EXECUTION COPY
GLOBAL PARTICIPATION AND
PROCEEDS SHARING AGREEMENT
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This GLOBAL PARTICIPATION AND PROCEEDS SHARING AGREEMENT (as amended,
amended and restated or otherwise modified from time to time in accordance with
the terms hereof, herein called this "Agreement") is dated as of February 26,
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2003 among (i) CITICORP NORTH AMERICA, INC., as administrative agent (in such
capacity, together with its successors and assigns, the "Bank Agent") for the
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lenders from time to time party to the Credit Agreement (as defined below), (ii)
CITIBANK INTERNATIONAL PLC, as UK administrative agent (in such capacity,
together with its successors and assigns, the "UK Agent") for the lenders from
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time to time party to the Credit Agreement, (iii) XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as trustee (in such capacity, together with its successors
and assigns, the "Second Priority Notes Trustee") for the holders of Second
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Priority Notes (as defined below) issued under the Second Priority Notes
Indenture (as defined below), (iv) XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION, as trustee (in such capacity, together with its successors and
assigns, the "Third Priority Notes Trustee") for the holders of Third Priority
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Notes (as defined below) issued under the Third Priority Notes Indenture (as
defined below), (v) CITICORP NORTH AMERICA, INC., as collateral agent under the
U.S. Intercreditor Agreement (as defined below), (vi) CITICORP TRUSTEE COMPANY
LIMITED, as collateral agent under the Euro Intercreditor Agreement, (vii)
CITICORP NORTH AMERICA, INC., as Sharing Agent (as defined below), and (viii)
the other persons who may become parties to this Agreement from time to time
pursuant to and in accordance with Section 9 of this Agreement.
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R E C I T A L S
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1. On the date hereof, Crown European Holdings SA ("Crown Euroco"), an
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indirect French subsidiary of Crown Cork & Seal Company, Inc. ("CCSC"), is
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issuing $1.085 billion in aggregate principal amount of Second Priority Dollar
Notes and euro 285 million in aggregate principal amount of Second Priority Euro
Notes, in each case under an Indenture dated as of the date hereof among Crown
Euroco, the guarantors named therein and the Second Priority Notes Trustee (as
amended, amended and restated, supplemented, refinanced, replaced or otherwise
modified from time to time as permitted by the Credit Agreement, the "Second
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Priority Notes Indenture").
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2. On the date hereof, Crown Euroco is issuing $725 million in aggregate
principal amount of Third Priority Notes under an Indenture dated as of the date
hereof among Crown Euroco, the guarantors named therein and the Third Priority
Notes Trustee (as amended, amended and restated, supplemented, refinanced,
replaced or otherwise modified from time to time as permitted by the Credit
Agreement, the "Third Priority Notes Indenture").
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3. On the date hereof, Crown Cork & Seal Americas, Inc., a wholly owned
subsidiary of CCSC ("Crown Usco"), Crown Holdings, Inc. ("Crown Holdings"),
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Crown International Holdings, Inc. ("Crown International"), CCSC, Crown Euroco
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and certain subsidiary borrowers have entered into a senior secured credit
agreement dated as of the date hereof (as amended, amended and restated,
supplemented, refinanced, replaced or otherwise modified from time to time, the
"Credit Agreement", which term shall also include and refer to any increase in
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the amount of indebtedness under the Credit Agreement to the extent permitted by
the Second Priority Notes Indenture and the Third Priority Notes Indenture and
one or more successor or replacement facilities whether or not with a different
group of agents or lenders and whether or not with different obligors upon the
Bank Agent's acknowledgment of the termination of the predecessor Credit
Agreement).
4. It is contemplated that, from time to time, to the extent permitted by
the Credit Agreement, the Second Priority Notes Indenture and the Third Priority
Notes Indenture, Crown Euroco may issue certain Additional Second Priority
Indebtedness (as defined below) (any indenture, debenture, note, guaranty, loan
agreement, credit agreement, purchase agreement or other document executed by
Crown Euroco or any subsidiary in connection with the issuance of any such
Additional Second Priority Indebtedness is referred to herein as an "Additional
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Second Priority Indebtedness Document" individually and the "Additional Second
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Priority Indebtedness Documents" collectively and any trustee or like
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representative of the holders of any Additional Second Priority Indebtedness is
referred to herein as an "Additional Second Priority Indebtedness
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Representative"), which Additional Second Priority Indebtedness Documents will
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be secured, by all or any part of the Collateral (as defined below) pursuant to
the Security Documents (as defined below) and have the priority set forth in the
Intercreditor Agreements (as defined below); provided that for any holder of any
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Additional Second Priority Indebtedness to receive the benefit of such security,
it shall cause its Additional Second Priority Indebtedness Representative to
execute and deliver to the Sharing Agent an acknowledgment to this Agreement (in
the form attached hereto) agreeing to be bound by the terms hereof.
5. It is contemplated that, from time to time, to the extent permitted by
the Credit Agreement, the Second Priority Notes Indenture and the Third Priority
Notes Indenture, Crown Euroco may issue certain Additional Third Priority
Indebtedness (as defined below) (any indenture, debenture, note, guaranty, loan
agreement, credit agreement, purchase agreement or other document executed by
Crown Euroco or any subsidiary in connection with the issuance of any such
Additional Third Priority Indebtedness is referred to herein as an "Additional
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Third Priority Indebtedness Document" individually and the "Additional Third
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Priority Indebtedness Documents" collectively and any trustee or like
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representative of the holders of any Additional Third Priority Indebtedness is
referred to herein as an "Additional Third Priority Indebtedness
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Representative"), which Additional Third Priority Indebtedness Documents will be
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secured, by all or any part of the Collateral pursuant to the Security Documents
and have the priority set forth in the Intercreditor Agreements;provided that
for any holder of any Additional Third Priority Indebtedness to receive the
benefit of such security, it shall cause its Additional Third Priority
Indebtedness Representative to execute and deliver to the Sharing Agent an
acknowledgment to this Agreement (in the form attached hereto) agreeing to be
bound by the terms hereof.
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6. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown Holdings or any of its subsidiaries may from time to time enter
into one or more Bank Related Hedging Agreements (as defined below) with any
counterparty that was the Bank Agent, the UK Agent or a Lender or Affiliate
thereof or any other Person permitted under the Credit Agreement at the time
such Bank Related Hedging Agreement was entered into (individually, a "Bank
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Related Hedging Exchanger" and, collectively, the "Bank Related Hedging
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Exchangers") and it is desired that the obligations of Crown Holdings or such
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subsidiary under such Bank Related Hedging Agreements, including the obligation
to make payments in the event of early termination thereunder (all such
obligations being the "Bank Related Hedging Obligations"), be secured by all or
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any part of the Collateral pursuant to the Security Documents; provided that for
any Bank Related Hedging Exchanger to receive the benefit of such security, it
shall execute and deliver to the Sharing Agent an acknowledgment to this
Agreement (in the form attached hereto) agreeing to be bound by the terms hereof
at any time prior to the payment in full of the First Priority Indebtedness.
7. It is contemplated that, to the extent permitted by the Credit
Agreement, Crown Holdings or any of its subsidiaries may from time to time enter
into one or more Bank Related Cash Management Agreements (as defined below) with
any counterparty that was the Bank Agent, the UK Agent or a Lender or Affiliate
thereof or any other Person permitted under the Credit Agreement at the time
such Bank Related Cash Management Agreement was entered into (individually, a
"Bank Related Cash Management Exchanger" and, collectively, the "Bank Related
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Cash Management Exchangers") and it is desired that the obligations of Crown
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Holdings or any of its subsidiaries under such Bank Related Cash Management
Agreements, including the obligation to make payments in the event of early
termination thereunder (all such obligations being the "Bank Related Cash
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Management Obligations"), be secured by all or any part of the Collateral
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pursuant to the Security Documents; provided that for any Bank Related Cash
Management Exchanger desiring the benefit of such security, it shall execute and
deliver to the Sharing Agent an acknowledgment to this Agreement (in the form
attached hereto) agreeing to be bound by the terms hereof at any time prior to
the payment in full of the First Priority Indebtedness.
8. It is contemplated that, from time to time, to the extent permitted by
the Credit Agreement, the Second Priority Notes Indenture and the Third Priority
Notes Indenture, Crown Euroco or one or more of its subsidiaries may issue,
guarantee or otherwise become an obligor under certain Additional Unsecured
Indebtedness (as defined below) (any indenture, debenture, note, guaranty, loan
agreement, credit agreement, purchase agreement or other document executed by
Crown Euroco in connection with the issuance of any such Additional Unsecured
Indebtedness is referred to herein as an "Additional Unsecured Indebtedness
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Document" individually and the "Additional Unsecured Indebtedness Documents"
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collectively and any trustee or like representative of the holders of any
Additional Unsecured Indebtedness is referred to herein as an "Additional
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Unsecured Indebtedness Representative"), which Additional Unsecured Indebtedness
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will be unsecured. One or more items of Covered Debt require, as a condition to
the issuance thereof, that the Additional Unsecured Indebtedness Representative
of certain Additional Unsecured Indebtedness become a party to this Agreement.
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9. The Bank Agent, the U.K. Agent, the Second Priority Notes Trustee, the
Third Priority Notes Trustee, any Additional Second Priority Indebtedness
Representative, any Additional Third Priority Indebtedness Representative, any
Bank Related Cash Management Exchanger, any Bank Related Hedging Exchanger and
the U.S. Collateral Agent are or will become a party to a U.S. Intercreditor and
Collateral Agency Agreement, dated as of the date hereof (the "U.S.
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Intercreditor Agreement"), pursuant to which such parties agreed or will agree,
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as the case may be, to their relative priorities with respect to U.S. Collateral
(as defined therein).
