders may disclose Loan Party Information
(i) to its and its affiliates' employees, officers, directors, agents,
accountants, attorneys and other advisors (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Loan Party Information and instructed to keep such Loan Party Information
confidential on substantially the same terms as provided herein), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (iv)
to any other party to this Agreement, (v) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (vi) subject to an agreement
containing provisions substantially the same as those of this Section 10.18(b),
to any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement, (vii) to
the extent such Loan Party Information (A) is or becomes generally available to
the public on a nonconfidential basis other than as a result of a breach of this
Section 10.18(b) by the Administrative Agent, the Syndication Agent or such
Lender, or (B) is or becomes available to the Administrative Agent, the
Syndication Agent or such Lender on a nonconfidential basis from a source other
than the Loan Parties and (viii) with the consent of the Loan Parties. Nothing
in this provision shall imply that any party has waived any privilege it may
have with respect to advice it has received.
SECTION 10.19. SSB Direct Website Communications.
---------------------------------
(a) Delivery. (i) Each Loan Party hereby agrees that it will provide to the
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Administrative Agent all information, documents and other materials that it is
obligated to furnish to the Administrative Agent pursuant to this Agreement and
any other Loan Document, including, without limitation, all notices, requests,
financial statements, financial and other reports, certificates and other
information materials, but excluding any such communication that (A) relates to
a request for a new, or a conversion of an existing, borrowing or other
extension of credit (including any election of an interest rate or interest
period relating thereto), (B) relates to the payment of any principal or other
amount due under this Agreement prior to the scheduled date therefor, (C)
provides notice of any Default or Event of Default under this Agreement or (D)
is required to be delivered to satisfy any condition precedent to the
effectiveness of this Agreement and/or any borrowing or other extension of
credit hereunder (all such non-excluded communications collectively, the
"Communications"),
--------------
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by transmitting the Communications in an electronic/soft medium and in a format
acceptable to the Administrative Agent to xxxxxxxxxxxxxxx@xxxx.xxx. In addition,
------------------------
each Loan Party agrees to continue to provide the Communications to the
Administrative Agent in the manner specified in this Agreement but only to the
extent requested by the Administrative Agent. Receipt of the Communications by
the Administrative Agent at the e-mail address set forth above shall constitute
effective delivery of the Communications to the Administrative Agent for
purposes of this Agreement and any other Loan Documents. Nothing in this Section
10.19 shall prejudice the right of the Agents, the Syndication Agent, the Joint
Lead Arrangers or any Lender to give any notice or other communication pursuant
to this Agreement or any other Loan Document in any other manner specified in
this Agreement or any other Loan Document.
(ii) Each Lender agrees that receipt of e-mail notification that such
Communications have been posted pursuant to paragraph (b) below at the e-mail
address(es) set forth on Schedule 2.01 opposite such Lender's name or pursuant
--------------
to the notice provisions of any assignment and acceptance agreement shall
constitute effective delivery of the Communications to such Lender for purposes
of this Agreement and any other Loan Document. Each Lender further agrees to
notify the Administrative Agent in writing (including by electronic
communication) promptly of any change in its e-mail address or any extended
disruption in its internet delivery services.
(b) Posting. Each Loan Party further agrees that the Administrative Agent
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may make the Communications available to the Lenders by posting the
Communications on "e-Disclosure" (the "Platform"), the Administrative Agent's
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internet delivery system that is part of SSB Direct, Global Fixed Income's
primary web portal (the "Primary Portal"). The Primary Portal is secured with a
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dual firewall and a User ID/Password Authorization System and the Platform is
secured through a single user per deal authorization method whereby each user
may access the Platform only on a deal-by-deal basis. Each Loan Party
acknowledges that the distribution of Communications through an electronic
medium is not necessarily secure and that there are confidentiality and other
risks associated with such distribution
(c) The Communications transmitted pursuant to this Section 10.19 and the
Platform are provided "as is" and "as available." Neither the Administrative
Agent nor any of its Related Parties warrants the accuracy, adequacy or
completeness of the Communications or the Platform and each Citigroup Party
expressly disclaims liability for errors or omissions in the Communications or
the Platform. No warranty of any kind, express, implied or statutory, including
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by any Citigroup Party in connection with the
Communications or the Platform.