10. The UK Agent, the Second Priority Notes Trustee, the Third Priority
Notes Trustee, any Additional Second Priority Indebtedness Representative, any
Additional Third Priority Indebtedness Representative, any Bank Related Cash
Management Exchanger, any Bank Related Hedging Exchanger and the Euro Collateral
Agent are or will become a party to a Euro Intercreditor and Collateral Agency
Agreement, dated as of the date hereof (the "Euro Intercreditor Agreement" and,
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together with the U.S Intercreditor Agreement, the "Intercreditor Agreements"),
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pursuant to which such parties agreed or will agree, as the case may be, to
their relative priorities with respect to Euro Collateral (as defined therein).
11. (a) The Second Priority Notes Trustee (for its benefit and for the
benefit of the respective holders of the Second Priority Notes), the Third
Priority Notes Trustee (for its benefit and for the benefit of the respective
holders of the Third Priority Notes) and the Bank Agent and UK Agent (for their
respective benefit and for the benefit of the Lenders and other agents under the
Credit Agreement), (b) in the event any Bank Related Hedging Obligations are to
be secured by the Security Documents, each Bank Related Hedging Exchanger party
to any Bank Related Hedging Agreement, (c) in the event any Bank Related Cash
Management Obligations are to be secured by the Security Documents, each Bank
Related Cash Management Exchanger party to any Bank Related Cash Management
Agreement, (d) in the event any obligations in respect of any Additional Second
Priority Indebtedness are to be secured by the Security Documents, the
Additional Second Priority Indebtedness Representative in respect of such
Additional Second Priority Indebtedness (for its benefit and for the benefit of
the holders of such Additional Second Priority Indebtedness), (e) in the event
any obligations in respect of any Additional Third Priority Indebtedness are to
be secured by the Security Documents, the Additional Third Priority Indebtedness
Representative in respect of such Additional Third Priority Indebtedness (for
its benefit and for the benefit of the holders of such Additional Third Priority
Indebtedness) and (f) in the event any Additional Unsecured Indebtedness is
issued, the Additional Unsecured Indebtedness Representative in respect of such
Additional Unsecured Indebtedness (for its benefit and for the benefit of the
holders of such Additional Unsecured Indebtedness) (the parties described in
clauses (a) through (f) of this Recital, collectively, the "Covered Parties")
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desire to set forth (i) certain provisions regarding the appointment, duties and
responsibilities of the Sharing Agent; (ii) their agreement as to the payment of
all Proceeds from and after the occurrence of a Triggering Event; and (iii)
their agreement as to the sharing of Proceeds from and after the occurrence of a
Triggering Event.
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12. Each of the Covered Parties is providing the financing contemplated by
this Agreement in reliance upon each other Covered Party entering into this
Agreement.
A G R E E M E N T
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NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
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The following capitalized terms used herein and not otherwise defined
herein shall have the definitions set forth below. Terms not defined herein
shall have the meanings ascribed to such terms in the Intercreditor Agreements.
"Additional Second Priority Indebtedness" means unsubordinated indebtedness
issued or incurred on or after the date hereof and not owed to Crown Holdings or
any of its subsidiaries, to the extent permitted to be incurred by the Credit
Agreement, the Second Priority Notes Indenture and the Third Priority Notes
Indenture, which indebtedness is secured by a second priority Lien that is
subject and subordinated to the Liens securing the First Priority Indebtedness
in the manner described in the Intercreditor Agreements on all or any portion of
the Collateral.
"Additional Second Priority Indebtedness Documents" has the meaning given
to such term in the Recitals.
"Additional Third Priority Indebtedness" means unsubordinated indebtedness
issued or incurred on or after the date hereof and not owed to Crown Holdings or
any of its subsidiaries, to the extent permitted to be incurred by the Credit
Agreement, the Second Priority Notes Indenture and the Third Priority Notes
Indenture, which indebtedness is secured by a third priority Lien that is
subject and subordinated to the Liens securing the First Priority Indebtedness
and Second Priority Indebtedness in the manner described in the Intercreditor
Agreements on all or any portion of the Collateral.
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"Additional Third Priority Indebtedness Documents" has the meaning given to
such term in the Recitals.
"Additional Unsecured Indebtedness" means unsubordinated indebtedness
issued or incurred on or after the date hereof and not owed to Crown Holdings or
any of its subsidiaries and issued or guaranteed by Crown Euroco or any of its
subsidiaries, or under which Crown Euroco or any of its subsidiaries is an
obligor, to the extent permitted to be incurred by the Credit Agreement and
which one or more items of Covered Debt requires the agent or trustee in respect
thereof to become a party to this Agreement, which indebtedness is unsecured.
"Additional Unsecured Indebtedness Documents" has the meaning given to such
term in the Recitals.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person.
"Agents" shall mean the Bank Agent, the UK Agent, the Second Priority
Agents, the Third Priority Agents, any Additional Unsecured Indebtedness
Representative(s) and the Collateral Agents.
"Aggregate Collateral Proceeds Second Priority Designated Deposits" means
the Aggregate Collateral Proceeds Sharing Account Deposits, less the
distributions of Collateral Proceeds made in respect of First Priority Covered
Debt pursuant to Section 6(b)(i)(A) of this Agreement.
"Aggregate Collateral Proceeds Sharing Account Deposits" means the
aggregate amount of all funds, assets or other property representing Collateral
Proceeds from time to time deposited in the Sharing Account, less the costs,
expenses and indemnity paid out of the Collateral Proceeds in the Sharing
Account from time to time to the Sharing Agent in accordance with the terms of
this Agreement.
"Aggregate Collateral Proceeds Third Priority Designated Deposits" means
the Aggregate Collateral Proceeds Sharing Account Deposits, less the
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distributions of Collateral Proceeds made in respect of the First Priority
Covered Debt pursuant to Section 6(b)(i)(A) and the Second Priority Covered Debt
pursuant to Section 6(b)(i)(B) of this Agreement.
"Aggregate Debt Proceeds Sharing Account Deposits" means the aggregate
amount of all funds, assets or other property representing Debt Proceeds from
time to time deposited in the Sharing Account, less the costs, expenses and
indemnity paid out of the Debt Proceeds in the Sharing Account from time to time
to the Sharing Agent in accordance with the terms of this Agreement.
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"Bank Related Cash Management Agreements" means agreements of Crown
Holdings or any of its subsidiaries under the Credit Agreement arising from
treasury, depository and cash management services provided by one or more
Persons that were either the Bank Agent, the U.K. Agent or a Lender or Affiliate
thereof or any other Person permitted under the Credit Agreement at the time
that such Bank Related Cash Management Agreement was entered into.
"Bank Related Debt" means, collectively, the Bank Related Cash Management
Obligations and the Bank Related Hedging Obligations.
"Bank Related Debt Agreements" means, collectively, the Bank Related Cash
Management Agreements and the Bank Related Hedging Agreements.
"Bank Related Hedging Agreements" means, collectively, each Hedging
Agreement of Crown Holdings or any of its subsidiaries entered into with any
counterparty that was either the Bank Agent, the U.K. Agent or a Lender or an
Affiliate thereof or any other Person permitted under the Credit Agreement at
the time such Hedging Agreement was entered into.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state or non-U.S. law or statute for the supervision, administration
or relief of debtors including, without limitation, bankruptcy or insolvency
laws.
"Collateral" means the U.S. Collateral, the Euro Collateral and the
Additional Bank Collateral and any other property or asset securing any Covered
Debt.
"Collateral Proceeds" means any payment or proceeds (whether in the form of
cash or property or other assets but net of amounts payable to the Collateral
Agents as compensation, expense reimbursement or indemnification payments
pursuant to the Intercreditor Agreements) received or receivable by any Covered
Party or any Agent in respect of any Obligations under any Covered Debt, other
than any such payment or proceeds to the extent that, and only to the extent
that, after giving effect thereto the value of the remaining Collateral (valued
by the Sharing Agent in its sole discretion by any method of its choice at the
greater of book value and Fair Market Value) would be zero. Notwithstanding the
foregoing, cash paid as an interest payment (and not from the collection, sale
or disposition of any Collateral) on Covered Debt that is not Matured Covered
Debt shall not be Collateral Proceeds but shall be Debt Proceeds.
"Collateral Proceeds Distribution Entitlement" means:
(i) with respect to any Matured First Priority Covered Debt, an amount
equal to the lesser of (a) the Total Obligations then outstanding under
such Matured First Priority Covered Debt and (b) (I) the product of (y) the
Aggregate Collateral Proceeds Sharing Account Deposits and (z) such Matured
First Priority Covered Debt's Collateral Proceeds Pro Rata Share, less (II)
the Prior Collateral Proceeds Distribution Amount in respect of such
Matured First Priority Covered Debt;
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(ii) with respect to any Matured Second Priority Covered Debt, an
amount equal to the lesser of (a) the Total Obligations then outstanding
under such Matured Second Priority Covered Debt and (b) (I) the product of
(y) the Aggregate Collateral Proceeds Second Priority Designated Deposits
and (z) such Matured Second Priority Covered Debt's Collateral Proceeds Pro
Rata Share, less (II) the Prior Collateral Proceeds Distribution Amount in
respect of such Matured Second Priority Covered Debt;
(iii) with respect to any Matured Third Priority Covered Debt, an
amount equal to the lesser of (a) the Total Obligations then outstanding
under such Matured Third Priority Covered Debt and (b) (I) the product of
(y) the Aggregate Collateral Proceeds Third Priority Designated Deposits
and (z) such Matured Third Priority Covered Debt's Collateral Proceeds Pro
Rata Share, less (II) the Prior Collateral Proceeds Distribution Amount in
respect of such Matured Third Priority Covered Debt; and
(iv) with respect to Matured Unsecured Covered Debt, zero (0).
"Collateral Proceeds Pro Rata Share" means:
(i) with respect to any First Priority Covered Debt, a fraction (a)
the numerator of which is the principal amount of such First Priority
Covered Debt plus the face amount of all letters of credit (whether or not
drawn) on the Triggering Event Date and (b) the denominator of which is the
aggregate principal amount of all Currently Outstanding First Priority
Covered Debt plus the face amount of all letters of credit (whether or not
drawn) on the Triggering Event Date;
(ii) with respect to any Second Priority Covered Debt, (a) prior to
the time that the Total Obligations in respect of First Priority Covered
Debt are paid in full and satisfied, zero (0) and (b) from and after the
time that the Total Obligations in respect of First Priority Covered Debt
are paid in full and satisfied, a fraction (a) the numerator of which is
the principal amount of such Second Priority Covered Debt on the Triggering
Event Date and (b) the denominator of which is the aggregate principal
amount of all Currently Outstanding Second Priority Covered Debt on the
Triggering Event Date;
(iii) with respect to any Third Priority Covered Debt, (a) prior to
the time that the Total Obligations in respect of First Priority Covered
Debt and Second Priority Covered Debt are paid in full and satisfied, zero
(0) and (b) from and after the time that the Total Obligations in respect
of First Priority Covered Debt and Second Priority Covered Debt are paid in
full and satisfied, a fraction (a) the numerator of which is the principal
amount of such Third Priority Covered Debt on the Triggering Event Date and
(b) the denominator of which is the aggregate principal amount of all
Currently Outstanding Third Priority Covered Debt on the Triggering Event
Date; and
(iv) with respect to Unsecured Covered Debt, zero (0).
For purposes of determining the Collateral Proceeds Pro Rata Share, the
Sharing Agent will use the Dollar Equivalent (as defined in the Credit
Agreement) of the principal amount of Covered Debt as of the Triggering Event
Date.
"Covered Debt" means any First Priority Indebtedness, any Second Priority
Indebtedness, any Third Priority Indebtedness and any Additional Unsecured
Indebtedness.
"Covered Parties" has the meaning given to such term in the Recitals.
"Credit Documents" means the Credit Agreement, each guaranty of the
Obligations thereunder, the Security Documents and any other document executed
by Crown Usco, Crown Euroco, CCSC, Crown Holdings, Crown International or any
Pledgor in connection with the Credit Agreement, in each case, as amended,
amended and restated, supplemented, refinanced, replaced or otherwise modified
from time to time.
"Currently Outstanding Covered Debt" means, as of any date of
determination, all Covered Debt which continues to be entitled to receive
distributions from the Sharing Account pursuant to Section 6(b)(i) or 6(b)(ii)
of this Agreement.
"Currently Outstanding First Priority Covered Debt" means, as of any date
of determination, all First Priority Covered Debt which continues to be entitled
to receive distributions from the Sharing Account pursuant to Section 6(b)(i)(A)
of this Agreement.
"Currently Outstanding Second Priority Covered Debt" means, as of any date
of determination, all Second Priority Covered Debt which continues to be
entitled to receive distributions from the Sharing Account pursuant to Section
6(b)(i)(B) of this Agreement.
"Currently Outstanding Third Priority Covered Debt" means, as of any date
of determination, all Third Priority Covered Debt which continues to be entitled
to receive distributions from the Sharing Account pursuant to Section 6(b)(i)(C)
of this Agreement.
"Debt Proceeds" means any payment (whether in the form of cash or property
or other assets) received or receivable by any Covered Party or Agent in respect
of any Obligations under any Covered Debt (other than Collateral Proceeds) or in
exchange for or in connection with the refinancing of Covered Debt.
"Debt Proceeds Distribution Entitlement" means, with respect to any Matured
Covered Debt, an amount equal to the lesser of (a) the Total Obligations then
outstanding under such Matured Covered Debt and (b) (I) the product of (y) the
Aggregate Debt Proceeds Sharing Account Deposits and (z) such Matured Covered
Debt's Debt Proceeds Pro Rata Share, less (II) the Prior Debt Proceeds
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Distribution Amount in respect of such Matured Covered Debt.
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"Debt Proceeds Pro Rata Share" means, with respect to any Covered Debt, a
fraction (a) the numerator of which is the principal amount of such Covered Debt
on the Triggering Event Date and (b) the denominator of which is the aggregate
principal amount of all Currently Outstanding Covered Debt on the Triggering
Event Date; provided, however, that in determining the Debt Proceeds Pro Rata
Share for any item of Covered Debt, if such item of Covered Debt is expressly
subordinated to any other item of Covered Debt (the "Subordinated Covered
Debt"), then the terms of such subordination between such items of Covered Debt
shall be given effect to in determining the Debt Proceeds Pro Rata Share and
Debt Proceeds Distribution Entitlement of each such item of Covered Debt,
including the Subordinated Covered Debt. For purposes of determining the Debt
Proceeds Pro Rata Share, the Sharing Agent will use the Dollar Equivalent (as
defined in the Credit Agreement) of the principal amount of Covered Debt as of
the Triggering Event Date.
"Fair Market Value" means (a) as to any security (i) which is listed or
admitted to trading on any national securities exchange on any date of
determination, the amount equal to the average of the last sale prices of such
security for the ten (10) consecutive trading days, regular way, immediately
preceding such date of determination or, if no such sale takes place on any such
date, the average of the closing bid and asked prices thereof on such date, in
each case as officially reported on the principal national securities exchange
on which such securities are then listed or admitted to trading, or (ii) if such
security is not then listed or admitted to trading on any national securities
exchange but is reported through the automated quotation system of a registered
securities association, the average of the last trading prices of such security
for the ten (10) consecutive trading days immediately preceding such date of
determination or, if there shall have been no trading on any such date, the
average of the closing bid and asked prices of such security on such date as
shown by such automated quotation system, and (b) as to any other property or
assets (including any securities that do not satisfy the requirements of (a)(i)
or (a)(ii) above), as of any date of determination, the fair market value of
such property or assets on such date as determined in good faith by the Sharing
Agent. In determining Fair Market Value, the Sharing Agent shall be entitled to
engage one or more investment banking, accounting or appraisal firms selected by
the Sharing Agent, the costs and expenses of which shall be payable from the
Proceeds in the Sharing Account to which such valuation relates.
"Financing Documents" means, collectively, the Credit Documents, the Second
Priority Notes Documents, the Third Priority Notes Documents, the Bank Related
Hedging Agreements, the Bank Related Cash Management Agreements, the Additional
Second Priority Indebtedness Documents, the Additional Third Priority
Indebtedness Documents and the Additional Unsecured Indebtedness Documents.
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"First Priority Covered Debt" means Covered Debt which is First Priority
Indebtedness. For purposes of this definition, First Priority Indebtedness
described in clauses (i) and (ii) of the definition thereof shall be deemed
separate classes of First Priority Covered Debt.
"First Priority Indebtedness" means (i) the Obligations of the Obligors in
respect of borrowings by Crown Usco under the Credit Documents, (ii) the
Obligations of Obligors in respect of borrowings by Crown Euroco and the
subsidiary borrowers under the Credit Documents and (iii) the Obligations of the
Obligors under the Bank Related Debt.
"First Priority Indebtedness Documents" means, collectively, the Credit
Documents and the Bank Related Debt Agreements.
"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.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such asset or any filing of any financing statement under the
UCC as in effect in the applicable state or jurisdiction or any similar notice
or lien under any similar notice or recording statute of any governmental
authority, in each of the foregoing cases whether voluntary or imposed by law,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement relating to such asset, (c) in the
case of securities, any purchase option, call or similar right of a third party
with respect to such securities and (d) any other agreement intended to create
any of the foregoing.
"Matured Covered Debt" means Covered Debt if either (i) the date of the
final scheduled maturity for the payment of principal in respect of such Covered
Debt has occurred and all or a portion of such Covered Debt has not been paid in
full in cash when so due (after giving effect to any applicable grace periods)
or (ii) such Covered Debt has been accelerated prior to its final stated
maturity.
"Matured First Priority Covered Debt" means Matured Covered Debt which is
First Priority Indebtedness. "Matured Second Priority Covered Debt" means
Matured Covered Debt which is Second Priority Indebtedness. "Matured Third
Priority Covered Debt" means Matured Covered Debt which is Third Priority
Indebtedness.
"Matured Second Priority Covered Debt" means Matured Covered Debt which is
Second Priority Indebtedness.
"Matured Third Priority Covered Debt" means Matured Covered Debt which is
Third Priority Indebtedness.
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"Matured Unsecured Covered Debt" means Matured Covered Debt which is
Additional Unsecured Indebtedness.
"Net Cash Deposited Amount" means the amount of all Proceeds deposited into
the Sharing Account in respect of any item of Matured Covered Debt, less the
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amount of distributions made from the Sharing Account in respect of such item of
Matured Covered Debt. Whenever any property or other asset (other than cash) is
deposited into the Sharing Account, it shall be valued, for purposes of
determining the Net Cash Deposited Amount, at its Fair Market Value on the date
of deposit into the Sharing Account.
"Obligations" shall mean, with respect to any of the Financing Documents,
any and all obligations, liabilities and indebtedness of every kind, nature and
description (whether or not constituting future advances or otherwise) from time
to time owing by, or on behalf of, Crown Holdings or any of its subsidiaries
under, or in connection with, such Financing Documents, including principal,
interest, charges, fees, premiums, indemnities and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, evidenced by or
arising under any of such Financing Documents whether now existing or hereafter
arising, whether arising before, during or after the initial or any renewal term
of such Financing Documents, or after the commencement of any case with respect
to Crown Holdings or any of its subsidiaries under any Bankruptcy Code (at the
rate provided for in the relevant Financing Documents) (and including, without
limitation, any principal, interest, fees, costs, expenses and other amounts
which would accrue and become due but for the commencement of such case, whether
or not such amounts are allowed or allowable in whole or in part in any such
case or similar proceeding), whether direct or indirect, absolute or contingent
(including undrawn letters of credit), joint or several, due or not due, primary
or secondary, liquidated or unliquidated, secured or unsecured, and whether
arising directly or howsoever acquired.
"Obligors" means each of CCSC, Crown Holdings, Crown International, Crown
Usco, Crown Euroco, each subsidiary borrower, each of the Pledgors and any other
obligor under any Financing Document.