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(d) Termination. The provisions of this Section 10.19 shall automatically
-----------
terminate on the date that Citicorp North America, Inc. or any of its Affiliates
ceases to be the Administrative Agent under this Agreement.
SECTION 10.20. Euro Collateral Agent as Joint Creditor. Each of the Loan
----------------------------------------
Parties and each of the Lenders agree that the Euro Collateral Agent (and any
agent or sub-agent of the Euro Collateral Agent) shall be a joint creditor
(together with the relevant Lender) of each and every obligation of the Loan
Parties toward each of the Lenders under or in connection with the Loan
Documents, and that accordingly the Euro Collateral Agent (and any agent or
sub-agent of the Euro Collateral Agent) will have its own independent right to
demand performance by the Loan Parties of those obligations. However, any
discharge of any such obligation to the Euro Collateral Agent or the relevant
Lender shall, to the same extent, discharge the corresponding obligation owing
(or any agent or sub-agent of the Euro Collateral Agent) to the other.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CROWN HOLDINGS, INC., as Parent Guarantor
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President
& Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
CROWN INTERNATIONAL HOLDINGS, INC.,
as Parent Guarantor
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
CROWN CORK & SEAL COMPANY, INC.,
as Parent Guarantor
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President
& Chief Financial Officer
By: /s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Assistant Secretary
-172-
CROWN CORK & SEAL AMERICAS, INC.,
as the U.S. Borrower
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Treasurer
CROWN EUROPEAN HOLDINGS S.A.,
as the Euro Borrower and Guarantor
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Administrateur
CROWN UK HOLDINGS LIMITED,
as U.K. Borrower
By: /s/ Xxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Director
CARNAUDMETALBOX DEUTSCHLAND GMBH,
as German Borrower
By: /s/ Xxxxx Xxxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxxx
Title:
-173-
CITICORP NORTH AMERICA, INC.,
as Administrative Agent and as Lender
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
CITIBANK INTERNATIONAL plc,
as U.K. Administrative Agent and Lender
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Vice President
DEUTSCHE BANK SECURITIES INC.,
as Syndication Agent and Joint
Lead Arranger and Joint Bookrunner
By: /s/ Xxxxxx Xxxx
----------------------------------
Name: Xxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
XXXXXXX XXXXX XXXXXX INC.,
as Syndication Agent, Joint Lead
Arranger and Joint Bookrunner
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
-174-
ABN AMRO INCORPORATED , as Joint Bookrunner
By: /s/ Xxxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Managing Director
ABN AMRO BANK N.V., as Documentation Agent
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
DEUTSCHE BANK AG, New York Branch, as Lender
By: /s/ Xxxx Xxx Xxxxx
------------------------------------
Name: Xxxx Xxx Xxxxx
Title: Managing Director
ABN AMRO BANK N.V., as Lender
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
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By: /s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Assistant Vice President
CREDIT AGRICOLE INDOSUEZ, as Lender
By: /s/ Xxxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President
By: /s/ Xxxx Flecheux
------------------------------------
Name: Xxxx Flecheux
Title: First Vice President
THE FOOTHILL GROUP, INC., as Lender
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President
FOOTHILL INCOME TRUST, L.P., as Lender
By: FIT GP, LLC, Its Gen Partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Managing Member
XXXXXXXXX GROUP, INC., as Lender
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President
& Chief Financial Officer
-176-
GREENWICH INTERNATIONAL LTD., as Lender
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
NATEXIS BANQUES POPULAIRES, as Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
By: /s/ X. X. Xxxxxx
-------------------------------
Name: X. X. Xxxxxx
Title: Vice President