"Pledgors" means the U.S. Pledgors and the Euro Pledgors.
"Prior Collateral Proceeds Distribution Amount" means, with respect to any
Matured Covered Debt, the amount of all distributions of Collateral Proceeds
made from the Sharing Account in respect of such Matured Covered Debt. "Prior
Debt Proceeds Distribution Amount" means, with respect to any Matured Covered
Debt, the amount of all distributions of Debt Proceeds made from the Sharing
Account in respect of such Matured Covered Debt.
"Proceeds" means, collectively, Debt Proceeds and Collateral Proceeds.
-13-
"Requisite Obligees" means (i) with respect to any direction to the Sharing
Agent relating to Collateral Proceeds, the Bank Agent and UK Agent acting on the
direction of the percentage of Lenders under the Credit Agreement required to
consent to such directions as set forth in the Credit Agreement; provided that
if the Obligations under the Credit Documents and Bank Related Debt Agreements
have been indefeasibly paid in full in cash without any refinancing thereof
through the incurrence of First Priority Covered Debt and the First Priority
Indebtedness Documents and all letters of credit under the Credit Agreement have
terminated, "Requisite Obligees" shall mean (1) one or more Second Priority
Agents representing at least a majority of the aggregate Total Obligations under
Second Priority Indebtedness then outstanding (each such Second Priority Agent
shall be deemed to represent the amount of Total Obligations that it represents
under the applicable Second Priority Indebtedness), until indefeasible payment
in full in cash without any refinancing thereof through the incurrence of Second
Priority Covered Debt of all Obligations outstanding under Second Priority
Indebtedness and (2), thereafter, one or more Third Priority Agents representing
at least a majority of the Total Obligations under Third Priority Indebtedness
then outstanding (each such Third Priority Agent shall be deemed to represent
the amount of Total Obligations that it represents under the applicable Third
Priority Indebtedness) and (ii) with respect to any direction to the Sharing
Agent relating to Debt Proceeds or any other matters under this Agreement, one
or more Agents representing at least a majority of the Total Obligations
outstanding at the applicable date of determination (each such Agent shall be
deemed to represent the Total Obligations in respect of all Covered Debt that it
represents under the applicable Financing Document).
"Second Priority Agents" means, collectively, the Second Priority Notes
Trustee and any Additional Second Priority Indebtedness Representative.
"Second Priority Covered Debt" means Covered Debt which is Second Priority
Indebtedness. For purposes of this definition, Second Priority Indebtedness
described in clauses (i) and (ii) of the definition thereof shall be deemed
separate classes of Second Priority Covered Debt.
"Second Priority Dollar Notes" means (i) $1.085 billion in aggregate
principal amount of 91/2% Second Priority Senior Secured Notes due 2011 of Crown
Euroco issued on the date hereof and any exchange notes which are issued in a
registered exchange offer for such notes and (ii) any additional 91/2% Second
Priority Senior Secured Notes due 2011 of Crown Euroco, to the extent that the
issuance of such notes is permitted by the Credit Agreement, the Second Priority
Notes Indenture and the Third Priority Notes Indenture, and any exchange notes
which are issued in a registered exchange offer for such notes, in each case
issued under the Second Priority Notes Indenture.
"Second Priority Euro Notes" means (i) euro285 million in aggregate
principal amount of 10 1/4% Second Priority Senior Secured Notes due 2011 of
Crown Euroco issued on the date hereof and any exchange notes which are issued
in a registered exchange offer for such notes and (ii) any additional 10 1/4%
Second Priority Senior Secured Notes due 2011 of Crown Euroco, to the extent
that the issuance of such notes is permitted by the Credit Agreement, the Second
Priority Notes Indenture and the Third Priority Notes Indenture, and any
exchange notes which are issued in a registered exchange offer for such notes,
in each case issued under the Second Priority Notes Indenture.
"Second Priority Indebtedness" means (i) the Obligations of the Obligors
under the Second Priority Notes Documents and (ii) the Obligations of the
Obligors under any Additional Second Priority Indebtedness Documents.
"Second Priority Notes" means, collectively, the Second Priority Dollar
Notes and the Second Priority Euro Notes.
"Second Priority Notes Documents" means the Second Priority Notes
Indenture, the Second Priority Notes, each guaranty of the Obligations
thereunder, the Security Documents and any other document executed by any
Obligor in connection with the issuance of the Second Priority Notes, in each
case, as amended, amended and restated, supplemented, refinanced, replaced or
otherwise modified from time to time, as permitted by the Credit Agreement.
"Security Documents" means the U.S. Security Documents and the Euro
Security Documents.
"Third Priority Agents" means, collectively, the Third Priority Notes
Trustee and any Additional Third Priority Indebtedness Representative.
"Third Priority Covered Debt" means Covered Debt which is Third Priority
Indebtedness. For purposes of this definition, Third Priority Indebtedness
described in clauses (i) and (ii) of the definition thereof shall be deemed
separate classes of Third Priority Covered Debt.
"Third Priority Indebtedness" means (i) the Obligations of the Obligors
under the Third Priority Notes Documents and (ii) the Obligations of the
Obligors under any Additional Third Priority Indebtedness Documents.
"Third Priority Notes" means the (i) $725 million in aggregate principal
amount of 10 7/8% Third Priority Senior Secured Notes due 2013 of Crown Euroco
issued on the date hereof and any exchange notes which are issued in a
registered exchange offer for such notes and (ii) any additional 10 7/8% Third
Priority Senior Secured Notes due 2013 of Crown Euroco, to the extent that the
issuance of such notes is permitted by the Credit Agreement, the Second Priority
Notes Indenture and the Third Priority Notes Indenture, and any exchange notes
which are issued in a registered exchange offer for such notes, in each case
issued under the Third Priority Notes Indenture.
-15-
"Third Priority Notes Documents" means the Third Priority Notes Indenture,
the Third Priority Notes, each guaranty of the Obligations thereunder, the
Security Documents and any other document executed by the Obligors in connection
with the issuance of the Third Priority Notes, in each case, as amended, amended
and restated, supplemented, refinanced, replaced or otherwise modified from time
to time, as permitted by the Credit Agreement.
"Total Obligations" means as to any item of Covered Debt, the sum of (i)
the then outstanding Obligations in respect of such Covered Debt and (ii)
interest on the Net Cash Deposited Amount, which interest shall accrue (a) on
the outstanding amount of such Net Cash Deposited Amount from and including the
date on which such Net Cash Deposited Amount was deposited into the Sharing
Account and (b) at the rate at which such Net Cash Deposited Amount would have
accrued interest (assuming that the entire amount of such Net Cash Deposited
Amount represented principal outstanding under the applicable Financing Document
governing such Covered Debt) pursuant to the terms of the applicable Financing
Document governing such Covered Debt, it being understood that (y) interest on
any obligation which accrues at a floating or variable rate shall be calculated
in same manner as such interest was calculated on the date such Covered Debt
became Matured Covered Debt and (z) the Net Cash Deposited Amount shall accrue
interest at the applicable default rate to the extent such default rate would
accrue if Crown Holdings or the applicable obligor in respect of such Covered
Debt had failed to satisfy the obligation to pay principal in respect of such
Covered Debt (without giving effect to any applicable grace periods). All
calculations required by this definition of "Total Obligations" shall be made by
the Sharing Agent and, absent manifest error, shall be binding on all Covered
Parties.
"Triggering Event" means the occurrence of any of the following: (i) a
default under any item of Covered Debt which results in the acceleration of such
Covered Debt prior to the stated maturity thereof (whether or not such
acceleration is enforceable under applicable law) or (ii) a default under any
item of Covered Debt which is caused by the failure to pay when due at final
stated maturity (after giving effect to the expiration of any applicable grace
period(s) as provided in the terms of such Covered Debt) principal of such
Covered Debt (a "Covered Debt Payment Default"), unless, in any case, such
acceleration or Covered Debt Payment Default shall have been waived or deferred
by the Covered Party which has so accelerated or in respect of which such
Covered Debt Payment Default has occurred.
"Triggering Event Date" means the time and date of the first occurrence of
a Triggering Event.
"Unsecured Covered Debt" means Covered Debt that is Additional Unsecured
Indebtedness.
-16-
Section 2. Appointment as Sharing Agent; Creation of Sharing Account.
---------------------------------------------------------
(a) The Bank Agent, the UK Agent, the Second Priority Notes Trustee and the
Third Priority Notes Trustee each hereby irrevocably and unconditionally
appoints, and each Bank Related Hedging Exchanger, Bank Related Cash Management
Exchanger, Additional Second Priority Indebtedness Representative, Additional
Third Priority Indebtedness Representative and Additional Unsecured Indebtedness
Representative signing an acknowledgment hereto, by such signing, irrevocably
and unconditionally appoints, Citicorp North America, Inc. to serve as global
participation and proceeds sharing agent and representative of each such Covered
Party (in such capacity, together with its successors in such capacity, the
"Sharing Agent") and irrevocably and unconditionally authorizes the Sharing
--------------
Agent to receive and deposit all Proceeds into the Sharing Account (as defined
below) following the occurrence of a Triggering Event and to invest such
Proceeds as provided in this Agreement and to distribute all amounts in the
Sharing Account from time to time as provided in this Agreement.
(b) Concurrently with the execution and delivery of this Agreement, the
Sharing Agent shall establish an account entitled "Crown Holdings, Inc. Global
Participation and Proceeds Sharing Account" at its office located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Sharing Account"). To fulfill
----------------
the purposes and intent of this Agreement, the Sharing Agent will be permitted
to create sub-accounts, including securities accounts, in order to hold non-cash
Proceeds and Proceeds in more than one currency. The Sharing Agent shall
maintain the Sharing Account in accordance with its general policies regarding
deposited funds.
Section 3. Direction of Recovered Amounts Following a Triggering Event; Waiver
---------------------------------------------------------------------
of Triggering Event.
-------------------
Each Covered Party hereby irrevocably and unconditionally agrees that, from
and after the occurrence of a Triggering Event, (i) it shall immediately notify
the Obligors and the Collateral Agents of the occurrence of such Triggering
Event, (ii) upon notice to the Obligors and the Collateral Agents by any Covered
Party of the occurrence of such Triggering Event, each Covered Party shall cause
such Obligor to pay (or cause to be paid) any and all Proceeds directly to the
Sharing Agent for deposit into the Sharing Account and (iii) each Collateral
Agent shall pay any and all Collateral Proceeds directly to the Sharing Agent
for deposit into the Sharing Account. If any Covered Party receives any Proceeds
from and after the occurrence of a Triggering Event, such Covered Party shall
set aside such Proceeds and hold them in trust for the benefit of the Sharing
Agent and immediately turn over such Proceeds directly to the Sharing Agent for
deposit into the Sharing Account.
Notwithstanding the foregoing, the Bank Agent (for so long as any
Obligations under the Credit Documents are outstanding) by notice to the Sharing
Agent and the Agents may, and if directed by the Requisite Dollar Lenders under
the Credit Agreement shall, waive
-17-
(whether conditionally, unconditionally, for a limited period of time or for an
indefinite duration) the occurrence or consequences of a Triggering Event
(including, without limitation, the consequence that after the occurrence of a
Triggering Event (x) each Covered Party pay regularly scheduled interest
payments into the Sharing Account or (y) each Covered Party is entitled to
receive its Debt Proceeds Pro Rata Share of such an interest payment only if its
Covered Debt is Matured Covered Debt), in which case such Triggering Event shall
be deemed to have not occurred or such consequences waived with respect to all
Covered Parties unless such waiver is rescinded in which case a Triggering Event
shall be deemed to have occurred as of the date of such rescission.
For purposes of the Financing Documents and the obligation of any Obligor
to make payments to any Agent or holder of Covered Debt thereunder, all payments
of Proceeds paid to the Sharing Agent by any Obligor or Collateral Agent on
behalf of any Agent or holder of Covered Debt in respect of Covered Debt shall
be deemed paid to and received by such Agent or holder.
Section 4. Decisions Relating to Proceeds in Sharing Account.
------------------------------------------------- (a) The Sharing Agent may take
such actions with respect to Proceeds in the Sharing Account as it may, in its
sole discretion, deem necessary or appropriate under the circumstances to give
effect to the terms of this Agreement. The Sharing Agent agrees to make such
demands and give such notices with respect to Proceeds in the Sharing Account as
the Requisite Obligees may request from time to time.
The Sharing Agent shall not be required to take any action that it believes
is contrary to law or to the terms of this Agreement or which it believes would
subject it or any of its officers, employees or directors to liability, and the
Sharing Agent shall not be required to take any action under this Agreement,
unless and until the Sharing Agent shall receive additional indemnities to its
satisfaction by, or on behalf of, the Covered Parties against any and all
losses, costs, expenses or liabilities in connection therewith.
(b) Each Covered Party executing this Agreement or an acknowledgment hereto
agrees that (i) the Sharing Agent may act as the Requisite Obligees may request
(regardless of whether any Covered Party or any holder represented thereby
agrees, disagrees or abstains with respect to such request) and (ii) the Sharing
Agent shall have no liability for acting in accordance with such request
(provided such action does not, on its face, conflict with the express terms of
--------
this Agreement). The Sharing Agent shall give prompt notice to all Covered
Parties of actions taken pursuant to the instructions of the Requisite Obligees;
provided, however, that the failure to give any such notice shall not impair the
-----------------
right of the Sharing Agent to take any such action or the validity or
enforceability under this Agreement of the action so taken or create a cause of
action against the Sharing Agent.
-18-
(c) The Sharing Agent may at any time request directions from the Requisite
Obligees with respect to the Sharing Account as to any course of action or other
matter relating thereto. Directions given by the Requisite Obligees to the
Sharing Agent hereunder shall be binding on all Covered Parties for all
purposes.
Section 5. Permitted Investments of Proceeds in Sharing Account.
----------------------------------------------------
Funds deposited in the Sharing Account shall be invested and reinvested
only upon the following terms and conditions:
(a) Investments. The Sharing Agent may (but shall not be obligated to) at
-----------
its discretion invest funds in the Sharing Account (i) in the case of United
States dollars, in any direct obligations of the federal government of the
United States of America having a final maturity not later than 90 days from the
date such funds are invested, (ii) in the case of Euro, in any direct
obligations of the government of the Federal Republic of Germany having a final
maturity not later than 90 days from the date such funds are invested and (iii)
in the case of any other currency, in any securities described in clauses (i)
and (ii). The Sharing Agent shall not be liable for losses on any investments
made by it pursuant to and in compliance with this Agreement. Any losses shall
be deemed a reduction of Collateral Proceeds or Debt Proceeds, as applicable,
and deducted in determining the amount of Proceeds for all purposes hereunder.
In the absence of investment, the funds held in the Sharing Account shall remain
uninvested.
(b) Interest; Proceeds. All amounts earned on funds in the Sharing Account
-------------------
and any and all proceeds received in respect of funds, property or other assets
in the Sharing Agreement shall be deemed Proceeds and shall remain deposited in
the Sharing Account as set forth herein as additional Collateral Proceeds (in
the case of amounts earned or proceeds received in respect of Collateral
Proceeds) or Debt Proceeds (in the case of amounts earned or proceeds received
in respect of Debt Proceeds) for the benefit of the Covered Parties and shall
only be disbursed in accordance with the terms hereof.
(c) Sharing Account Statement. No later than the fifteenth calendar day
---------------------------
following each March 31, June 30, September 30 and December 31 following the
occurrence of a Triggering Event and as of such other dates as the Requisite
Obligees may from time to time reasonably request in writing, the Sharing Agent
shall deliver to the Covered Parties a statement in writing setting forth in
reasonable detail the balance of funds and other property or assets, as the case
may be, then in the Sharing Account (including the balance of Collateral
Proceeds and Debt Proceeds disclosed separately) and the manner in which such
funds are invested (the "Sharing Account Statement"). The parties hereto
---------------------------
irrevocably instruct the Sharing Agent that on the first date upon which the
balance in a Sharing Account is reduced to zero, the Sharing Agent shall
promptly thereafter deliver to the Covered Parties written notice that the
balance in the Sharing Account has been reduced to zero.
-19-
Section 6. Deposits and Distributions of Proceeds; Etc.
-------------------------------------------
(a) Deposits of Proceeds. Upon deposit of Proceeds or any other amounts
--------------------
into the Sharing Account, such Proceeds and other amounts shall not be released
to any Agent representing Covered Debt or to any holder of Covered Debt unless
and until such Covered Debt becomes Matured Covered Debt and thereafter shall
only be distributed in accordance with the terms of this Agreement.
(b) Distributions of Collateral Proceeds.
------------------------------------
(A) First Priority Covered Debt. Upon receipt by the Sharing Agent of
----------------------------
any written notice (each, a "First Priority Claim Notice") by any holder of
---------------------------
or Agent representing First Priority Covered Debt that such First Priority
Covered Debt is Matured First Priority Covered Debt, the Sharing Agent
shall:
(I) promptly distribute to such Agent out of the Sharing Account
such Matured First Priority Covered Debt's Collateral Proceeds
Distribution Entitlement; and
(II) upon any further deposit of Collateral Proceeds into the
Sharing Account after the date of such First Priority Claim Notice,
promptly distribute to such Agent out of the Sharing Account such
Matured First Priority Covered Debt's Collateral Proceeds Distribution
Entitlement;
provided, however, that, subject to clause (iii) below, no Agent in respect
-----------------
of or holder of Matured First Priority Covered Debt shall be entitled to
receive any amounts in respect of Collateral Proceeds from the Sharing
Account in excess of the then outstanding Total Obligations in respect of
such Matured First Priority Covered Debt.
(B) Second Priority Covered Debt. Upon receipt by the Sharing Agent of any
-----------------------------
written notice (each, a "Second Priority Claim Notice") by any holder of or
-------------------------------
Agent representing Second Priority Covered Debt that such Second Priority
Covered Debt is Matured Second Priority Covered Debt, from and after the time at
which the Total Obligations in respect of all First Priority Covered Debt have
been paid in full, the Sharing Agent shall:
(I) promptly distribute to such Agent out of the Sharing Account such
Matured Second Priority Covered Debt's Collateral Proceeds Distribution
Entitlement; and
(II) upon any further deposit of Collateral Proceeds into the Sharing
Account after the date of such Second Priority Claim Notice, promptly
distribute to such Agent out of the Sharing Account such Matured Second
Priority Covered Debt's Collateral Proceeds Distribution Entitlement;
-20-
provided, however, that, subject to clause (iii) below, no Agent in respect of
------------------
or holder of Matured Second Priority Covered Debt shall be entitled to receive
any amounts in respect of Collateral Proceeds from the Sharing Account in excess
of the then outstanding Total Obligations in respect of such Matured Second
Priority Covered Debt.
(C) Third Priority Covered Debt. Upon receipt by the Sharing Agent of any
----------------------------
written notice (each, a "Third Priority Claim Notice") by any holder of or Agent
---------------------------
representing Third Priority Covered Debt that such Third Priority Covered Debt
is Matured Third Priority Covered Debt, from and after the time at which the
Total Obligations in respect of all First Priority Covered Debt and Second
Priority Covered Debt have been paid in full, the Sharing Agent shall:
(I) promptly distribute to such Agent out of the Sharing Account such
Matured Third Priority Covered Debt's Collateral Proceeds Distribution
Entitlement; and
(II) upon any further deposit of Collateral Proceeds into the Sharing
Account after the date of such Third Priority Claim Notice, promptly
distribute to such Agent out of the Sharing Account such Matured Third
Priority Covered Debt's Collateral Proceeds Distribution Entitlement;
provided, however, that, subject to clause (iii) below, no Agent in respect of
------------------
or holder of Matured Third Priority Covered Debt shall be entitled to receive
any amounts in respect of Collateral Proceeds from the Sharing Account in excess
of the then outstanding Total Obligations in respect of such Matured Third
Priority Covered Debt.
(ii) Distributions of Debt Proceeds. Upon receipt by the Sharing Agent
------------------------------
of a First Priority Claim Notice, Second Priority Claim Notice, Third
Priority Claim Notice or a written notice from any agent in respect of
Unsecured Covered Debt (an "Unsecured Claim Notice" and, together with any
----------------------
First Priority Claim Notice, Second Priority Claim Notice or Third Priority
Claim Notice, a "Claim Notice") by any holder of or Agent representing
-------------
Covered Debt that such Covered Debt is Matured Covered Debt, the Sharing
Agent shall:
(A) promptly distribute to such Agent out of the Sharing Account such
Matured Covered Debt's Debt Proceeds Distribution Entitlement; and
(B) upon any further deposit of Debt Proceeds into the Sharing Account
after the date of such applicable Claim Notice, promptly distribute to such
Agent out of the Sharing Account such Matured Covered Debt's Debt Proceeds
Distribution Entitlement;
-21-
provided, however, that, subject to clause (iii) below, no Agent in respect of
------------------
or holder of Matured Covered Debt shall be entitled to receive any amounts from
the Sharing Account in excess of the then outstanding Total Obligations in
respect of such Matured Covered Debt.
(iii) Excess Sharing Account Proceeds. If, following the satisfaction of
--------------------------------
the Total Obligations in respect of all Covered Debt, additional Proceeds remain
in the Sharing Account, the Sharing Agent shall distribute such remaining
proceeds to the Agents representing Matured Covered Debt on a pro rata basis in
proportion to their respective Debt Proceeds Pro Rata Share (provided that for
--------
purposes of calculating Debt Proceeds Pro Rata Share, all Covered Debt shall be
deemed to be Currently Outstanding Covered Debt).
(iv) Excess Proceeds from Letters of Credit. If any Covered Debt receives
---------------------------------------
Proceeds in excess of its Total Obligations due to the collateralization of
letters of credit that expire without having been drawn upon, the Agent in
respect of such Covered Debt shall pay such excess to the Sharing Agent for
deposit into the Sharing Account as Collateral Proceeds.
(c) All property and other assets other than cash from time to time
deposited in the Sharing Account shall be valued at the Fair Market Value of
such property or asset as of the applicable date of deposit. In the event that
the Sharing Agent shall distribute any property or assets other than cash from
the Sharing Account, the amount of such distribution shall be deemed to be equal
to the Fair Market Value of such property or assets, as the case may be, on the
date of distribution from the Sharing Account. Fair Market Value shall be
determined by the Sharing Agent whose determination, absent manifest error,
shall be conclusive as to Fair Market Value.
(d) To the extent that any property or assets other than cash are
distributed from the Sharing Account in respect of Covered Debt, the Sharing
Agent shall use its commercially reasonable efforts to distribute such property
and assets among all Covered Parties receiving a distribution as of each
applicable distribution date based on their respective Collateral Proceeds Pro
Rata Share or Debt Proceeds Pro Rata Share, as applicable; provided, however,
------------------
that the Sharing Agent may in its sole discretion sell or otherwise convert any
non-cash Proceeds into cash in lieu of distributing such non-cash Proceeds; and
provided, further, that to the extent that any distribution of Proceeds in
------------------
respect of Covered Debt would include a distribution of "securities" (as defined
in the Securities Act of 1933 as amended (the "Securities Act")) to an item of
---------------
Covered Debt which constitutes a "security" within the meaning of the Securities
Act, the Sharing Agent shall liquidate such "securities" or convert such
securities (at the expense of such item of Covered Debt which constitutes a
"security") into cash prior to their distribution. In no event will an item of
Covered Debt which constitutes a "security" be entitled to receive a
distribution of "securities".
(e) The Sharing Agent shall be entitled to deduct from time to time from
the Sharing Account and be entitled to be paid therefrom all of its
out-of-pocket expenses, liabilities and advances made or incurred by the Sharing
Agent in connection with its acting as Sharing Agent hereunder and all amounts
for which Sharing Agent is entitled to indemnification hereunder, and to the
payment of all out-of-pocket costs and expenses paid or incurred by Sharing
Agent in connection with the exercise of any right or remedy hereunder.
-22-
(f) Payments by the Sharing Agent on account of Proceeds in the Sharing
Account in respect of the Total Obligations under the Credit Agreement shall be
made to the Bank Agent and UK Agent for distribution by the Bank Agent and UK
Agent to the Lenders and other Covered Parties under the Credit Agreement in
accordance with the Credit Agreement and as follows: (i) any payments in respect
of Bank Related Hedging Obligations and Bank Cash Management Related Obligations
shall be made as directed by the Lender or Affiliate thereof to which such Bank
Related Hedging Obligations or Bank Cash Management Related Obligations are
owed; and (ii) any payments in respect of loans or outstanding letters of credit
shall be paid to the Bank Agent and UK Agent for the benefit of the Lenders and
other Covered Parties under the Credit Agreement. All other payments on account
of Proceeds in the Sharing Account in respect of all other Total Obligations in
respect of Second Priority Indebtedness, Third Priority Indebtedness and
Additional Unsecured Indebtedness shall be paid to the Second Priority Agents,
the Third Priority Agents and any Additional Unsecured Indebtedness
Representative, as applicable, on behalf of the holders of such indebtedness.
(g) Each Agent shall have the right to request that all cash distributions
made to it under this Section 6 be made in the same currency as the currency of
the Covered Debt it represents by giving prior written notice to the Sharing
Agent at least 3 business days prior to any such distribution. Upon receiving
such written notice, the Sharing Agent shall convert all cash to be distributed
to such Agent into the requested currency on the date of disbursement at the
spot rate of exchange available to the Sharing Agent on such date. The Sharing
Agent shall be entitled to charge against any amount being distributed to such
requesting Agent, its out-of-pocket expenses incurred in complying with such
request.
Section 7. Obligations of Obligors Unaffected.
----------------------------------
It is understood that the terms of this Agreement with respect to sharing
Proceeds in the Sharing Account shall not affect the obligations of the Obligors
to pay all amounts due to any Covered Party. Any distribution of Proceeds from
the Sharing Account to a Covered Party shall not result in the extinguishment of
any Covered Debt of such Covered Party with respect to any Obligor.
Section 8. Information.
-----------
In the event the Sharing
Agent proposes to take any action pursuant to this Agreement or requests
instructions from the Covered Parties as provided herein, upon the request of
the Sharing Agent, each of the following Covered Parties agrees to provide
promptly to the Sharing Agent the following information and documentation:
-23-
(a) The Bank Agent and UK Agent on behalf of the Lenders and agents under
the Credit Agreement agree to promptly from time to time notify the Sharing
Agent of (i) the aggregate amount of the principal and interest outstanding and
other amounts owing under the Credit Agreement, including the amount of
outstanding letters of credit under the Credit Agreement as at such date and the
amount, if any, then due and payable as a result of final stated maturity or
acceleration under the Credit Agreement as the Sharing Agent may specify, (ii)
the current commitment of each Lender under the Credit Agreement, (iii) any
payment received by the Bank Agent or UK Agent to be applied to the amounts due
under the Credit Agreement and (iv) the Bank Agent's and UK Agent's calculations
as to the amount of interest accrued with respect to its Covered Debt in
accordance with clause (ii) of the definition of Total Obligations. The Bank
Agent shall promptly upon the request of the Sharing Agent provide the Sharing
Agent with true, correct and complete copies of each of the Credit Documents.
The Bank Agent shall certify as to such amounts and the Sharing Agent shall be
entitled to rely conclusively upon such certification.
(b) Each Bank Related Hedging Exchanger party to a Bank Related Hedging
Agreement subject to this Agreement, by signing an acknowledgment to this
Agreement, agrees to promptly from time to time notify the Sharing Agent of (i)
the notional amount under such Bank Related Hedging Agreement and the amount
payable by Crown Holdings or any of its subsidiaries upon early termination of
such Bank Related Hedging Agreement, (ii) any payment received by such Bank
Related Hedging Exchanger to be applied to amounts due upon early termination of
such Bank Related Hedging Agreement and (iii) such Bank Related Hedging
Exchanger's calculations as to the amount of interest accrued with respect to
its Covered Debt in accordance with clause (ii) of the definition of Total
Obligations. Each Lender and Affiliate shall promptly upon the request of the
Sharing Agent provide the Sharing Agent with true, correct and complete copies
of each of each Bank Related Hedging Agreement to which it is a party. Such Bank
Related Hedging Exchanger shall certify as to such amounts and the Sharing Agent
shall be entitled to rely conclusively upon such certification.
(c) Each Bank Related Cash Management Exchanger to a Bank Related Cash
Manageme nt Agreement subject to this Agreement, by signing an acknowledgment to
this Agreement, agrees to promptly from time to time notify the Sharing Agent of
(i) the notional amount under such Bank Related Cash Management Agreement and
the amount payable by Crown Holdings or any of its subsidiaries upon early
termination of such Bank Related Cash Management Agreement, (ii) any payment
received by such Bank Related Cash Management Exchanger to be applied to amounts
due upon early termination of such Bank Related Cash Management Agreement and
(iii) such Bank Related Cash Management Exchanger's calculations as to the
amount of interest accrued with respect to its Covered Debt in accordance with
clause (ii) of the definition of Total Obligations. Each Bank Related Cash
Management Exchanger shall promptly upon the request of the Sharing Agent
provide the Sharing Agent with true, correct and complete copies of each of the
Bank Related Cash Management Agreement to which it is a party. Such Bank Related
Cash Management Exchanger shall certify as to such amounts and the Sharing Agent
shall be entitled to rely conclusively upon such certification.
-24-
(d) Upon written request, the Second Priority Notes Trustee agrees to
promptly notify the Sharing Agent of (i) the aggregate amount of principal and
interest outstanding and other amounts owing with respect to the Second Priority
Notes under the Second Priority Notes Documents and the amount, if any, then due
and payable under the Second Priority Notes and Second Priority Notes Documents,
as at such date as the Sharing Agent may specify, (ii) any payment received by
the Second Priority Notes Trustee to be applied to the Obligations due with
respect to the Second Priority Notes and Second Priority Notes Documents and
(iii) the Second Priority Notes Trustee's calculations as to the amount of
interest accrued with respect to its Covered Debt in accordance with clause (ii)
of the definition of Total Obligations. The Second Priority Notes Trustee shall
promptly upon the request of the Sharing Agent provide the Sharing Agent with
true, correct and complete copies of each of the Second Priority Notes Documents
to which it is a party. The Second Priority Notes Trustee shall certify as to
such amounts and the Sharing Agent shall be entitled to rely conclusively upon
such certification.
(e) Each Additional Second Priority Indebtedness Representative with
respect to the Additional Second Priority Indebtedness subject to this
Agreement, by signing an acknowledgment to this Agreement, agrees to promptly
from time to time notify the Sharing Agent of (i) the aggregate amount of
principal and interest outstanding and other amounts owing under the applicable
Additional Second Priority Indebtedness Documents and the amount, if any, then
due and payable under such Additional Second Priority Indebtedness, as at such
date as the Sharing Agent may specify, (ii) any payment received by such
Additional Second Priority Indebtedness Representative to be applied to the
Obligations due with respect to such Additional Second Priority Indebtedness and
such Additional Second Priority Indebtedness Documents and (iii) such Additional
Second Priority Indebtedness Representative's calculations as to the amount of
interest accrued with respect to its Covered Debt in accordance with clause (ii)
of the definition of Total Obligations. Each Additional Second Priority
Indebtedness Representative shall promptly upon the request of the Sharing Agent
provide the Sharing Agent with true, correct and complete copies of each of the
Additional Second Priority Indebtedness Documents to which it is a party. The
Additional Second Priority Indebtedness Representative shall certify as to such
amounts and the Sharing Agent shall be entitled to rely conclusively upon such
certification.
-25-
(f) Upon written request, the Third Priority Notes Trustee agrees to
promptly notify the Sharing Agent of (i) the aggregate amount of principal and
interest outstanding and other amounts owing with respect to the Third Priority
Notes under the Third Priority Notes Documents and the amount, if any, then due
and payable under the Third Priority Notes and Third Priority Notes Documents,
as at such date as the Sharing Agent may specify, (ii) any payment received by
the Third Priority Notes Trustee to be applied to the Obligations due with
respect to the Third Priority Notes and Third Priority Notes Documents and (iii)
the Third Priority Notes Trustee's calculations as to the amount of interest
accrued with respect to its Covered Debt in accordance with clause (ii) of the
definition of Total Obligations. The Third Priority Notes Trustee shall promptly
upon the request of the Sharing Agent provide the Sharing Agent with true,
correct and complete copies of each of the Third Priority Notes Documents to
which it is a party. The Third Priority Notes Trustee shall certify as to such
amounts and the Sharing Agent shall be entitled to rely conclusively upon such
certification.
(g) The Additional Third Priority Indebtedness Representative with respect
to the Additional Third Priority Indebtedness subject to this Agreement, by
signing an acknowledgment to this Agreement, agrees to promptly from time to
time notify the Sharing Agent of (i) the aggregate amount of principal and
interest outstanding and other amounts owing under the applicable Additional
Third Priority Indebtedness Documents and the amount, if any, then due and
payable under such Additional Third Priority Indebtedness, as at such date as
the Sharing Agent may specify, (ii) any payment received by such Additional
Third Priority Indebtedness Representative to be applied to the Obligations due
with respect to such Additional Third Priority Indebtedness and such Additional
Third Priority Indebtedness Documents and (iii) such Additional Third Priority
Indebtedness Representative's calculations as to the amount of interest accrued
with respect to its Covered Debt in accordance with clause (ii) of the
definition of Total Obligations. The Additional Third Priority Indebtedness
Representative shall promptly upon the request of the Sharing Agent provide the
Sharing Agent with true, correct and complete copies of each of the Additional
Third Priority Indebtedness Documents to which it is a party. The Additional
Third Priority Indebtedness Representative shall certify as to such amounts and
the Sharing Agent shall be entitled to rely conclusively upon such
certification.
(h) Each Additional Unsecured Indebtedness Representative with respect to
the Additional Unsecured Indebtedness subject to this Agreement, by signing an
acknowledgment to this Agreement, agrees to promptly from time to time notify
the Sharing Agent of (i) the aggregate amount of principal and interest
outstanding and other amounts owing under the applicable Additional Unsecured
Indebtedness Documents and the amount, if any, then due and payable under such
Additional Unsecured Indebtedness, as at such date as the Sharing Agent may
specify,
-26-
(ii) any payment received by such Additional Unsecured Indebtedness
Representative to be applied to the Obligations due with respect to such
Additional Unsecured Indebtedness and such Additional Unsecured Indebtedness
Documents and (iii) such Additional Unsecured Indebtedness Representative's
calculations as to the amount of interest accrued with respect to its Covered
Debt in accordance with clause (ii) of the definition of Total Obligations. Each
Additional Unsecured Indebtedness Representative shall promptly upon the request
of the Sharing Agent provide the Sharing Agent with true, correct and complete
copies of each of the Additional Unsecured Indebtedness Documents to which it is
a party. The Additional Unsecured Indebtedness Representative shall certify as
to such amounts and the Sharing Agent shall be entitled to rely conclusively
upon such certification.
Section 9. Bank Related Hedging Agreements; Bank Related Cash Management
--------------------------------------------------------------------
Agreements; Additional Second Priority Indebtedness Documents; Additional Third
--------------------------------------------------------------------------------
Priority Indebtedness Documents; Additional Unsecured Indebtedness Documents.
----------------------------------------------------------------------------
(a) If a Bank Related Hedging Exchanger or Bank Related Cash Management
Exchanger shall cause Bank Related Hedging Obligations and Bank Related Cash
Management Obligations to be secured by the Security Documents by becoming a
party to the Intercreditor Agreements as set forth therein, such Person shall
also execute an acknowledgment in the form contained on the signature pages
hereof, and by delivering such executed acknowledgment to the Sharing Agent,
such Person agrees to be bound by the terms of this Agreement.
(b) If an Additional Second Priority Indebtedness Representative, on behalf
of itself and all holders of such Additional Second Priority Indebtedness, shall
cause such Additional Second Priority Indebtedness to be secured by the Security
Documents by becoming a party to the Intercreditor Agreements as set forth
therein, such Additional Second Priority Indebtedness Representative shall also
execute an acknowledgment in the form contained on the signature pages hereof,
and by delivering such executed acknowledgment to the Sharing Agent, such
Additional Second Priority Indebtedness Representative agrees, on behalf of
itself and all holders of such Additional Second Priority Indebtedness, to be
bound by the terms of this Agreement.
(c) If an Additional Third Priority Indebtedness Representative, on behalf
of itself and all holders of such Additional Third Priority Indebtedness, shall
cause such Additional Third Priority Indebtedness to be secured by the Security
Documents by becoming a party to the Intercreditor Agreements as set forth
therein, such Additional Second Priority Indebtedness Representative shall also
execute an acknowledgment in the form contained on the signature pages hereof,
and by delivering such executed acknowledgment to the Sharing Agent, such
Additional Third Priority Indebtedness Representative agrees, on behalf of
itself and all holders of such Additional Third Priority Indebtedness, to be
bound by the terms of this Agreement.
-27-
(d) To the extent required by any Covered Debt, each Additional Unsecured
Indebtedness Representative, on behalf of itself and all holders of such
Additional Unsecured Indebtedness, shall execute an acknowledgment in the form
contained on the signature pages hereof, and by delivering such executed
acknowledgment to the Sharing Agent, by which such Additional Unsecured
Indebtedness Representative agrees, on behalf of itself and all holders of such
Additional Unsecured Indebtedness, to be bound by the terms of this Agreement.
Section 10. Disclaimers, Indemnity, Etc.
---------------------------
(a) By becoming a party to this Agreement, each Covered Party acknowledges
that the Sharing Agent shall not be the trustee of any Covered Party. The
Sharing Agent shall have no duties or responsibilities except those expressly
set forth in this Agreement and the Sharing Agent shall not by reason of this
Agreement be a trustee for any Covered Party or have any other fiduciary
obligation to any Covered Party (including any obligation under the Trust
Indenture Act of 1939, as amended). The Sharing Agent shall not be responsible
to any Covered Party for any recitals, statements, representations or warranties
contained in this Agreement or any Financing Document or in any certificate or
other document referred to or provided for in, or received by any of them under,
any of the Financing Documents, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of any of the Financing Documents or
any other document referred to or provided for therein or for any failure by any
other party to perform any of its respective obligations under any of the
Financing Documents. The Sharing Agent may employ agents and attorneys-in-fact
and shall not be responsible, except as to money or securities received by it or
its authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither the Sharing Agent
nor any of its directors, officers, employees or agents shall be liable or
responsible for any action taken or omitted to be taken by it or them hereunder
or in connection herewith, except for actions that are finally judicially
determined to have resulted from its or their own gross negligence or willful
misconduct.
(b) The Sharing Agent shall be entitled to rely upon any certification,
notice or other communication (including any thereof by telex, telecopy,
telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Sharing Agent. Without limiting any rights of the Sharing Agent
hereunder, the Sharing Agent shall in all cases be fully protected in acting, or
in refraining from acting, hereunder in accordance with instructions signed by
Requisite Obligees, and such instructions of Requisite Obligees, and any action
taken or failure to act pursuant thereto, shall be binding on all of the Covered
Parties.
-28-
(c) Each Covered Party (collectively, the "Indemnifying Parties") agrees to
--------------------
indemnify the Sharing Agent out of any Proceeds pursuant to Section 6 hereof,
for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the Sharing
Agent in any way relating to or arising out of this Agreement or any of the
Financing Documents or any other documents contemplated by or referred to
therein or the transactions contemplated thereby or the enforcement of any of
the terms of any thereof; provided, however, that no such Indemnifying Party
------------------
shall be liable for any of the foregoing to the extent they are finally
judicially determined to have resulted from the gross negligence or willful
misconduct of the Sharing Agent.
(d) Except for action expressly required of the Sharing Agent hereunder,
the Sharing Agent shall, notwithstanding anything to the contrary in Section
10(c) hereof, in all cases be fully justified in failing or refusing to act
hereunder unless it shall be further indemnified to its satisfaction by the
Covered Parties against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
(e) The Sharing Agent may resign at any time by giving at least 5 days'
notice thereof to the Covered Parties (such resignation to take effect as
hereinafter provided). In the event of such resignation of the Sharing Agent,
the Requisite Obligees shall thereupon have the right to appoint a successor
Sharing Agent. If no successor Sharing Agent shall have been so appointed by
Requisite Obligees and shall have accepted such appointment within 30 days after
the notice of the intent of the Sharing Agent to resign, then the retiring
Sharing Agent may, on behalf of the other Covered Parties, appoint a successor
Sharing Agent. Any successor Sharing Agent appointed pursuant to this clause
(e)(i) shall be a commercial bank organized under the laws of the United States
of America or any state thereof and having a combined capital and surplus of at
least $500,000,000.
(ii) Upon the acceptance of any appointment as Sharing Agent hereunder by a
successor Sharing Agent, such successor Sharing Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Sharing Agent, and the retiring or removed Sharing Agent
shall thereupon be discharged from its duties and obligations hereunder. After
any retiring or removed Sharing Agent's resignation or removal hereunder as
Sharing Agent, the provisions of this Section 10 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Sharing Agent.
(f) Each of the Covered Parties understands and acknowledges that the
Sharing Agent and its Affiliates may also hold indebtedness of any Obligor or
their subsidiaries, be an agent under any of the Financing Documents and act in
other financial advisory or underwriting capacities on behalf of any Obligor and
any of their subsidiaries, and waives any actual or potential conflict of
interest resulting therefrom.
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Section 11. Subrogation; Termination of Agreement.
-------------------------------------
(a) If, as a result of the operation of this Agreement, any Covered Party
shall recover less in respect of its Covered Debt than it would have had it not
been a party to this Agreement (the "Harmed Covered Party"), then, upon the
----------------------
payment in full of the Total Obligations in respect of any item of Covered Debt
which has benefited from the operation of this Agreement through the receipt of
Proceeds resulting in a recovery that is greater than the recovery that would
have been realized had such Covered Debt not been a party to this Agreement (the
"Benefited Covered Party"), each Harmed Covered Party shall be subrogated to the
-----------------------
rights, if any, that each such Benefited Covered Party may have against any
Obligor to receive payments and distributions of cash, property or other assets
of such Obligor. Any such cash, property or other assets received by a Harmed
Covered Party shall constitute Debt Proceeds or Collateral Proceeds, as
applicable, under this Agreement. Each Benefited Covered Party agrees to use its
commercially reasonable efforts to cooperate with each Harmed Covered Party to
give effect to this provision.
(b) This Agreement (other than clause (a) of this Section 11) shall
terminate upon the first to occur of (a) the receipt by the Sharing Agent and
other Agents of written notice from the Bank Agent that it has elected to
terminate this Agreement, which notice shall state that it is a "Notice of
Termination," and (b) when both (i) the Total Obligations under all Covered Debt
have been paid in full after the occurrence of a Triggering Event and (ii) all
amounts in the Sharing Account have been distributed to the Agents. It is
acknowledged that the Credit Agreement requires the Bank Agent to terminate this
Agreement upon the reuest of Crown Usco after all First Priority Indebtedness
has been repaid in full and the First Priority Indebtedness Documents have been
terminated.
Section 12. Miscellaneous.
-------------
(a) All notices and other communications provided for herein shall be in
writing and may be personally served, telecopied, e-mailed or sent by United
States mail and shall be deemed to have been given when delivered in person,
upon receipt of telecopy or e-mail or four Business Days after deposit in the
mail, registered or certified, with postage prepaid and properly addressed. For
the purposes hereof, the addresses of the parties hereto (until notice of a
change thereof is delivered as provided in this Section 12(a)) shall be as set
forth under each party's name on the signature pages (including acknowledgments)
hereof.
(b) This Agreement may be modified or waived only by an instrument or
instruments in writing signed by the Sharing Agent with the written consent of
Requisite Obligees; provided that no modification or waiver (i) which by its
--------
terms adversely affects the right of any holder of Covered Debt to receive
distributions pursuant to Section 6(b), (ii) which by its terms obligates any
Covered Party to contribute funds or other assets under this Agreement in excess
of its obligations as in effect on the date hereof or
-30-
(iii) that by its terms has a disproportionate (i.e., not ratable) adverse
effect on any holder of Covered Debt (as opposed to all holders of Covered Debt)
shall, in each case, be effective against any holder of such item of Covered
Debt without the written consent of the Agent in respect of such Covered Debt;
provided, however, that, notwithstanding the foregoing, the written consent of
------------------
the Covered Parties shall not be required with respect to amendments,
modifications or waivers necessary to permit the incurrence of additional
indebtedness secured by any or all the Collateral and entitled to the benefits
of the Security Documents insofar as the foregoing is not prohibited by the
Financing Documents benefiting such Covered Party, including for the purposes of
providing any successor or replacement credit agreement or bank facility to the
Credit Agreement, and including without limitation any amendments, modifications
or waivers for the purpose of adding appropriate references to additional
parties in, and according such parties the benefits of, any of the provisions
hereof in connection with the incurrence of such indebtedness. No modification
or waiver which alters the obligations of the Collateral Agents hereunder will
be effective against them without their prior written consent.
(c) This Agreement shall be binding upon and inure to the benefit of the
Sharing Agent, each Covered Party and their respective successors and assigns.
(d) This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such counterpart.
(e) This Agreement shall become effective as to each of the Bank Agent, the
UK Agent, the Second Priority Notes Trustee, the Third Priority Notes Trustee
and the Collateral Agents listed on the signature pages hereof and the Sharing
Agent upon the execution of this Agreement by each of the Bank Agent, the UK
Agent, the Second Priority Notes Trustee, the Third Priority Notes Trustee and
the Sharing Agent and the delivery of each such Person's counterparts to the
Sharing Agent.
(f) Each of the parties hereto authorizes the Sharing Agent to execute and
file on its behalf all such further documents and instruments, and authorizes
the Sharing Agent to perform such other acts, as may be reasonably necessary or
advisable to effectuate the purposes of this Agreement.
(g) If any provision of this Agreement shall be inconsistent with, or
contrary to, any provisions in any Financing Document or any other instrument
delivered in connection with the transactions contemplated thereby, the
applicable provision in this Agreement shall be controlling and shall supersede
such inconsistent provision to the extent necessary to give full effect to all
provisions contained in this Agreement. Each Covered Party acknowledges and
agrees that the terms and provisions of this Agreement do not violate any term
or provisions of its respective Financing Document.
(h) Each of the Covered Parties (other than the Bank Agent and Lenders with
regard to the Credit Documents, any Bank Related Hedging Exchanger and any Bank
Related Cash Management Exchanger)
-31-
shall use its best efforts to notify the other of any amendment, modification or
waiver to any of its Financing Documents, but the failure to do so shall not
create a cause of action against the party failing to give such notice or create
any claim or right on behalf of any third party. Each of the Covered Parties
(other than the Bank Agent and Lenders with regard to the Credit Documents, any
Bank Related Hedging Exchanger and any Bank Related Cash Management Exchanger)
shall, upon request of the other or others, provide copies of all such
modifications, amendments and waivers.
(i) Each of the parties represents and warrants to all other parties hereto
that the execution, delivery and performance by or on behalf of such party to
this Agreement has been duly authorized by all necessary action, corporate or
otherwise, does not violate any provision of law, governmental regulation, or
any agreement or instrument by which such party is bound, and requires no
governmental or other consent that has not been obtained and is not in full
force and effect.
(j) The Covered Parties may demand specific performance of this Agreement.
Each of the Covered Parties hereby irrevocably waives any defense based on the
adequacy of a remedy at law and any other defense which might be asserted to bar
the remedy of specific performance in any action which may be brought by the
Sharing Agent.
(k) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THEREOF.
(l) Each party hereby irrevocably and unconditionally submits, for itself
and its property, to the exclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 12(a). Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
[Remainder of page intentionally left blank]
S-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
CITICORP NORTH AMERICA, INC.,
as Bank Agent,
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITIBANK INTERNATIONAL, plc,
as UK Agent,
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Vice President
Notice Address:
Citigroup Centre
Canada Square
Xxxxxx Xxxxx
Xxxxxx X00 0XX
Facsimile x00 000 000-0000
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq. Telephone:
(000) 000-0000
Facsimile: (000) 000-0000
S-
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Second Priority Notes Trustee
By: /s/ Xxxxxxx Xxxx
Title: Corporate Trust Officer
Notice Address:
Xxxxx Fargo Bank Minnesota, National
Association
Corporate Trust Services
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Third Priority Notes Trustee
By: /s/ Xxxxxxx Xxxx
Title: Corporate Trust Officer
Notice Address:
Xxxxx Fargo Bank Minnesota, National Association
Corporate Trust Services
Xxxxx Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP NORTH AMERICA, INC.,
as Sharing Agent,
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP NORTH AMERICA, INC.,
as U.S. Collateral Agent,
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President
Notice Address:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention:
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-
CITICORP TRUSTEE COMPANY LIMITED,
as Euro Collateral Agent,
By: /s/ Xxxx X. X'Xxxx
Name: Xxxx X. X'Xxxx
Title: Vice President
Notice Address:
With a copy to:
