EXECUTION COPY
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CROWN EUROPEAN HOLDINGS SA
as Issuer
the Guarantors named herein
and
Xxxxx Fargo Bank Minnesota, National Association
as Trustee
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INDENTURE
Dated as of February 26, 2003
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10 7/8% Third Priority Senior Secured Notes due 2013
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310 (a)(1).................................................7.10
(a)(2).................................................7.10
(a)(3).................................................N.A.
(a)(4).................................................N.A.
(a)(5)................................................ N.A.
(b)....................................................7.08; 7.10; 12.02
(b)(1).................................................7.10
(c)....................................................N.A.
311 (a)....................................................7.11
(b)....................................................7.11
(c)....................................................N.A.
312 (a)....................................................2.06
(b)....................................................12.03
(c)....................................................12.03
313 (a)....................................................7.06
(b)(1).................................................11.08
(b)(2).................................................7.06
(c)....................................................7.06; 12.02
(d)....................................................7.06
314 (a)....................................................4.06; 4.17; 12.02
(b)....................................................11.02
(c)(1).................................................12.04
(c)(2).................................................12.04
(c)(3).................................................N.A.
(d)....................................................11.08
(e)....................................................12.05
(f)....................................................N.A.
315 (a)....................................................7.01(b)
(b)....................................................7.05; 12.02
(c)....................................................7.01(a)
(d)....................................................7.01(c)
(e)....................................................6.12
316 (a) (last sentence)....................................2.10
(a)(1)(A)..............................................6.05
(a)(1)(B)..............................................6.04
(a)(2).................................................N.A.
(b)....................................................6.08
(c)....................................................8.04
317 (a)(1).................................................6.09
(a)(2).................................................6.10
(b)....................................................2.05; 7.12
318 (a)....................................................12.01
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N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture
TABLE OF CONTENTS
Page
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ARTICLE One
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.....41
SECTION 1.03. Rules of Construction.................................41
ARTICLE Two
THE SECURITIES
SECTION 2.01. Amount of Notes.......................................42
SECTION 2.02. Form and Dating; Legends..............................42
SECTION 2.03. Execution and Authentication..........................43
SECTION 2.04. Registrar and Paying Agent............................43
SECTION 2.05. Paying Agent To Hold Money in Trust...................44
SECTION 2.06. Noteholder Lists......................................44
SECTION 2.07. Transfer and Exchange.................................45
SECTION 2.08. Replacement Notes.....................................45
SECTION 2.09. Outstanding Notes.....................................46
SECTION 2.10. Treasury Notes........................................46
SECTION 2.11. Temporary Notes.......................................47
SECTION 2.12. Cancellation..........................................47
SECTION 2.13. Defaulted Interest....................................47
SECTION 2.14. CUSIP, ISIN and Common Code Numbers...................48
SECTION 2.15. Deposit of Moneys.....................................48
SECTION 2.16. Book-Entry Provisions for Global Notes................48
SECTION 2.17. Transfer and Exchange of Notes........................49
SECTION 2.18. Computation of Interest...............................57
ARTICLE Three
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee................57
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed..........57
SECTION 3.03. Notice of Redemption..................................58
SECTION 3.04. Effect of Notice of Redemption........................59
SECTION 3.05. Deposit of Redemption Price...........................59
SECTION 3.06. Notes Redeemed in Part................................59
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ARTICLE Four
COVENANTS
SECTION 4.01. Payment of Notes......................................60
SECTION 4.02. Maintenance of Office or Agency.......................60
SECTION 4.03. Legal Existence.......................................60
SECTION 4.04. Maintenance of Properties; Insurance;
Compliance with Law................................61
SECTION 4.05. Waiver of Stay, Extension or Usury Laws...............61
SECTION 4.06. Compliance Certificate................................62
SECTION 4.07. Taxes.................................................62
SECTION 4.08. Repurchase at the Option of Holders upon Change
of Control.........................................63
SECTION 4.09. Limitation on Incurrence of Indebtedness
and Issuance of Preferred Stock....................65
SECTION 4.10. Limitation on Restricted Payments.....................69
SECTION 4.11. Limitation on Liens...................................73
SECTION 4.12. Limitation on Asset Sales.............................74
SECTION 4.13. Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries.....79
SECTION 4.14. Limitation on Transactions with Affiliates............82
SECTION 4.15. Limitation on Sale and Leaseback Transactions.........83
SECTION 4.16. Payment of Additional Amounts.........................84
SECTION 4.17. Reports to Holders....................................86
SECTION 4.18. Limitation on Creation of Subsidiaries................87
SECTION 4.19. Suspension of Certain Covenants in Event
of Investment Grade Rating..........................88
ARTICLE Five
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets..............89
SECTION 5.02. Successor Person Substituted..........................92
ARTICLE Six
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.....................................93
SECTION 6.02. Acceleration of Maturity; Rescission..................95
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SECTION 6.03. Other Remedies........................................96
SECTION 6.04. Waiver of Existing Defaults and Events of Default.....96
SECTION 6.05. Control by Majority...................................97
SECTION 6.06. Limitation on Suits...................................97
SECTION 6.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.........................98
SECTION 6.08. Rights of Holders To Receive Payment..................98
SECTION 6.09. Collection Suit by Trustee............................98
SECTION 6.10. Trustee May File Proofs of Claim......................98
SECTION 6.11. Priorities............................................99
SECTION 6.12. Undertaking for Costs.................................99
ARTICLE Seven
TRUSTEE
SECTION 7.01. Duties of Trustee....................................100
SECTION 7.02. Rights of Trustee....................................101
SECTION 7.03. Individual Rights of Trustee.........................102
SECTION 7.04. Trustee's Disclaimer.................................102
SECTION 7.05. Notice of Defaults...................................103
SECTION 7.06. Reports by Trustee to Holders........................103
SECTION 7.07. Compensation and Indemnity...........................103
SECTION 7.08. Replacement of Trustee...............................105
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc......106
SECTION 7.10. Eligibility; Disqualification........................106
SECTION 7.11. Preferential Collection of Claims Against Company....106
SECTION 7.12. Paying Agents........................................106
ARTICLE Eight
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 8.01. Without Consent of Noteholders.......................107
SECTION 8.02. With Consent of Noteholders..........................107
SECTION 8.03. Compliance with Trust Indenture Act..................110
SECTION 8.04. Revocation and Effect of Consents....................110
SECTION 8.05. Notation on or Exchange of Notes.....................110
SECTION 8.06. Trustee To Sign Amendments, etc......................111
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ARTICLE Nine
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture...............................111
SECTION 9.02. Legal Defeasance.....................................112
SECTION 9.03. Covenant Defeasance..................................113
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance......113
SECTION 9.05. Deposited Money and U.S. Government Obligations
To Be Held in Trust................................115
SECTION 9.06. Reinstatement........................................115
SECTION 9.07. Moneys Held by Paying Agent..........................116
SECTION 9.08. Moneys Held by Trustee...............................116
ARTICLE Ten
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee............................................117
SECTION 10.02. Execution and Delivery of Note Guarantee.............118
SECTION 10.03. Release of Guarantors................................118
SECTION 10.04. Waiver of Subrogation................................120
SECTION 10.05. Notice to Trustee....................................120
SECTION 10.06. Limitation on Guarantor's Liability..................121
ARTICLE Eleven
SECURITY DOCUMENTS; PROCEEDS SHARING AGREEMENT
SECTION 11.01. Security Documents...................................123
SECTION 11.02. Recordings and Opinions..............................125
SECTION 11.03. Possession, Use and Release of Collateral............125
SECTION 11.04. Suits To Protect Collateral..........................126
SECTION 11.05. Purchaser Protected..................................127
SECTION 11.06. Powers Exercisable by Receiver or Trustee............127
SECTION 11.07. Determinations Relating to Collateral................127
SECTION 11.08. Certificates of the Company and the Guarantors.......128
SECTION 11.09. Certificates of the Trustee..........................128
SECTION 11.10. Termination of Security Interest.....................128
SECTION 11.11. Euro Collateral Agent as Joint Creditor..............129
SECTION 11.12. Matters Relating to Proceeds Sharing Agreement.......129
ARTICLE Twelve
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.........................131
SECTION 12.02. Notices..............................................131
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SECTION 12.03. Communications by Holders with Other Holders.........133
SECTION 12.04. Certificate and Opinion as to Conditions Precedent...134
SECTION 12.05. Statements Required in Certificate and Opinion.......134
SECTION 12.06. Rules by Trustee and Agents..........................134
SECTION 12.07. Business Days; Legal Holidays........................134
SECTION 12.08. Governing Law........................................135
SECTION 12.09. No Adverse Interpretation of Other Agreements........135
SECTION 12.10. Successors...........................................135
SECTION 12.11. Multiple Counterparts................................135
SECTION 12.12. Table of Contents, Headings, etc.....................135
SECTION 12.13. Separability.........................................135
SECTION 12.14. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities..............................136
SECTION 12.15. Currency of Account; Conversion of Currency;
Foreign Exchange Restrictions.....................137
SIGNATURES.................................................................S-1
EXHIBITS
Exhibit A-1. Form of Restricted Note............................A-1-1
Exhibit A-2. Form of Unrestricted Note..........................A-2-1
Exhibit B. Form of Private Placement Legend.....................B-1
Exhibit C. Form of Legend for Global Note.......................C-1
Exhibit D. Form of Certificate of Transfer......................D-1
Exhibit E. Form of Certificate of Exchange......................E-1
Exhibit F. Form of Certificate from Acquiring Institutional
Accredited Investor.............................F-1
Exhibit G. Form of Note Guarantee...............................G-1
Exhibit H. Form of Euro Intercreditor Agreement.................H-1
Exhibit I. Form of Proceeds Sharing Agreement...................I-1
Exhibit J. Form of Shared Pledge Agreement......................J-1
Exhibit K. Form of U.S. Intercreditor Agreement.................K-1
Exhibit L. Form of U.S. Security Agreement......................L-1
Exhibit M. Form of CEH Excess Proceeds Account Agreement........M-1
Exhibit N. Form of CEH Pledge Agreement.........................N-1
Exhibit O. Form of Finance PLC Proceeds Account Agreement.......O-1
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INDENTURE, dated as of February 26, 2003, among Crown European Holdings SA,
a French societe anonyme, as issuer (the "Company"), the Guarantors (as defined)
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and Xxxxx Fargo Bank Minnesota, National Association, as trustee (the
"Trustee").
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Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Notes.
ARTICLE One
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
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"Accounts Receivable Subsidiary" means a Subsidiary of Parent:
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(1) that is formed solely for the purpose of, and that engages in no
activities other than activities in connection with, financing accounts
receivable of Parent and/or its Restricted Subsidiaries;
(2) that is designated by the Board of Directors of Parent as an
Accounts Receivable Subsidiary pursuant to a Board of Directors' resolution
set forth in an Officers' Certificate and delivered to the Trustee;
(3) that has total assets at the time of such creation and designation
with a book value of $10,000 or less;
(4) no portion of the Indebtedness or any other obligation (contingent
or otherwise) of which (a) is at any time Guaranteed by Parent or any
Restricted Subsidiary of Parent (excluding Guarantees of obligations (other
than any Guarantee of Indebtedness) pursuant to Standard Securitization
Undertakings), (b) is at any time recourse to or obligates Parent or any
Restricted Subsidiary of Parent in any way, other than pursuant to Standard
Securitization Undertakings or (c) subjects any asset of Parent or any
other Restricted Subsidiary of Parent, directly or indirectly, contingently
or otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings (such Indebtedness, "Non-Recourse Accounts
Receivable Subsidiary Indebtedness");
(5) with which neither Parent nor any Restricted Subsidiary of Parent
has any material contract, agreement, arrangement or understanding other
than contracts, agreements, arrangements and understandings entered into in
the ordinary course of business on terms no less favorable to Parent or
such Restricted Subsidiary than those that might be obtained at the time
from Persons that are not Affiliates of Parent in connection with a
Qualified Receivables Transaction and fees payable in the ordinary course
of business in connection with servicing accounts receivable in connection
with such a Qualified Receivables Transaction; and
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(6) with respect to which neither Parent nor any Restricted Subsidiary
of Parent has any obligation (a) to subscribe for additional shares of
Capital Stock or other Equity Interests therein or make any additional
capital contribution or similar payment or transfer thereto or (b) to
maintain or preserve the solvency or any balance sheet term, financial
condition, level of income or results of operations thereof.
"Acquired Debt" means, with respect to any specified Person:
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(1) Indebtedness of any other Person existing at the time such other
Person merges with or into or becomes a Restricted Subsidiary of such
specified Person, including Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by
such specified Person.
"Additional Amounts" has the meaning set forth in Section 4.16.
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"Additional Bank Collateral" has the meaning set forth in the Intercreditor
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Agreements.
"Additional Euro Stock Collateral" has the meaning set forth in the Euro
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Intercreditor Agreement
"Additional Notes" has the meaning set forth in Section 2.01.
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"Additional Pari Passu First Priority Indebtedness" means Pari Passu
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Indebtedness incurred in compliance with the terms of this Indenture (other than
Indebtedness owed to a Subsidiary or Affiliate of Parent), which Indebtedness is
secured by a first priority Lien pursuant to clause (1) of the definition of
"Permitted Collateral Liens" on all or any portion of the Collateral to the
extent and in the manner provided for in this Indenture and the Security
Documents, as such Indebtedness may be amended or refinanced from time to time.
"Additional Pari Passu Second Priority Indebtedness" means Pari Passu
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Indebtedness incurred in compliance with the terms of this Indenture (other than
Indebtedness owed to a Subsidiary or Affiliate of Parent), which Indebtedness is
secured by a second priority Lien pursuant to clause (2)(b) of the definition of
"Permitted Collateral Liens" on all or any portion of the Collateral to the
extent and in the manner provided for in this Indenture and the Security
Documents, as such Indebtedness may be amended or refinanced from time to time.
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"Additional Pari Passu Third Priority Indebtedness" means Pari Passu
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Indebtedness incurred in compliance with the terms of this Indenture (other than
Indebtedness owed to a Subsidiary or Affiliate of Parent), which Indebtedness is
secured by a third priority Lien pursuant to clause (2)(d) of the definition of
"Permitted Collateral Liens" on all or any portion of the Collateral to the
extent and in the manner provided for in this Indenture and the Security
Documents, as such Indebtedness may be amended or refinanced from time to time.
"Additional Second Priority Notes" means Second Priority Notes issued by
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the Company under the Second Priority Notes Indenture after the date on which
Second Priority Notes are first issued under the Second Priority Notes
Indenture.
"Additional Subsidiary Borrower Collateral" has the meaning set forth in
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the Euro Intercreditor Agreement.
"Additional U.S. Stock Collateral" has the meaning set forth in the U.S.
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Inter-creditor Agreement.
"Adjusted Net Assets" has the meaning set forth in Section 10.06.
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"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or, indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise. No Person (other than
Parent or any Subsidiary of Parent) in whom an Accounts Receivable Subsidiary
makes an Investment in connection with a financing of accounts receivable will
be deemed to be an Affiliate of Parent or any of its Subsidiaries solely by
reason of such Investment.
"Affiliate Transaction" has the meaning set forth in Section 4.14.
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"Agent" means any Registrar, Paying Agent, or agent for service or notices
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and demands.
"Agent Members" has the meaning set forth in Section 2.16.
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"amend" means to amend, supplement, restate, amend and restate or otherwise
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modify; and "amendment" shall have a correlative meaning.
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"Applicable Treasury Rate" for any Make-Whole Redemption Date, means the
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yield to maturity at the time of computation of United States Treasury
securities with a constant maturity (as compiled and published in the most
recent Federal Reserve Statistical Release H.15(519) that has become publicly
available at least two Business Days prior to the Make-Whole Redemption Date
(or, if such Statistical Release is no longer published, any publicly available
source of similar market data)) most nearly equal to the period from the
Make-Whole Redemption Date to March 1, 2008; provided, however, that if the
period from the Make-Whole Redemption Date to March 1, 2008 is not equal to the
constant maturity of a United States Treasury security for which a weekly
average yield is given, the Applicable Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a year) from the weekly
average yields of United States Treasury securities for which such yields are
given except that if the period from the Make-Whole Redemption Date to March 1,
2008 is less than one year, the weekly average yield on actually traded United
States Treasury securities adjusted to a constant maturity of one year shall be
used.
"asset" means any asset or property, whether real, personal or mixed,
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tangible or intangible.
"Asset Sale" means:
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(1) the Transfer by Parent or any Restricted Subsidiary of any
property or assets (provided that the Transfer of all or substantially all
of the assets of Parent, Crown or the Company and their respective
Restricted Subsidiaries, taken as a whole, will be governed by the
applicable provisions of Article Five and not by the provisions of Section
4.12); and
(2) the issue or sale by Parent or any of its Restricted Subsidiaries
of Equity Interests of any of Parent's Restricted Subsidiaries.
Notwithstanding the foregoing, the following will not be deemed to be Asset
Sales:
(1) sales of inventory in the ordinary course of business;
(2) sales of accounts receivables to the Accounts Receivable
Subsidiary pursuant to a Qualified Receivables Transaction for the Fair
Market Value thereof, including cash in an amount at least equal to 75% of
the Fair Market Value thereof;
(3) any transfer of accounts receivable, or a fractional undivided
interest therein, by an Accounts Receivable Subsidiary in a Qualified
Receivables Transaction;
(4) any Transfer of assets (including, without limitation, Equity
Interests of any Subsidiary) in a single transaction or a series of related
transactions for which Parent and its Restricted Subsidiaries receive
aggregate consideration or which assets have a Fair Market Value of less
than $10,000,000;
(5) a Transfer of assets by Parent to a Restricted Subsidiary (or to a
Person that becomes a Restricted Subsidiary upon the consummation of such
Transfer) or by a Restricted Subsidiary to Parent or to another Restricted
Subsidiary (or to a Person that becomes a Restricted Subsidiary upon the
consummation of such Transfer);
(6) an issuance of Equity Interests by a Restricted Subsidiary to
Parent or to another Restricted Subsidiary;
(7) a Restricted Payment that is permitted by Section 4.10;
(8) the sale or disposition of cash or Cash Equivalents;
(9) any exchange of like property pursuant to Section 1031 of the
Internal Revenue Code of 1986, as amended;
(10) the creation of Liens otherwise permitted under this Indenture,
including, without limitation, a pledge of assets otherwise permitted by
this Indenture;
(11) the grant in the ordinary course of business of any non-exclusive
license of patents, trademarks, registrations thereof and other similar
intellectual property; and
(12) the sale or disposition of obsolete, damaged or worn out assets
or assets no longer used or useful, in each case in the ordinary course of
business.
"Asset Sale Offer" has the meaning set forth in Section 4.12.
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"Asset Sale Offer Payment Date" has the meaning set forth in Section 4.12.
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"Asset Sale Offer Trigger Date" has the meaning set forth in Section 4.12.
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"Attributable Debt" in respect of a Sale and Leaseback Transaction means,
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at the time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with GAAP) of
the obligation of the lessee for net rental payments during the remaining term
of the lease included in such Sale and Leaseback Transaction (including any
period for which such lease has been extended).
"Bank Agents" means the Persons acting as the duly authorized
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representatives of the Lenders pursuant to the New Credit Facility.
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"Bank Collateral" means, collectively, all of the property and assets,
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including without limitation, the U.S. Collateral and the Euro Collateral, that
are from time to time subject to or are required to be subject to the Liens of
the New Credit Facility and the security documents relating thereto (including,
without limitation, the Security Documents).
"Bankruptcy Law" means Title 11 of the United States Code, as amended, or
---------------
any similar federal, state, local or foreign law for the relief of debtors.
"Base Currency" has the meaning set forth in Section 12.15.
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"Belgian Guarantor" has the meaning set forth in Section 10.06.
-----------------
"Board of Directors" means, with respect to any Person, the board of
-------------------
directors or comparable governing body of such Person.
"Business Day" has the meaning set forth in Section 12.07.
------------
"Capital Lease Obligation" means, at the time any determination thereof is
------------------------
to be made, the amount of the liability in respect of a capital lease that would
at such time be so required to be capitalized on the balance sheet in accordance
with GAAP.
"Capital Stock" means:
-------------
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock; and
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited).
"Cash Equivalents" means:
-----------------
(1) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or any member state of the
European Union (as it exists on the Issue Date) or issued by any agency or
instrumentality thereof and backed by the full faith and credit of the
United States of America or such member state of the European Union, in
each case maturing within one year from the date of acquisition thereof;
(2) marketable direct obligations issued by any State of the United
States of America or any political subdivision of any such State or any
public instrumentality thereof maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Xxxxx'x;
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(3) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Xxxxx'x;
(4) time deposits, demand deposits, certificates of deposit,
Eurodollar time deposits or bankers' acceptances maturing within one year
from the date of acquisition thereof or overnight bank deposits, in each
case, issued by any bank organized under the laws of any member state of
the European Union (as it exists on the Issue Date), the United States of
America or any State thereof or the District of Columbia or any U.S. branch
of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $250,000,000;
(5) repurchase obligations with a term of not more than 90 days for
underlying securities of the types described in clause (1) above entered
into with any bank meeting the qualifications specified in clause (4)
above; and
(6) investments in money market funds which invest substantially all
their assets in securities of the types described in clauses (1) through
(5) above.
"CEH Excess Proceeds Account Agreement" means the Account Bank Agreement in
-------------------------------------
the form of Exhibit M hereto dated as of February 26, 2003 between the Company
and Citibank, N.A., as account bank, as amended from time to time.
"CEH Pledge Agreement" means the CEH Pledge Agreement in the form of
----------------------
Exhibit N hereto dated as February 26, 2003 between the Company and Citicorp
Trustee Company Limited, as Euro Collateral Agent, as amended from time to time.
"Change of Control" means the occurrence of any of the following:
-----------------
(1) any Transfer (other than by way of merger or consolidation) of all
or substantially all of the assets of Parent and its Subsidiaries taken as
a whole to any "person" (as defined in Section 13(d) of the Exchange Act)
or "group" (as defined in Sections 13(d)(3) and 14(d)(2) of the Exchange
Act) other than any Transfer to Parent or one or more Restricted
Subsidiaries of Parent;
(2) the adoption of a plan for the liquidation or dissolution of
Parent or the Company (other than in a transaction that complies with
Article Five);
(3) Parent consolidates with, or merges with or into, another "person"
(as defined above) or "group" (as defined above) in a transaction or series
of related transactions in which the Voting Stock of Parent is converted
into or exchanged for cash, securities or other assets, other than any
transaction where (a) the outstanding Voting Stock of Parent is converted
into or exchanged for Voting Stock (other than Disqualified Stock) of the
surviving or transferee corporation and (b) the "beneficial owners" (as
defined in Rule 13d-3 under the Exchange Act) of the outstanding Voting
Stock of Parent immediately prior to such transaction own beneficially,
directly or indirectly through one or more Subsidiaries, not less than a
majority of the voting power of the total outstanding Voting Stock of the
surviving or transferee corporation immediately after such transaction;
-8-
(4) the consummation of any transaction or series of related
transactions (including, without limitation, by way of merger or
consolidation), the result of which is that any "person" (as defined above)
or "group" (as defined above) becomes, directly or indirectly, the
"beneficial owner" (as defined above) of more than 50% of the voting power
of the Voting Stock of Parent;
(5) during any consecutive two-year period, the first day on which a
majority of the members of the Board of Directors of Parent who were
members of the Board of Directors of Parent at the beginning of such period
are not Continuing Directors; or
(6) the first day on which Parent fails to own, either directly or
indirectly through one or more Wholly Owned Restricted Subsidiaries, 100%
of the issued and outstanding Equity Interests of Crown or the Company.
"Change of Control Offer" has the meaning set forth in Section 4.08.
-----------------------
"Change of Control Payment" has the meaning set forth in Section 4.08.
-------------------------
"Change of Control Payment Date" has the meaning set forth in Section 4.08.
------------------------------
"Clearstream" means Clearstream Banking, S.A.
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"Collateral" means, collectively, all of the property and assets that are
----------
from time to time subject to or are required to be subject to the Lien of this
Indenture and the Security Documents, which shall at all times include the Bank
Collateral other than the Additional Bank Collateral.
"Collateral Agents" means the parties named as collateral agents in the
------------------
Security Documents, in each case until a successor replaces it pursuant to the
applicable Security Document and thereafter means the successor.
"Commission" means the United States Securities and Exchange Commission.
----------
-9-
"Company" means the party named as such in the preamble to this Indenture
-------
until a successor party replaces such party pursuant to Article Five of this
Indenture and thereafter means the successor.
"Consolidated EBITDA" means, with respect to any Person for any period, the
-------------------
Consolidated Net Income of such Person and its Restricted Subsidiaries for such
period, plus, to the extent deducted in computing Consolidated Net Income:
(1) provision for taxes based on income or profits of such Person and
its Restricted Subsidiaries for such period;
(2) Consolidated Interest Expense of such Person for such period; and
(3) depreciation and amortization (including amortization of goodwill
and other intangibles) and all other non-cash charges (excluding any such
non-cash charge to the extent that it represents an accrual of or reserve
for cash charges in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its Restricted
Subsidiaries for such period,
in each case, on a consolidated basis determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash charges of,
a Restricted Subsidiary of a Person shall be added to Consolidated Net Income to
compute Consolidated EBITDA only to the extent (and in the same proportion) that
the net income or loss of such Restricted Subsidiary was included in calculating
the Consolidated Net Income of such Person.
"Consolidated Interest Expense" means, with respect to any Person for any
-------------------------------
period, the interest expense of such Person and its Restricted Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP
(including amortization of original issue discount and deferred financing costs,
non-cash interest payments, the interest component of all payments associated
with Capital Lease Obligations, capitalized interest, net payments, if any,
pursuant to Hedging Obligations and imputed interest with respect to
Attributable Debt).
"Consolidated Net Income" means, with respect to any Person for any period,
-----------------------
the aggregate of the net income of such Person and its Restricted Subsidiaries
for such period, on a consolidated basis, determined in accordance with GAAP;
provided that:
(1) the net income (but not loss) of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends
or distributions paid to the referent Person or (subject to clause (4)
below) a Restricted Subsidiary thereof in cash;
-10-
(2) the net income of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition shall be
excluded;
(3) the cumulative effect of a change in accounting principles shall
be excluded;
(4) the net income of any Restricted Subsidiary shall be excluded to
the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that net income is not
permitted, directly or indirectly, by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, law, statute, rule
or governmental regulation applicable to that Restricted Subsidiary or its
stockholders;
(5) in the case of a successor to such Person by consolidation or
merger or as a transferee of such Person's assets, any earnings of the
successor corporation prior to such consolidation, merger or transfer of
assets shall be excluded;
(6) any net gain or loss resulting from an Asset Sale by the Person in
question or any of its Restricted Subsidiaries other than in the ordinary
course of business shall be excluded; and
(7) extraordinary gains and losses shall be excluded.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
----------------------------------
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense (to the extent
included in said aggregate amount of assets) and other like intangibles, all as
set forth in the most recent consolidated balance sheet of Parent and its
Restricted Subsidiaries and computed in accordance with GAAP.
"Consolidated Tangible Assets" means the aggregate amount of assets (less
------------------------------
applicable reserves and other properly deductible items) after deducting
therefrom all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense (to the extent included in said aggregate amount of assets)
and other like intangibles, all as set forth in the most recent consolidated
balance sheet of Parent and its Restricted Subsidiaries and computed in
accordance with GAAP. Consolidated Tangible Assets shall be calculated after
giving effect to the transaction giving rise to the need to calculate
Consolidated Tangible Assets.
"Constar" means Constar International Inc., a Delaware corporation, and its
-------
successors and assigns.
"Constar Agreements" means each of the agreements entered into between
-------------------
Crown and Constar in connection with its initial public offering and described
under the heading "Crown's Business -- Relationship with Constar" in the
Offering Memorandum, as such agreements are in effect on the Issue Date.
-11-
"Contested Collateral Lien Conditions" means the following conditions:
------------------------------------
(1) any proceeding instituted contesting such Lien shall conclusively
operate to stay the sale or forfeiture of any portion of the Collateral on
account of such Lien; and
(2) in the event the amount of any such Lien shall exceed $5,000,000,
at the option and upon request of the applicable Collateral Agent, Parent
or the applicable Restricted Subsidiary shall maintain cash reserves in an
amount sufficient to pay and discharge such Lien and the Collateral Agent's
reasonable estimate of all interest and penalties related thereto.
"Continuing Directors" means, as of any date of determination, any member
---------------------
of the Board of Directors of the relevant Person who:
(1) was a member of such Board of Directors on the Issue Date; or
(2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or election.
"Corporate Trust Office" means the office of the Trustee at which at any
------------------------
particular time its corporate trust business shall be principally administered,
which office as of the date hereof is listed in Section 12.02.
"Covenant Defeasance" has the meaning set forth in Section 9.03.
-------------------
"Covered Debt" has the meaning set forth in the Proceeds Sharing Agreement.
------------
"Credit Facilities" means one or more debt facilities (including, without
-----------------
limitation, the New Credit Facility) or commercial paper facilities, in each
case with banks or other lenders providing for revolving credit loans, term
loans, notes or letters of credit, in each case as any such agreement may be
amended or refinanced, including any agreement(s) extending the maturity of or
refinancing (including increasing the amount of available borrowings thereunder
(provided that such increase in borrowings is permitted by Section 4.09) or
adding Parent or Subsidiaries of Parent as borrowers or guarantors thereunder)
all or any portion of the Indebtedness under such agreement(s) or any successor
or replacement agreement and whether by the same or any other agent, lender or
group of lenders or creditor or group of creditors.
-12-
"Crown" means Crown Cork & Seal Company, Inc., a Pennsylvania corporation,
-----
until a successor replaces such party pursuant to Article Five of this
Indenture.
"Default" means any event that is, or with the passage of time or the
-------
giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Global Notes, The Depository Trust
----------
Company or another Person designated as depository by the Company, which Person
must be a clearing agency registered under the Exchange Act.
"Disqualified Stock" means any Capital Stock that, by its terms (or by the
-------------------
terms of any security into which it is convertible or for which it is
exchangeable, except to the extent such capital stock is exchangeable into
Indebtedness at the option of the issuer thereof and only subject to the terms
of any debt instrument to which such issuer is a party), or upon the happening
of any event, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or redeemable at the option of the holder thereof, in
whole or in part, or convertible or exchangeable into Indebtedness on or prior
to the Maturity Date of the Notes; provided, however, that any Capital Stock
that would constitute Disqualified Stock solely because the holders thereof have
the right to require Parent or a Restricted Subsidiary to repurchase such
Capital Stock upon the occurrence of a change of control or an asset sale shall
not constitute Disqualified Stock if the terms of such Capital Stock provide
that the Parent or such Restricted Subsidiary may not repurchase or redeem any
such Capital Stock pursuant to such provisions unless such repurchase or
redemption complies with Section 4.10.
"Dollar Second Priority Notes" means U.S. Dollar denominated 9 1/2% Second
----------------------------
Priority Senior Secured Notes due 2011 issued by the Company pursuant to the
Second Priority Notes Indenture.
"Domestic Subsidiary" means a Restricted Subsidiary of Parent which is
--------------------
organized under the laws of the United States or any State thereof or the
District of Columbia.
"Equity Interests" means Capital Stock and all warrants, options or other
-----------------
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering" means any public or private sale of common stock (other
----------------
than Disqualified Stock) of Parent (other than public offerings pursuant to Form
S-8 or otherwise relating to Equity Interests issuable under any employee
benefit plan of Parent).
"Euroclear" means Euroclear Bank S.A./N.V.
---------
"Euro Collateral" has the meaning set forth in the Euro Intercreditor
----------------
Agreement.
-13-
"Euro Collateral Agent" means the party named as Euro collateral agent in
-----------------------
the applicable Security Documents, in each case until a successor replaces it
pursuant to the applicable Security Document and thereafter means the successor.
"Euro Intercreditor Agreement" means the Euro Intercreditor and Collateral
-----------------------------
Agency Agreement in the form of Exhibit H hereto dated as of February 26, 2003
---------
among the Secured Parties named therein, Citicorp Trustee Company Limited, as
Euro Collateral Agent, the Company and its Subsidiaries named therein, and the
other persons who may become parties thereto from time to time pursuant to and
in accordance with the terms thereof, as amended from time to time.
"Euro Second Priority Notes" means the Euro denominated 10 1/4% Second
-----------------------------
Priority Senior Secured Notes due 2011 issued by the Company pursuant to the
Second Priority Notes Indenture.
"Event of Default" has the meaning set forth in Section 6.01.
----------------
"Excess Proceeds" has the meaning set forth in Section 4.12.
---------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company with terms
----------------
substantially identical to the Notes issued in exchange for an equal principal
amount of Notes pursuant to an exchange offer registered under the Securities
Act in accordance with the terms of the Registration Rights Agreement.
"Excluded Securities" means, collectively, the Additional U.S. Stock
--------------------
Collateral, the Additional Euro Stock Collateral and, to the extent it
constitutes a "security" within the meaning of the Securities Act, the
Additional Subsidiary Borrower Collateral.
"Existing Indebtedness" means Indebtedness of Parent and its Restricted
----------------------
Subsidiaries in existence on the Issue Date after giving effect to the intended
use of proceeds from the issuance of the Notes and the Second Priority Notes and
the borrowings under the New Credit Facility on the Issue Date, until such
amounts are repaid.
"Existing Notes" means each of the following to the extent outstanding on
---------------
the Issue Date:
(1) $200,000,000 original principal amount of 6 3/4% Notes due 2003 of
Crown issued under the 0000 Xxxxxxxxx;
-14-
(2) $300,000,000 original principal amount of 8 3/8% Notes due 2005 of
Crown issued under the 0000 Xxxxxxxxx;
(3) $200,000,000 original principal amount of 8% Debentures due 2023
of Crown issued under the 0000 Xxxxxxxxx;
(4) $350,000,000 original principal amount of 7 3/8% Debentures due
2026 of Crown issued under the 0000 Xxxxxxxxx;
(5) $150,000,000 original principal amount of 7 1/2% Debentures due
2096 of Crown issued under the 0000 Xxxxxxxxx;
(6) $200,000,000 original principal amount of 6 3/4% Notes due 2003 of
Crown Cork & Seal Finance PLC issued under the 0000 Xxxxxxxxx;
(7) $300,000,000 original principal amount of 7% Notes due 2006 of
Crown Cork & Seal Finance PLC issued under the 0000 Xxxxxxxxx;
(8) $200,000,000 original principal amount of 6 3/4% Notes due 2003 of
Crown Cork & Seal Finance, S.A. issued under the 0000 Xxxxxxxxx;
(9) (euro)300,000,000 original principal amount of 6% Senior Notes due
2004 of Crown Finance S.A. issued under the Fiscal and Paying Agency
Agreement dated as of December 6, 1999 among Parent, Crown Finance S.A. and
Citibank, N.A. as paying agent; and
(10) $105,000,000 original principal amount of 7.54% Notes due 2005 of
CarnaudMetalbox Investments (USA), Inc. issued under the Note Purchase
Agreement dated as of May 4, 1993 among CarnaudMetalbox Investments (USA),
Inc. and the noteholders party thereto, as amended.
"Fair Market Value" means, with respect to any asset, the price (after
------------------
taking into account any liabilities relating to such assets) that would be
negotiated in an arm's-length transaction for cash between a willing seller and
a willing and able buyer, neither of which is under any compulsion to complete
the transaction, as such price is determined in good faith by management of
Parent or by the Board of Directors of Parent or a duly authorized committee
thereof. Fair Market Value (other than of any asset with a public trading
market) in excess of $10,000,000 shall be determined by the Board of Directors
of Parent acting reasonably and in good faith and shall be evidenced by a board
resolution delivered to the Trustee.
"Finance PLC Proceeds Account Agreement" means the Account Bank Agreement
----------------------------------------
in the form of Exhibit O hereto dated as of February 26, 2003 between the Crown
Cork & Seal Finance PLC and Citibank, N.A., as account bank, as amended from
time to time.
-15-
"Fixed Charge Coverage Ratio" as of any date of determination means the
-----------------------------
ratio of (a) the aggregate amount of Consolidated EBITDA for the period of the
most recent four consecutive fiscal quarters for which internal financial
statements are available to (b) Fixed Charges for such four fiscal quarters;
provided that:
(1) if Parent or any Restricted Subsidiary has (y) incurred any
Indebtedness or issued Preferred Stock since the beginning of such period
that remains outstanding on such date of determination or if the
transaction giving rise to the need to calculate the Fixed Charge Coverage
Ratio is an incurrence of Indebtedness or issuance of Preferred Stock or
both, Consolidated EBITDA and Fixed Charges for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness or
Preferred Stock (and the application of the proceeds thereof) as if the
incurrence of such Indebtedness or issuance of such Preferred Stock (and
the application of the proceeds thereof) had occurred on the first day of
such period or (z) repaid, retired, repurchased or redeemed any
Indebtedness or Preferred Stock of Parent or any Restricted Subsidiary
since the beginning of such period, Consolidated EBITDA and Fixed Charges
for such period shall be calculated after giving effect on a pro forma
basis to the repayment, retirement, repurchase or redemption of such
Indebtedness or Preferred Stock as if such Indebtedness or Preferred Stock
had been repaid, retired, repurchased or redeemed on the first day of such
period (except that, in the case of Indebtedness used to finance working
capital needs incurred under a revolving credit facility or similar
arrangement, the amount thereof shall be deemed to be the average daily
balance of such Indebtedness during such four-fiscal quarter period);
(2) if since the beginning of such period Parent or any Restricted
Subsidiary shall have Transferred any assets outside the ordinary course of
business, the Consolidated EBITDA for such period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) directly attributable
to the assets which are the subject of such Transfer for such period, or
increased by an amount equal to the Consolidated EBITDA (if negative)
directly attributable thereto for such period, and Fixed Charges for such
period shall be reduced by an amount equal to the Fixed Charges directly
attributable to any Indebtedness or Preferred Stock of Parent or any
Restricted Subsidiary repaid, repurchased, defeased, assumed by a third
person (to the extent Parent and its Restricted Subsidiaries are no longer
liable for such Indebtedness or Preferred Stock) or otherwise discharged
with respect to Parent and its continuing Restricted Subsidiaries in
connection with such Transfer for such period (or, if the Capital Stock of
any Restricted Subsidiary is sold, the Fixed Charges for such period
directly attributable to the Indebtedness or Preferred Stock of such
Restricted Subsidiary to the extent Parent and its continuing Restricted
Subsidiaries are no longer liable for such Indebtedness or Preferred Stock
after such sale);
-16-
(3) if since the beginning of such period Parent or any Restricted
Subsidiary (by merger or otherwise) shall have made an Investment in any
Restricted Subsidiary (or any Person which becomes a Restricted Subsidiary)
or an acquisition of assets, which acquisition constitutes all or
substantially all of an operating unit of a business, including any such
Investment or acquisition occurring in connection with a transaction
requiring a calculation to be made hereunder, Consolidated EBITDA and Fixed
Charges for such period shall be calculated after giving pro forma effect
thereto (including the incurrence of any Indebtedness or issuance of
Preferred Stock) as if such Investment or acquisition occurred on the first
day of such period;
(4) if since the beginning of such period any Person (that
subsequently became a Restricted Subsidiary or was merged with or into
Parent or any Restricted Subsidiary since the beginning of such period)
shall have made any Transfer of assets outside the ordinary course of
business, any Investment or acquisition of assets that would have required
an adjustment pursuant to clause (2) or clause (3) above if made by Parent
or a Restricted Subsidiary during such period, Consolidated EBITDA and
Fixed Charges for such period shall be calculated after giving pro forma
effect thereto as if such Transfer, Investment or acquisition occurred on
the first day of such period; and
(5) if during the beginning of such period Parent or any Restricted
Subsidiary shall have identified any operations as discontinued operations,
as determined in accordance with GAAP, the Consolidated EBITDA for such
period shall be reduced by an amount equal to the Consolidated EBITDA (if
positive) directly attributable to such discontinued operations or
increased by an amount equal to the Consolidated EBITDA (if negative)
directly attributable thereto.
For purposes of this definition, whenever pro forma effect is to be given to any
Investment, acquisition or Transfer of assets, the amount of income, earnings or
expense relating thereto and the amount of Fixed Charges associated with any
Indebtedness or Preferred Stock incurred in connection therewith, the pro forma
calculations shall be prepared in accordance with Regulation S-X promulgated by
the Commission. If any Indebtedness bears a floating rate of interest and is
being given pro forma effect, the interest of such Indebtedness shall be
calculated as if the rate in effect on the date of determination had been the
applicable rate for the entire period (taking into account any Hedging
Obligations applicable to such Indebtedness if such Hedging Obligations has a
remaining term in excess of 12 months).
"Fixed Charges" means, with respect to any Person for any period, the sum
-------------
of:
(1) the Consolidated Interest Expense of such Person for such period;
and
-17-
(2) any interest expense on Indebtedness of another Person that is (a)
Guaranteed by the referent Person or one of its Restricted Subsidiaries
(whether or not such Guarantee is called upon) or (b) secured by a Lien on
assets of such Person or one of its Restricted Subsidiaries (whether or not
such Lien is called upon); provided that with respect to clause (2)(b), the
amount of Indebtedness (and attributable interest expense) shall be equal
to the lesser of (x) the principal amount of the Indebtedness secured by
the assets of such Person or one of its Restricted Subsidiaries and (y) the
Fair Market Value of the assets securing such Indebtedness; and
(3) the product of (a) all cash dividend payments (and non-cash
dividend payments in the case of a Person that is a Restricted Subsidiary)
on any series of Preferred Stock of such Person, times (b) a fraction, the
numerator of which is one and the denominator of which is one minus the
then current combined federal, state and local statutory tax rate of such
Person, expressed as a decimal, in each case, on a consolidated basis and
in accordance with GAAP.
"French Guarantor" has the meaning set forth in Section 10.06.
----------------
"Future Guarantor" has the meaning set forth in Section 10.06.
----------------
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect on the Issue Date.
"German Guarantor" has the meaning set forth in Section 10.06.
----------------
"Global Note Legend" means the legend substantially in the form set forth
------------------
in Exhibit C.
"Global Notes" has the meaning set forth in Section 2.16.
------------
"Guarantee" means a guarantee (other than by endorsement of negotiable
---------
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, through letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness. "Guarantee" when used as a verb shall have a corresponding
---------
meaning.
"Guarantor" means:
---------
(1) Parent;
-18-
(2) each Restricted Subsidiary that executes and delivers a Note
Guarantee pursuant to Section 4.18; and
(3) each Restricted Subsidiary that otherwise executes and delivers a
Note Guarantee, in each case, until such time as such Restricted Subsidiary
is released from its Note Guarantee in accordance with the provisions of
this Indenture.
"Hedging Obligations" means, with respect to any Person, the obligations of
-------------------
such Person under:
(1) any interest rate protection agreements including, without
limitation, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements;
(2) any foreign exchange contracts, currency swap agreements or other
agreements or arrangements designed to protect such Person against
fluctuations in interest rates or foreign exchange rates;
(3) any commodity futures contract, commodity option or other similar
arrangement or agreement designed to protect such Person against
fluctuations in the prices of commodities; and
(4) indemnity agreements and arrangements entered into in connection
with the agreements and arrangements described in clauses (1), (2) and (3).
"Holder" or "Noteholder" means the Person in whose name a Note is
------ ----------
registered on the Registrar's books.
"incur" means, with respect to any Indebtedness (including Acquired Debt),
-----
to create, incur, issue, assume, Guarantee or otherwise become directly or
indirectly liable for or with respect to, or become responsible for, the payment
of such Indebtedness (including Acquired Debt). The term "incurrence" has a
corresponding meaning.
"Indebtedness" means, with respect to any Person, without duplication, and
------------
whether or not contingent:
(1) all indebtedness of such Person for borrowed money or for the
deferred purchase price of assets or services or which is evidenced by a
note, bond, debenture or similar instrument (but excluding trade accounts
payable and other accrued liabilities arising in the ordinary course of
business), to the extent it would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP;
-19-
(2) all Capital Lease Obligations of such Person;
(3) all obligations of such Person in respect of letters of credit or
bankers' acceptances issued or created for the account of such Person other
than obligations with regard to letters of credit securing obligations
(other than obligations of the type described in clause (1) above) entered
into in the ordinary course of business of such Person to the extent such
letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the tenth Business Day following
receipt by such Person of a demand for reimbursement following payment on
the letter of credit;
(4) net obligations of such Person under Hedging Obligations if and to
the extent such would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP;
(5) all Disqualified Stock issued by such Person, valued at the
greater of its voluntary or involuntary maximum fixed repurchase price;
(6) all Attributable Debt of such Person;
(7) to the extent not otherwise included, any Guarantee by such Person
of any other Person's indebtedness or other obligations described in
clauses (1) through (6) above; and
(8) all Indebtedness of the type described in clauses (1) through (7)
above of others secured by a Lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person; provided that the amount
of such Indebtedness shall be the lesser of (x) the Fair Market Value of
such asset at such date of determination and (y) the amount of such
Indebtedness.
For purposes hereof, the "maximum fixed repurchase price" of any Disqualified
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such Disqualified Stock as if such Disqualified
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to the Indenture, and if such price is based upon, or
measured by the Fair Market Value of, such Disqualified Stock, such Fair Market
Value is to be determined in good faith by the Board of Directors of the issuer
of such Disqualified Stock. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations as
described above at such date; provided that the amount outstanding at any time
of any Indebtedness issued with original issue discount shall be deemed to be
the face amount of such Indebtedness less the remaining unamortized portion of
the original issue discount of such Indebtedness at such time as determined in
conformity with GAAP. Notwithstanding the foregoing, Standard Securitization
Undertakings shall not constitute Indebtedness.
-20-
"Indenture" means this Indenture as amended, restated or supplemented from
---------
time to time.
"Independent Financial Advisor" means an accounting, appraisal or
---------------------------------
investment banking or consulting firm of national reputation in the United
States:
(1) which does not, and whose directors, officers and employees or
Affiliates do not, have a direct or indirect financial interest in Parent
or any of its Subsidiaries; and
(2) which, in the judgment of the Board of Directors of Parent, is
otherwise independent and qualified to perform the task for which it is to
be engaged.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., Deutsche Bank
-------------------
Securities Inc., ABN AMRO Incorporated and Xxxxxxxxx & Company, Inc.
"Institutional Accredited Investor" means an institution that is an
-----------------------------------
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Intercreditor Agreements" means, collectively, the U.S. Intercreditor
-------------------------
Agreement and the Euro Intercreditor Agreement.
"interest" means, with respect to the Notes, interest and Liquidated
--------
Damages, if any.
"Interest Payment Date" means the stated maturity of an installment of
-----------------------
interest on the Notes.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or
-------------------------
the equivalent) by Moody's and BBB- (or the equivalent) by S&P or the equivalent
rating by any Successor Rating Agency.
"Investments" means, with respect to any Person, all investments by such
-----------
Person in other Persons (including Affiliates) in the forms of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel, moving and
similar advances to officers, directors and employees and advances to customers,
in each case made in the ordinary course of business), purchases or other
acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that
an acquisition of assets,
-21-
Equity Interests or other securities by Parent for consideration consisting of
common equity securities of Parent shall not be deemed to be an Investment. If
Parent or any Restricted Subsidiary of Parent sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of Parent, or
any Restricted Subsidiary of Parent issues Equity Interests, such that, after
giving effect to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of Parent, Parent shall be deemed to have made an
Investment on the date of any such sale, disposition or issuance equal to the
Fair Market Value of the Equity Interests of such Person held by Parent or such
Restricted Subsidiary immediately following any such sale, disposition or
issuance.
"Issue Date" means February 26, 2003, the date on which Notes are first
----------
issued under this Indenture.
"Judgment Currency" has the meaning set forth in Section 12.15.
-----------------
"Legal Defeasance" has the meaning set forth in Section 9.02.
----------------
"Legal Holiday" has the meaning set forth in Section 12.07.
-------------
"Lenders" means the lenders from time to time under the New Credit
-------
Facility.
"Lien" means, with respect to any asset, any mortgage, deed of trust, deed
----
to secure debt, debenture, lien, pledge, charge, security interest,
hypothecation or encumbrance of any kind in respect of such asset, whether or
not filed, recorded or otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option or other agreement to sell or give a security interest in
and any filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" has the meaning set forth in the Notes.
------------------
"Make-Whole Premium" means, with respect to a Note at any Make-Whole
-------------------
Redemption Date, an amount equal to the greater of (i) 1.0% of the principal
amount of such Note and (ii) the excess of (x) the present value of the sum of
the principal amount and premium, if any, that would be payable on such Note on
March 1, 2008 and all remaining interest payments to and including March 1, 2008
(but excluding any interest accrued to the Make-Whole Redemption Date),
discounted on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) from March 1, 2008 to the applicable Make-Whole Redemption Date
at a per annum interest rate equal to the Applicable Treasury Rate on such
Make-Whole Redemption Date plus 0.50%, over (y) the outstanding principal amount
of such Note.
-22-
"Make-Whole Redemption" has the meaning set forth in paragraph 5 of the
----------------------
Notes.
"Make-Whole Redemption Date" means, with respect to a Make-Whole
------------------------------
Redemption, the date such Make-Whole Redemption is effected.
"Maturity Date" when used with respect to any Note, means the date on which
-------------
the principal amount of such Note becomes due and payable as therein or herein
provided.
"Minority Equity Interest" means any Equity Interest in any Person engaged
-------------------------
in a line of business which is complementary, reasonably related, ancillary or
useful to any business in which Parent or its Restricted Subsidiaries is then
engaged, where such Equity Interest constitutes less than 50% of all Equity
Interests issued and outstanding of such Person.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
-------
"Net Proceeds" means the aggregate cash proceeds received by Parent or any
------------
of its Restricted Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of (i) the direct costs relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees, and sales commission and any relocation expenses
incurred as a result thereof), (ii) taxes paid or payable as a result thereof,
(iii) amounts required to be applied to the repayment of Indebtedness secured by
a (x) Prior Lien or a Lien permitted by clause (2), (3), (4) or (7) of the
definition of "Permitted Liens" (by operation of clause (8) of the definition of
"Permitted Collateral Liens") in the case of assets which constitute Collateral
or (y) Lien in the case of assets which do not constitute Collateral, in each
case, which Prior Lien or Lien, as the case may be, is permitted under this
Indenture on the asset or assets that are the subject of such Asset Sale and
(iv) any reserve for adjustment in respect of the sale price of such asset or
assets established in accordance with GAAP and for the after-tax cost of any
indemnification payments (fixed or contingent) attributable to sellers'
indemnities to purchasers.
"New Credit Facility" means the Credit Agreement dated as of February 26,
--------------------
2003, as such agreement may be amended or refinanced, including any agreement(s)
extending the maturity of or refinancing (including increasing the amount of
available borrowings thereunder (provided that such increase in borrowings is
permitted by Section 4.09) or adding Parent or Subsidiaries of Parent as
borrowers or guarantors thereunder) all or any portion of the Indebtedness under
such agreement(s) or any successor or replacement agreement and whether by the
same or any other agent, lender or group of lenders or creditor or group of
creditors. Notwithstanding that the New Credit Facility has been indefeasibly
repaid in full without refinancing, the Company may designate, at its option,
one or more New Credit Facilities otherwise meeting the definition hereof as a
New Credit Facility for purposes of this Indenture, and, if requested by the
Company, the Security Documents and the Proceeds Sharing Agreement, by
delivering to the Trustee an Officers' Certificate to such effect.
-23-
"1993 Indenture" means the Indenture dated as of April 1, 1993 between
---------------
Crown and Bank One Trust Company, NA, as successor to Chemical Bank, as trustee,
as amended from time to time.
"1995 Indenture" means the Indenture dated as of January 15, 1995 between
---------------
Crown and Bank One Trust Company, NA, as successor to Chemical Bank, as trustee,
as amended from time to time.
"1996 Indenture" means the Indenture dated as of December 17, 1996 among
---------------
Crown, Crown Cork & Seal Finance PLC, Crown Cork & Seal Finance, S.A. and The
Bank of New York, as trustee, as amended from time to time.
"Non-Guarantor Subsidiary" means any Subsidiary of Parent that is not a
-------------------------
Guarantor.
"Non-Recourse Accounts Receivable Subsidiary Indebtedness" has the meaning
---------------------------------------------------------
set forth in the definition of "Accounts Receivable Subsidiary."
"Non-U.S. Person" means a Person who is not a U.S. Person.
---------------
"Note Guarantee" means the Guarantee by a Guarantor of the Notes.
--------------
"Notes" means the 10 7/8% Third Priority Senior Secured Notes due 2013
-----
issued by the Company, including, without limitation, the Exchange Notes issued
in exchange therefor, treated as a single class of securities, as amended from
time to time in accordance with the terms hereof, that are issued pursuant to
this Indenture.
"Off-Balance Sheet Financing Amount" means, as of any date, with respect to
----------------------------------
a Qualified Receivables Transaction, that portion of the Indebtedness of the
related Accounts Receivable Subsidiary (other than Standard Securitization
Undertakings) that is attributable to the accounts receivable and related assets
of the type described in the definition of "Qualified Receivables Transaction"
transferred to such Accounts Receivable Subsidiary by or on behalf of Parent and
its Restricted Subsidiaries.
"Offering Memorandum" means the offering memorandum dated February 11, 2003
-------------------
relating to the offering of Notes issued on the Issue Date.
"Officers" means, with respect to any Person, the Chairman, President,
--------
Chief Executive Officer, Chief Financial Officer, Treasurer, Controller, any
Senior Vice President, any Vice President of such Person or any other authorized
officer or director of such Person.
-24-
"Officers' Certificate" means, with respect to any Person, a certificate
----------------------
signed by the Chairman, President or Chief Executive Officer of such Person and
the Chief Financial Officer, Controller, Treasurer, any Senior Vice President or
any Vice President of such Person that shall comply with applicable provisions
of this Indenture.
"Opinion of Counsel" means a written opinion from legal counsel who is
-------------------
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to Parent or any of its Subsidiaries.
"Original Amount" has the meaning set forth in the definition of "Permitted
---------------
Refinancing Indebtedness."
"Other Guarantor" has the meaning set forth in Section 10.06.
---------------
"Parent" means Crown Holdings, Inc., a Pennsylvania corporation, until a
------
successor replaces such party pursuant to Article Five of this Indenture and
thereafter the successor.
"Pari Passu First Priority Indebtedness" means the Indebtedness represented
--------------------------------------
by (i) the obligations under the New Credit Facility and any Related Obligations
to the extent incurred in compliance with the terms of the Notes and (ii) the
obligations under any Additional Pari Passu First Priority Indebtedness to the
extent incurred in compliance with the terms of this Indenture.
"Pari Passu First Priority Secured Parties" means each of (i) the Bank
---------------------------------------------
Agents on behalf of themselves and the Lenders and the Related Obligations
Counterparties and (ii) the holders from time to time of any Additional Pari
Passu First Priority Indebtedness and the duly authorized representative(s) of
such holders, if any; provided that each such Person, or the duly authorized
representative thereof, shall have become a party to the applicable Security
Documents and, to the extent applicable, the Proceeds Sharing Agreement.
"Pari Passu Indebtedness" means, with respect to any Person, Indebtedness
-----------------------
of such Person unless, with respect to any item of Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding or
any other agreement governing the terms of such Indebtedness expressly provides
that such Indebtedness shall be subordinated in right of payment to any other
item of Indebtedness of such Person. Notwithstanding the foregoing, "Pari Passu
Indebtedness" shall not include:
(i) Indebtedness of Parent owed to any Restricted Subsidiary of Parent
or Indebtedness of any such Restricted Subsidiary owed to Parent or any
other Restricted Subsidiary of such Restricted Subsidiary;
(ii) Indebtedness incurred in violation of this Indenture; and
-25-
(iii) Indebtedness represented by Disqualified Stock.
"Pari Passu Second Priority Indebtedness" means the Indebtedness
---------------------------------------------
represented by (i) the Second Priority Notes (including any Additional Second
Priority Notes), the Second Priority Exchange Notes and the Second Priority Note
Guarantees and (ii) the obligations under any Additional Pari Passu Second
Priority Indebtedness, in each case, to the extent incurred in compliance with
the terms of this Indenture.
"Pari Passu Second Priority Secured Parties" means each of (i) the Second
--------------------------------------------
Priority Notes Trustee on behalf of itself and the Holders of the Second
Priority Notes and (ii) the holders from time to time of any Additional Pari
Passu Second Priority Indebtedness and the duly authorized representative(s) of
such holders, if any; provided that each such Person, or the duly authorized
representative thereof, shall have become a party to the applicable Security
Documents and, to the extent applicable, the Proceeds Sharing Agreement.
"Pari Passu Third Priority Indebtedness" means the Indebtedness represented
--------------------------------------
by (i) the Notes (including any Additional Notes), the Exchange Notes and the
Note Guarantees and (ii) the obligations under any Additional Pari Passu Third
Priority Indebtedness, in each case, to the extent incurred in compliance with
the terms of this Indenture.
"Pari Passu Third Priority Secured Parties" means each of (i) the Trustee
-------------------------------------------
on behalf of itself and the holders of the Notes and (ii) the holders from time
to time of any Additional Pari Passu Third Priority Indebtedness and the duly
authorized representative(s) of such holders, if any; provided that each such
Person, or the duly authorized representative thereof, shall have become a party
to the applicable Security Documents and, to the extent applicable, the Proceeds
Sharing Agreement.
"Paying Agent" has the meaning set forth in Section 2.04.
------------
"Payment Default" has the meaning set forth in Section 6.01.
---------------
"Permitted Collateral Liens" means:
--------------------------
(1) Liens securing Pari Passu First Priority Indebtedness (including,
without limitation, Indebtedness under the New Credit Facility (including
any Related Obligations)) in an aggregate principal amount not to exceed at
any one time outstanding (y) $1,650,000,000 less (z) the aggregate
Off-Balance Sheet Financing Amount attributable to Qualified Receivables
Transactions; provided that each of the Pari Passu First Priority Secured
Parties with respect thereto, shall have entered into the Security
Documents applicable to such Collateral and, to the extent required under
this Indenture, the Proceeds Sharing Agreement;
-26-
(2) (a) Liens securing the Second Priority Notes Indenture, the Second
Priority Notes outstanding on the Issue Date, the Second Priority Exchange
Notes issued in exchange therefor and the Second Priority Note Guarantees
relating thereto;
(b) Liens securing Additional Pari Passu Second Priority
Indebtedness (including, without limitation, Additional Second
Priority Notes) in an aggregate principal amount not to exceed
$600,000,000 at any one time outstanding; provided that each of the
Pari Passu Second Priority Secured Parties with respect thereto shall
have entered into the Security Documents applicable to such Collateral
and, to the extent required under this Indenture, the Proceeds Sharing
Agreement;
(c) Liens securing this Indenture, the Notes outstanding on the
Issue Date, the Exchange Notes issued in exchange therefor and the
Note Guarantees relating thereto;
(d) Liens securing Additional Pari Passu Third Priority
Indebtedness (including, without limitation, Additional Notes);
provided that each of the Pari Passu Third Priority Secured Parties
with respect thereto shall have entered into the Security Documents
applicable to such Collateral and, to the extent required under this
Indenture, the Proceeds Sharing Agreement;
(3) Liens securing the obligations of the Company and the Guarantors
in respect of Hedging Obligations (including, without limitation, Related
Hedging Obligations) to the extent that such obligations are incurred
pursuant to clause (7) of Section 4.09(b); provided that each of the
Secured Parties related thereto shall have entered into the Security
Documents applicable to such Collateral;
(4) to the extent and in the manner required by the terms of the
Existing Notes as in effect on the Issue Date, Liens on Principal Property
of Crown and its Principal Properties Subsidiaries and on any shares of
capital stock or evidences of indebtedness for borrowed money issued by any
Principal Properties Subsidiary of Crown and owned by Crown or any
Principal Properties Subsidiary of Crown securing the obligations of Crown
or such Principal Properties Subsidiary under the Existing Notes; provided
that, to the extent such Principal Property, shares or indebtedness would
constitute Collateral, the Notes are secured by an equal and ratable Lien
on such Principal Property, shares or indebtedness to the extent and in the
manner contemplated by the Security Documents;
(5) Prior Liens;
-27-
(6) Liens in favor of the Company or any Guarantor; provided that, to
the extent required by the Security Documents, any Liens of the type
described in this clause (6) shall be subject to the Lien granted and
evidenced by the Security Documents;
(7) Liens incurred in the ordinary course of business of the Company
or any Guarantor with respect to obligations that do not exceed $5,000,000
in the aggregate at any one time outstanding (a) that are not yet
delinquent or (b) that are being contested in good faith by appropriate
proceedings promptly instituted and diligently concluded;
(8) Liens described in clauses (2) through (12), (14), (16) and (19)
of the definition of "Permitted Liens"; provided that, in the case of
clauses (5) and (6) thereof, the Contested Collateral Liens Conditions are
satisfied; and
(9) any additional Liens on the Collateral (other than Liens securing
Indebtedness) to the extent and in the manner permitted by the New Credit
Facility.
"Permitted Investments" means:
---------------------
(1) Investments in Parent or any Restricted Subsidiary;
(2) Investments in cash and Cash Equivalents;
(3) Investments by Parent or any Restricted Subsidiary of Parent in,
or the purchase of the securities of, a Person if, as a result of such
Investment, (a) such person becomes a Restricted Subsidiary or (b) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated into, Parent
or a Restricted Subsidiary;
(4) Investments in accounts and notes receivable acquired in the
ordinary course of business;
(5) Investments received or acquired in compromise of, or in respect
of, obligations of, claims against or disputes with, any Person (other than
Parent or any Restricted Subsidiary or Affiliate), including, but not
limited to, pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such Person;
(6) any non-cash consideration received in connection with an Asset
Sale that complies with Section 4.12;
-28-
(7) Investments in connection with Hedging Obligations permitted to be
incurred under Section 4.09;
(8) commission, payroll, travel and similar loans and advances to
employees in the ordinary course of business;
(9) any Investment by Parent or any Restricted Subsidiary of Parent in
an Accounts Receivable Subsidiary or any Investment by an Accounts
Receivable Subsidiary in any other Person in connection with a Qualified
Receivables Transaction, so long as any Investment in an Accounts
Receivable Subsidiary is in the form of a Purchase Money Note or an Equity
Interest;
(10) any Investments (i) the consideration for which consists
exclusively of Qualified Capital Stock of Parent and (ii) in any
Unrestricted Subsidiary, joint venture or any Minority Equity Interest made
by exchange for, or out of the net cash proceeds of the substantially
concurrent sale of, Qualified Capital Stock of Parent; provided that the
amount of any such net cash proceeds that are utilized for any such
Investment shall be excluded for purposes of clause (C) of Section 4.10(a)
in determining the amount available for Restricted Payments;
(11) Investments existing on the Issue Date, and any extension,
modification or renewal of any Investments existing on the Issue Date, but
only to the extent not involving additional advances, contributions or
other Investments of cash or other assets or other increases thereof (other
than as a result of the accrual or accretion of interest or original issue
discount or the issuance of pay-in-kind securities, in each case, pursuant
to the terms of such Investment as in effect on the Issue Date); and
(12) additional Investments in an aggregate amount not to exceed
$100,000,000 at any time outstanding.
"Permitted Liens" means:
---------------
(1) Liens on the Additional Bank Collateral securing Indebtedness of
Parent and its Restricted Subsidiaries under the New Credit Facility to the
extent such Indebtedness is incurred pursuant to clause (1) of Section
4.09(b);
(2) Liens on assets of a Person merged with or into or consolidated
with Parent or any Restricted Subsidiary of Parent after the Issue Date
existing at the time such Person is merged with or into or consolidated
with Parent or any Restricted Subsidiary of Parent; provided that such
Liens were not incurred in connection with, or in contemplation of, such
merger or consolidation and do not extend to any assets of Parent or any
Restricted Subsidiary of Parent other than the assets of such Person
acquired in such merger or consolidation;
-29-
(3) Liens on assets of a Person that becomes a Restricted Subsidiary
of Parent existing at the time such Person becomes a Restricted Subsidiary
of Parent; provided that such Liens were not incurred in connection with,
or in contemplation of, such Person becoming a Restricted Subsidiary of
Parent and do not extend to any assets of Parent or any Restricted
Subsidiary of Parent;
(4) Liens on assets acquired after the Issue Date existing at the time
of acquisition thereof by Parent or any Restricted Subsidiary of Parent;
provided that such Liens were not incurred in connection with, or in
contemplation of, such acquisition and do not extend to any assets of
Parent or any Restricted Subsidiary of Parent other than the specific
assets so acquired;
(5) landlords', carriers', warehousemen's, mechanics', suppliers',
materialmen's or other like Liens, in any case incurred in the ordinary
course of business with respect to amounts (a) not yet delinquent or (b)
being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted;
(6) Liens for taxes, assessments or governmental charges or claims or
other like statutory Liens, that (a) are not yet delinquent or (b) are
being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded; provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall
have been made therefor;
(7) Liens to secure Indebtedness permitted by (a) clause (3) of
Section 4.09(b) covering only the assets acquired with such Indebtedness
and (b) clause (7) of Section 4.09(b);
(8) Liens securing Indebtedness incurred to refinance Indebtedness
that has been secured by a Lien permitted by this Indenture; provided that
(a) any such Lien shall not extend to or cover any assets not securing the
Indebtedness so refinanced and (b) the refinancing Indebtedness secured by
such Lien shall have been permitted to be incurred pursuant to clause (5)
of Section 4.09(b);
(9) (a) Liens in the form of zoning restrictions, easements, licenses,
reservations, covenants, conditions or other restrictions on the use of
real property or other minor irregularities in title (including leasehold
title) that do not (i) secure Indebtedness or (ii) individually or in the
aggregate materially impair the value or marketability of the real property
affected thereby or the occupation, use and enjoyment in the ordinary
course of business of Parent and the Restricted Subsidiaries at such real
property and (b) with respect to leasehold interests in real property,
mortgages, obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or under a landlord
or owner of such leased property encumbering the landlord's or owner's
interest in such leased property;
-30-
(10) Liens in the form of pledges or deposits securing bids, tenders,
contracts (other than contracts for the payment of Indebtedness) or leases,
warranties, statutory or regulatory obligations or self-insurance
arrangements arising in the ordinary course of business, banker's
acceptances, surety and appeal bonds, performance bonds and other
obligations of a similar nature to which Parent or any Restricted
Subsidiary is a party, in each case, made in the ordinary course of
business;
(11) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute a Default under this Indenture;
(12) Liens in the form of licenses, leases or subleases granted or
created by Parent or any Restricted Subsidiary in the ordinary course of
business, which licenses, leases or subleases do not interfere,
individually or in the aggregate, in any material respect with the business
of Parent or such Restricted Subsidiary; provided that any such Lien shall
not extend to or cover any assets of Parent or any Restricted Subsidiary of
Parent that is not the subject of any such license, lease or sublease;
(13) Liens in favor of Parent or any Restricted Subsidiary of Parent;
(14) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by
Parent or any Restricted Subsidiary of Parent in the ordinary course of
business in accordance with the past practices of Parent or any Restricted
Subsidiary of Parent;
(15) bankers' Liens, rights of setoff and other similar Liens existing
solely with respect to cash and Cash Equivalents on deposit in one or more
accounts maintained by Parent or any Restricted Subsidiary of Parent, in
each case, granted in the ordinary course of business in favor of the bank
or banks with which such accounts are maintained, securing amounts owing to
such bank with respect to cash management and operating account
arrangements, including those involving pooled accounts and netting
arrangements; provided that in no case shall any such Liens secure (either
directly or indirectly) the repayment of any Indebtedness;
(16) Liens on fixtures or personal property granted to landlords
pursuant to leases to the extent that such Liens are not yet due and
payable;
(17) Liens on accounts receivable and related assets incurred in
connection with a Qualified Receivables Transaction;
(18) Liens existing on the Issue Date to the extent and in the manner
existing on the Issue Date;
-31-
(19) deposits, pledges or other Liens to secure obligations under
purchase or sale agreements or letters of intent entered into in respect of
a proposed acquisition;
(20) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof; and
(21) in addition to the Liens described in clauses (1) through (20)
above, Liens in respect of Indebtedness or other obligations of Parent or
any Restricted Subsidiary not to exceed 10.0% of Consolidated Net Tangible
Assets at any one time outstanding.
"Permitted Refinancing Indebtedness" means any Indebtedness of Parent or
------------------------------------
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to refinance other Indebtedness of Parent or any of its
Restricted Subsidiaries; provided that:
(1) the principal amount (or accreted value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the principal amount (or
accreted value, if applicable) of the Indebtedness so refinanced (plus the
amount of accrued and unpaid interest, if any, and premiums owed, if any
(not in excess of preexisting prepayment provisions on such Indebtedness)
and the amount of reasonable and customary fees and expenses incurred in
connection therewith) (the "Original Amount"); provided, however, if the
amount of such Permitted Refinancing Indebtedness exceeds the Original
Amount, the amount of such Permitted Refinancing Indebtedness equal to the
Original Amount shall nonetheless constitute "Permitted Refinancing
Indebtedness" if it otherwise complies with the requirements of this
definition;
(2) such Permitted Refinancing Indebtedness has a final maturity date
at least as late as the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to
Maturity of, the Indebtedness being refinanced;
(3) if the Indebtedness being refinanced is subordinated in right of
payment to any Notes, such Permitted Refinancing Indebtedness has a final
maturity date later than the final maturity date of, and is subordinated in
right of payment to, the Notes on terms at least as favorable to the
Holders of Notes as those contained in the documentation governing the
Indebtedness being refinanced; and
(4) such Indebtedness is incurred by Parent or by the Restricted
Subsidiary who is the obligor on the Indebtedness being refinanced;
provided, however, that Parent or any Restricted Subsidiary of Parent
(other than the Company or any Restricted Subsidiary of the Company) may
incur Indebtedness which refinances Indebtedness of any Restricted
Subsidiary of Parent.
-32-
"Person" means an individual, partnership, corporation, limited liability
------
company, unincorporated organization, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Pledged Holdco" means Crown for so long as Crown shall own, directly or
---------------
indirectly, all of the Equity Interests in Parent's indirect Restricted
Subsidiaries and thereafter shall mean the one or more direct Wholly Owned
Restricted Subsidiaries of Parent that collectively own directly or indirectly
all of the Equity Interests in Parent's indirect Restricted Subsidiaries, in
each case in accordance with and to the extent required by the terms of this
Indenture and the Security Documents.
"Physical Notes" means certificated Notes in registered form.
--------------
"Preferred Stock" of any Person means any Capital Stock of such Person that
---------------
has preferential rights over any other Capital Stock of such Person with respect
to profits, dividends, distributions or redemptions or upon liquidation.
"principal" of a Note means the principal of the Note plus the premium, if
---------
any, payable on the Note which is due or overdue or is to become due at the
relevant time.
"Principal Property" has the meaning assigned to such term in each
-------------------
instrument and agreement under which the Existing Notes have been issued, in
accordance with the terms of such instruments and agreements as in effect on the
Issue Date.
"Principal Property Subsidiary" has the meaning assigned to the term
-------------------------------
"Restricted Subsidiary" in each instrument and agreement under which the
Existing Notes have been issued, in accordance with the terms of such
instruments and agreements as in effect on the Issue Date.
"Prior Liens" means Liens existing on the Issue Date to the extent
------------
permitted by the applicable Security Documents.
"Private Placement Legend" means the legend substantially in the form set
-------------------------
forth in Exhibit B.
"Proceeds Sharing Agreement" means the Global Participation and Proceeds
----------------------------
Sharing Agreement in the form of Exhibit I hereto dated as of February 26, 2003
among the Secured Parties, the Collateral Agents, Citicorp North America, Inc.,
as Sharing Agent, and the other persons who may become parties thereto from time
to time pursuant to and in accordance with the terms thereof, as amended from
time to time.
"Purchase Money Note" means a promissory note of an Accounts Receivable
--------------------
Subsidiary to Parent or any Restricted Subsidiary of Parent, which note must be
repaid from cash available to the Accounts Receivable Subsidiary, other than
amounts required to be established as reserves pursuant to agreements, amounts
paid to investors in respect of interest, principal and other amounts owing to
such investors and amounts paid in connection with the purchase of newly
generated receivables.
-33-
"Purchase Money Obligations" of any Person means any obligations of such
----------------------------
Person to any seller or any other Person incurred or assumed to finance the
purchase, or the cost of construction or improvement, of real or personal
property to be used in the business of such Person or any of its Subsidiaries in
an amount that is not more than 100% of the cost, or Fair Market Value, as
appropriate, of such property, and incurred within 90 days after the date of
such acquisition (excluding accounts payable to trade creditors incurred in the
ordinary course of business).
"Qualified Capital Stock" means any Capital Stock that is not Disqualified
------------------------
Stock.
"Qualified Institutional Buyer" shall have the meaning specified in Rule
-------------------------------
144A promulgated under the Securities Act.
"Qualified Receivables Transaction" means any transaction or series of
-----------------------------------
transactions entered into by Parent or any of its Restricted Subsidiaries
pursuant to which Parent or such Restricted Subsidiary Transfers to (a) an
Accounts Receivable Subsidiary (in the case of a Transfer by Parent or any of
its Restricted Subsidiaries) and (b) any other Person (in the case of a Transfer
by an Accounts Receivable Subsidiary), or grants a security interest in, any
accounts receivable (whether now existing or arising in the future) of Parent or
any of its Restricted Subsidiaries, and any assets related thereto, including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with an accounts receivable financing
transaction; provided such transaction is on market terms at the time Parent or
such Restricted Subsidiary enters into such transaction.
"Rating Agencies" mean Xxxxx'x and S&P ; provided that if S&P, Xxxxx'x or
----------------
any Successor Rating Agency (as defined below) shall cease to be in the business
of providing rating services for debt securities generally, the Company shall be
entitled to replace any such Rating Agency or Successor Rating Agency, as the
case may be, which has ceased to be in the business of providing rating services
for debt securities generally with a security rating agency which is in the
business of providing rating services for debt securities generally and which is
nationally recognized in the United States (such rating agency, a "Successor
---------
Rating Agency").
-------------
-34-
"Redemption Date" when used with respect to any Note to be redeemed
----------------
pursuant to paragraph 5 or 6 of the Notes means the date fixed for such
redemption pursuant to the terms of this Indenture and the Notes.
"refinance" means to refinance, repay, replace, renew, extend, refund or
---------
restructure.
"Registrar" has the meaning set forth in Section 2.04.
---------
"Registration Default" has the meaning set forth in paragraph 9 of the
---------------------
Restricted Notes.
"Registration Rights Agreement" means the registration rights agreement
-------------------------------
dated February 26, 2003 among the Company, the Guarantors and the Initial
Purchasers relating to the Notes.
"Regulation S" means Regulation S promulgated under the Securities Act.
------------
"Regulation S Global Notes" has the meaning set forth in Section 2.16.
-------------------------
"Regulation S Notes" has the meaning set forth in Section 2.02.
------------------
"Related Cash Management Obligations" means obligations of Parent or any
------------------------------------
Restricted Subsidiary arising from treasury, depository and cash management
services provided by one or more of the Bank Agents or the Lenders or their
Affiliates or designees or other parties permitted under the New Credit
Facility.
"Related Hedging Obligations" means Hedging Obligations of Parent or any
----------------------------
Restricted Subsidiary entered into with one or more of the Bank Agents or the
Lenders or their Affiliates or designees or other parties permitted under the
New Credit Facility.
"Related Obligations" means, collectively, the Related Cash Management
--------------------
Obligations and the Related Hedging Obligations.
"Related Obligations Counterparties" means the counterparties to the
------------------------------------
Related Obligations.
"Replacement Assets" means any (a) business, (b) controlling or majority
-------------------
Equity Interest in any Person engaged in a line of business, (c) in the case of
a Transfer of a Minority Equity Interest, another Minority Equity Interest in a
Person engaged primarily in a line of business or (d) property or assets used or
useful in a line of business, in the case of each of clauses (a) through (d), in
which Parent or any of its Restricted Subsidiaries is engaged or which is or
are, as the case may be, complementary, reasonably related, ancillary or useful
to any such line of business in which Parent or any of its Restricted
Subsidiaries is then engaged.
-35-
"Responsible Officer" shall mean, when used with respect to the Trustee,
--------------------
any officer in the Corporate Trust Department of the Trustee including any vice
president, assistant vice president or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, and to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Global Note" means a Global Note that is a Restricted Note.
------------------------
"Restricted Investment" means an Investment other than a Permitted
-----------------------
Investment.
"Restricted Note" has the same meaning as "restricted security" set forth
----------------
in Rule 144(a)(3) promulgated under the Securities Act; provided that the
Trustee shall be entitled to request and conclusively rely upon an Opinion of
Counsel with respect to whether any Note is a Restricted Note.
"Restricted Payment" has the meaning set forth in Section
------------------
4.10.
"Restricted Period" has the meaning set forth in Section 2.16.
-----------------
"Restricted Physical Note" means a Physical Note that is a Restricted Note.
------------------------
"Restricted Subsidiary" means each Subsidiary of Parent that is not an
----------------------
Unrestricted Subsidiary.
"Rule 144" means Rule 144 promulgated under the Securities Act.
--------
"Rule 144A" means Rule 144A promulgated under the Securities Act.
---------
"Rule 144A Global Notes" has the meaning set forth in Section 2.16.
----------------------
"Rule 144A Notes" has the meaning set forth in Section 2.02.
---------------
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx Companies,
---
Inc., and its successors.
"Sale and Leaseback Transaction" means any arrangement with any Person
--------------------------------
(other than Parent or a Subsidiary of Parent), or to which any such Person is a
party, providing for the leasing, pursuant to a capital lease that would at such
time be required to be capitalized on a balance sheet in accordance with GAAP,
to Parent or a Restricted Subsidiary of any property or asset which has been or
is to be sold or transferred by Parent or such Restricted Subsidiary to such
Person or to any other Person (other than Parent or a Subsidiary of Parent) to
which funds have been or are to be advanced by such Person.
-36-
"Second Priority Exchange Notes" means debt securities of the Company with
-------------------------------
terms substantially identical to the Second Priority Notes issued in exchange
for an equal principal amount of Second Priority Notes pursuant to an exchange
offer registered under the Securities Act in accordance with the terms of the
Second Priority Notes Registration Rights Agreement.
"Second Priority Note Guarantees" means the Guarantees of the Second
----------------------------------
Priority Notes under the Second Priority Notes Indenture.
"Second Priority Notes" means, collectively, the Dollar Second Priority
-----------------------
Notes and the Euro Second Priority Notes.
"Second Priority Notes Indenture" means the Indenture dated as of February
--------------------------------
26, 2003 among the Company, as issuer, the Guarantors and the Second Priority
Notes Trustee governing the terms of the Second Priority Notes, as amended from
time to time.
"Second Priority Notes Registration Rights Agreement" means the
------------------------------------------------------------
registration rights agreement dated February 26, 2003 among the Company, the
Guarantors and the Initial Purchasers relating to the Second Priority Notes.
"Second Priority Notes Trustee" means the party named as trustee in the
--------------------------------
Second Priority Notes Indenture until a successor replaces it pursuant to the
Second Priority Notes Indenture and thereafter means the successor.
"Secured Parties" means, collectively, the Pari Passu First Priority
----------------
Secured Parties, the Pari Passu Second Priority Secured Parties and the Pari
Passu Third Priority Secured Parties.
"Securities Act" means the Securities Act of 1933, as amended, and the
---------------
rules and regulations of the Commission promulgated thereunder.
"Security Documents" means, collectively:
------------------
(1) the Intercreditor Agreements;
(2) the U.S. Security Agreement;
(3) the Shared Pledge Agreement;
(4) the CEH Excess Proceeds Account Agreement;
(5) the CEH Pledge Agreement;
(6) the Finance PLC Proceeds Account Agreement; and
-37-
(7) all other security agreements, pledge agreements, mortgages, deeds
of trust, pledges, collateral assignments and other agreements or
instruments evidencing or creating any security in favor of the Trustee and
any Holders of the Notes in any or all of the Collateral,
in each case, as amended from time to time in accordance with its terms.
"Shared Pledge Agreement" means the Shared Pledge Agreement in the form of
------------------------
Exhibit J hereto dated as of February 26, 2003 among Parent, Crown Cork & Seal
Americas, Inc., Crown International Holdings Inc., each other U.S. Subsidiary of
Parent listed on Schedule I thereto and Citicorp North America, Inc., as
Collateral Agent, as amended from time to time.
"Sharing Agent" means the party named as global participation and proceeds
-------------
sharing agent in the Proceeds Sharing Agreement, until a successor replaces it
pursuant to the Proceeds Sharing Agreement and thereafter means the successor.
"Significant Subsidiary" means any Restricted Subsidiary that would be a
-----------------------
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the Issue Date.
"Standard Securitization Undertakings" means representations, warranties,
-------------------------------------
covenants and indemnities entered into by Parent or any Restricted Subsidiary of
Parent which are reasonably customary in an accounts receivable securitization
transaction.
"Subsidiary" means, with respect to any Person:
----------
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of Voting Stock is at the time
owned or controlled, directly or indirectly, by such Person or one or more
of the other Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or
(b) the only general partners of which are such Person or one or more
Subsidiaries of such Person (or any combination thereof).
"Successor Rating Agency" has the meaning set forth in the definition of
-------------------------
"Rating Agencies."
"Suspended Covenants" has the meaning set forth in Section 4.19.
-------------------
"Suspension Period" has the meaning set forth in Section 4.19.
-----------------
-38-
"Swiss Guarantor" has the meaning set forth in Section 10.06.
---------------
"Taxes" has the meaning set forth in Section 4.16.
-----
"Taxing Jurisdiction" has the meaning set forth in Section 4.16.
-------------------
"TIA" or "Trust Indenture Act" means the Trust Indenture Act of 1939 (15
--- ---------------------
U.S. Code xx.xx. 77aaa-77bbbb) as in effect on the date of this Indenture
(except as provided in Section 8.03).
"Transfer" means to sell, assign, transfer, lease (other than pursuant to
--------
an operating lease entered into in the ordinary course of business), convey or
otherwise dispose of, including by Sale and Leaseback Transaction,
consolidation, merger, liquidation, dissolution or otherwise, in one transaction
or a series of transactions.
"Triggering Event" has the meaning set forth in the Proceeds Sharing
-----------------
Agreement.
"Trustee" means the party named as such in this Indenture until a successor
-------
replaces it pursuant to this Indenture and thereafter means the successor.
"Unrestricted Notes" means Notes that are not Restricted Notes.
--------------------
"Unrestricted Global Note" means a Global Note that is not a Restricted
--------------------------
Note.
"Unrestricted Physical Note" means a Physical Note that is not a Restricted
--------------------------
Note.
"Unrestricted Subsidiary" means any Subsidiary of Parent (other than the
------------------------
Company) that is designated by the Board of Directors of Parent as an
Unrestricted Subsidiary pursuant to a resolution of such Board of Directors, but
only if:
(1) (a) such Subsidiary has no Indebtedness other than Indebtedness as
to which neither Parent nor any of its Restricted Subsidiaries (i) provides
any credit support of any kind (including any undertaking, agreement or
instrument that would constitute Indebtedness), (ii) is directly or
indirectly liable as a guarantor or otherwise or (iii) constitutes the
lender, other than in the case of clauses (i) and (ii) any non-recourse
Guarantee given solely to support the pledge by Parent or any Restricted
Subsidiary of the Equity Interests of such Unrestricted Subsidiary; and
(b) neither Parent nor any Restricted Subsidiary is liable for
any Indebtedness that would permit (upon notice, lapse of time or
both) any holder thereof to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity upon the occurrence of a default with
respect to any Indebtedness of such Unrestricted Subsidiary;
-39-
(2) such Subsidiary is not party to any agreement, contract,
arrangement or understanding with Parent or any Restricted Subsidiary of
Parent unless the terms of any such agreement, contract, arrangement or
understanding are not materially less favorable to Parent or such
Restricted Subsidiary than those that would be obtained at the time from
Persons who are not Affiliates of Parent;
(3) such Subsidiary is a Person with respect to which neither Parent
nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to
maintain or preserve such Person's financial condition or to cause such
Person to achieve any specified levels of operating results; and
(4) such Subsidiary does not Guarantee or otherwise directly or
indirectly provide credit support for any Indebtedness of Parent or any of
its Restricted Subsidiaries.
Any such designation by the Board of Directors shall be evidenced to the Trustee
by filing with the Trustee a certified copy of the resolution of the Board of
Directors giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions and was
permitted by Section 4.10. If, at any time, any Unrestricted Subsidiary would
fail to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to be incurred by a
Restricted Subsidiary of Parent as of such date (and, if such Indebtedness is
not permitted to be incurred as of such date under Section 4.09, Parent shall be
in default of such covenant from the date of such incurrence).
The Board of Directors of Parent may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided that such designation shall
be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of
Parent of any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation shall only be permitted if:
(1) such incurrence of Indebtedness is permitted under Section 4.09;
and
(2) no Default or Event of Default would be in existence following
such designation.
-40-
"U.S. Collateral" has the meaning set forth in the U.S. Intercreditor
----------------
Agreement.
"U.S. Dollar Equivalent" means, with respect to any monetary amount in a
------------------------
currency other than U.S. Dollars, at any time for the determination thereof, the
amount of U.S. Dollars obtained by converting such foreign currency involved in
such computation into U.S. Dollars at the spot rate for the purchase of U.S.
Dollars with the applicable foreign currency as quoted by Reuters at
approximately 10:00 A.M. (New York time) on the date not more than two Business
Days prior to such determination.
"U.S. Government Obligations" means marketable direct obligations issued
-----------------------------
by, or unconditionally guaranteed by, the United States Government or issued by
any agency or instrumentality thereof and backed by the full faith and credit of
the United States of America that, in each case, mature within one year from the
date of acquisition thereof and are not callable or redeemable at the option of
the issuer thereof.
"U.S. Guarantor" has the meaning set forth in Section 10.06.
--------------
"U.S. Intercreditor Agreement" means the U.S. Intercreditor and Collateral
-----------------------------
Agency Agreement in the form of Exhibit K hereto dated as of February 26, 2003
among the Secured Parties, Citicorp North America, Inc., as U.S. collateral
agent, Parent and its Subsidiaries named therein, and the other persons who may
become parties thereto from time to time pursuant to and in accordance with the
terms thereof, as amended from time to time.
"U.S. Person" means a "U.S. person" as defined in Rule 902(k) under the
------------
Securities Act.
"U.S. Security Agreement" means the U.S. Security Agreement in the form of
-----------------------
Exhibit L hereto dated as of February 26, 2003 among Crown Cork & Seal Americas,
Inc., Crown, Parent, Crown International Holdings, Inc., each other Subsidiary
of Parent listed on Schedule I thereto and Citicorp North America, Inc., as
collateral agent, as amended from time to time.
"Voting Stock" means any class or classes of Capital Stock pursuant to
-------------
which the holders thereof have power to vote in the election of directors,
managers or trustees of any Person (irrespective of whether or not, at the time,
stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
---------------------------------
at any date, the number of years obtained by dividing:
(1) the then outstanding principal amount of such Indebtedness; into
-41-
(2) the total of the product obtained by multiplying (a) the amount of
each then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity, in
respect thereof, by (b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment.
"Wholly Owned Restricted Subsidiary" of any Person means a Restricted
-------------------------------------
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Restricted
Subsidiaries of such Person or by such Person and one or more Wholly Owned
Restricted Subsidiaries of such Person.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the portion of
such provision required to be incorporated herein in order for this Indenture to
be qualified under the TIA is incorporated by reference in and made a part of
this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"obligor on the indenture securities" means the Company, the
Guarantors or any other obligor on the Notes.
All other terms used in this Indenture that are defined by the TIA, defined
in the TIA by reference to another statute or defined by Commission rule have
the meanings therein assigned to them.
SECTION 1.03. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural
include the singular;
-42-
(4) words used herein implying any gender shall apply to both genders;
(5) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subsection;
(6) unless otherwise specified herein, all accounting terms used
herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder
shall be prepared in accordance with GAAP; and
(7) "$" and "U.S. Dollars" each refer to United States dollars, or
such other money of the United States of America that at the time of
payment is legal tender for payment of public and private debts.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Amount of Notes.
---------------
The Trustee shall initially authenticate $725,000,000 aggregate principal
amount of Notes for original issue on the Issue Date upon a written order of the
Company in the form of an Officers' Certificate of the Company (other than as
provided in Section 2.08). The Trustee shall authenticate additional Notes
("Additional Notes") thereafter in unlimited amount (so long as permitted by the
----------------
terms of this Indenture, including, without limitation, Section 4.09) for
original issue upon a written order of the Company in the form of an Officers'
Certificate in aggregate principal amount as specified in such order (other than
as provided in Section 2.08). Each such written order shall specify the
principal amount of Notes to be authenticated and the date on which the Notes
are to be authenticated.
SECTION 2.02. Form and Dating; Legends.
------------------------
The Notes and the Trustee's certificate of authentication with respect
thereto shall be substantially in the form set forth in Exhibit A-1 (in the case
-----------
of the Restricted Notes) and Exhibit A-2 (in the case of Unrestricted Notes),
-----------
each of which is incorporated in and forms a part of this Indenture. Each Note
shall be dated the date of its authentication.
The Notes may have notations, legends or endorsements required by law, rule
or usage to which the Company is subject. Without limiting the generality of the
foregoing, Notes offered and sold to Qualified Institutional Buyers in reliance
on Rule 144A ("Rule 144A Notes"), Notes offered and sold in offshore
-----------------
transactions in reliance on Regulation S ("Regulation S Notes") and all other
-------------------
Restricted Notes shall bear the Private Placement Legend. All Global Notes shall
bear the Global Note Legend.
-43-
The terms and provisions contained in the Notes shall constitute, and are
expressly made, a part of this Indenture and, to the extent applicable, the
Company, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and agree to be bound
thereby.
The Notes may be presented for registration of transfer and exchange at the
offices of the Registrar.
SECTION 2.03. Execution and Authentication.
----------------------------
The Notes shall be executed on behalf of the Company by two Officers of the
Company . The signature of any of these Officers on the Notes may be manual or
facsimile.
If an Officer whose signature is on a Note was an Officer at the time of
such execution but no longer holds that office at the time the Trustee
authenticates the Note, the Note shall be valid nevertheless.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Note shall have been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company shall deliver such Note to the Trustee for
cancellation as provided in Section 2.12, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
The Trustee may appoint one or more authenticating agents reasonably
acceptable to the Company to authenticate the Notes. Unless otherwise provided
in the appointment, an authenticating agent may authenticate the Notes whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company and Affiliates of the Company.
Each Paying Agent is designated as an authenticating agent for purposes of this
Indenture.
Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.04. Registrar and Paying Agent.
--------------------------
The Company shall maintain (a) an office or agency where Notes may be
presented for registration of transfer or for exchange (the "Registrar"),
---------
-44-
(b) an office or agency in the Borough of Manhattan, The City of New York, the
State of New York where Notes may be presented for payment (the "Paying Agent")
and (c) an office or agency where notices and demands to or upon the Company, if
any, in respect of the Notes and this Indenture may be served. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Registrar shall provide a copy of such register from time to time upon request
of the Company. The Company may have one or more co-registrars and one or more
additional Paying Agents. The term "Registrar" includes any co-registrars. The
term "Paying Agents" means the Paying Agent and any additional Paying Agents.
The Company or any Affiliate thereof may act as Registrar or a Paying Agent.
The Company shall enter into an appropriate agency agreement, which shall
incorporate the provisions of the TIA, with any Agent that is not a party to
this Indenture. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall notify the Trustee of the name and
address of any such Agent. If the Company fails to maintain a Registrar or any
required co-registrar or Paying Agent, or fails to give the foregoing notice,
the Trustee shall act as such and shall be entitled to appropriate compensation
in accordance with Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying Agent and
Agent for service of notices and demands in connection with the Notes and this
Indenture.
SECTION 2.05. Paying Agent To Hold Money in Trust.
-----------------------------------
Each Paying Agent shall hold in trust for the benefit of the Noteholders or
the Trustee all money held by the Paying Agent for the payment of principal of
or premium or interest on the Notes (whether such money has been paid to it by
the Company, one or more of the Guarantors or any other obligor on the Notes),
and the Company and each Paying Agent shall notify the Trustee of any default by
the Company (or any other obligor on the Notes) in making any such payment.
Money held in trust by a Paying Agent need not be segregated except as required
by law and in no event shall a Paying Agent be liable for any interest on any
money received by it hereunder. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and account for any funds
disbursed and the Trustee may at any time during the continuance of any Event of
Default specified in Section 6.01(1) or (2), upon written request to a Paying
Agent, require such Paying Agent to pay forthwith all money so held by it to the
Trustee and to account for any funds disbursed. Upon making such payment, such
Paying Agent shall have no further liability for the money delivered to the
Trustee.
SECTION 2.06. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Noteholders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least five Business Days before each Interest Payment Date,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of the Noteholders.
-45-
SECTION 2.07. Transfer and Exchange.
---------------------
Subject to Sections 2.16 and 2.17, when Notes are presented to the
Registrar with a request from the Holder of such Notes to register a transfer or
to exchange them for an equal principal amount of Notes of other authorized
denominations, the Registrar shall register the transfer as requested. Every
Note presented or surrendered for registration of transfer or exchange shall be
duly endorsed or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorneys duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and execute and the Trustee
shall authenticate new Notes (and the Guarantors shall execute the Guarantees
thereon) evidencing such transfer or exchange at the Registrar's request. No
service charge shall be made to the Noteholder for any registration of transfer
or exchange. The Company may require from the Noteholder payment of a sum
sufficient to cover any transfer taxes or other governmental charge that may be
imposed in relation to a transfer or exchange, but this provision shall not
apply to any exchange pursuant to Section 2.11, 3.06, 4.08, 4.12 or 8.05 (in
which events the Company shall be responsible for the payment of such taxes).
The Registrar shall not be required to exchange or register a transfer of any
Note for a period of 15 days immediately preceding the mailing of notice of
redemption of Notes to be redeemed or of any Note selected, called or being
called for redemption except the unredeemed portion of any Note being redeemed
in part.
Any Holder of a Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry. By its
acceptance of any Note bearing the Private Placement Legend, each Holder of such
Note acknowledges the restrictions on transfer of such Note set forth in this
Indenture and in the Private Placement Legend and agrees that it will transfer
such Note only as provided in this Indenture.
SECTION 2.08. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Registrar or the Trustee, or if
the Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Note (and the Guarantors shall execute the Guarantees thereon) if the Holder of
such Note furnishes to the Company and the Trustee evidence reasonably
acceptable to them of the ownership and the destruction, loss or theft of such
Note and if the requirements of Section 8-405 of the New York Uniform Commercial
Code as in effect on the date of this Indenture are met. If required by the
Trustee or the Company, an indemnity bond shall be posted, sufficient in the
judgment of all to protect the Company, the Guarantors, the Trustee or any
Paying Agent from any loss that any of them may suffer if such Note is replaced.
The Company may charge such Holder for the Company's reasonable out-of-pocket
expenses in replacing such Note and the Trustee may charge the Company for the
Trustee's expenses (including, without limitation, attorneys' fees and
disbursements) in replacing such Note. Every replacement Note shall constitute a
contractual obligation of the Company.
-46-
SECTION 2.09. Outstanding Notes.
-----------------
The Notes outstanding at any time are all Notes that have been
authenticated by the Trustee except for (a) those canceled by the Trustee, (b)
those delivered to the Trustee for cancellation, (c) to the extent set forth in
Sections 9.01 and 9.02, on or after the date on which the conditions set forth
in Section 9.01 or 9.02 have been satisfied, those Notes theretofore
authenticated by the Trustee hereunder and (d) those described in this Section
2.09 as not outstanding. Subject to Section 2.10, a Note does not cease to be
outstanding because the Company or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be outstanding
unless the Trustee receives proof satisfactory to the Trustee that the replaced
Note is held by a bona fide purchaser in whose hands such Note is a legal, valid
and binding obligation of the Company.
If a Paying Agent holds, in its capacity as such, on any Maturity Date,
U.S. Dollars sufficient to pay all accrued interest and principal with respect
to the Notes payable on that date and is not prohibited from paying such money
to the Holders thereof pursuant to the terms of this Indenture, then on and
after that date such Notes shall cease to be outstanding and interest on them
shall cease to accrue.
SECTION 2.10. Treasury Notes.
--------------
In determining whether the Holders of the required principal amount of
Notes have concurred in any declaration of acceleration or notice of default or
direction, waiver or consent or any amendment, modification or other change to
this Indenture, Notes owned by the Company or any other Affiliate of the Company
shall be disregarded as though they were not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent or any amendment, modification or other change
to this Indenture, only Notes as to which a Responsible Officer of the Trustee
has actually received an Officers' Certificate stating that such Notes are so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee established to the satisfaction of
the Trustee the pledgee's right so to act with respect to the Notes and that the
pledgee is not the Company, a Guarantor, any other obligor on the Notes or any
of their respective Affiliates.
-47-
SECTION 2.11. Temporary Notes.
---------------
Until definitive Notes are prepared and ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
SECTION 2.12. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for cancellation.
The Registrar and each Paying Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel all Notes surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall dispose of such
canceled Notes in its customary manner. The Company may not reissue or resell or
issue new Notes to replace Notes that the Company has redeemed or paid, or that
have been delivered to the Trustee for cancellation.
SECTION 2.13. Defaulted Interest.
------------------
If the Company defaults on a payment of interest on the Notes, the Company
shall pay the defaulted interest then borne by the Notes plus (to the extent
permitted by law) any interest payable on the defaulted interest, in accordance
with the terms hereof, to the Persons who are Holders thereof on a subsequent
special record date, which date shall be at least five Business Days prior to
the payment date. The Company shall fix such special record date and payment
date in a manner satisfactory to the Trustee. At least 10 days before such
special record date, the Company shall mail to each affected Noteholder a notice
that states the special record date, the payment date and the amount of
defaulted interest, and interest payable on defaulted interest, if any, to be
paid. The Company may make payment of any defaulted interest in any other lawful
manner not inconsistent with the requirements (if applicable) of any securities
exchange on which the Notes may be listed and, upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this sentence, such manner of
payment shall be deemed practicable by the Trustee.
Notwithstanding the foregoing, any interest which is paid prior to the
expiration of the 30-day period set forth in Section 6.01(1) shall be paid to
Holders as of the record date for the Interest Payment Date for which interest
has not been paid.
-48-
SECTION 2.14. CUSIP,ISIN and Common Code Numbers.
----------------------------------
The Company in issuing the Notes may use "CUSIP", "ISIN" and "Common Code"
numbers, and if so used, such CUSIP, ISIN and Common Code numbers shall be
included in notices of redemption or exchange as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP, ISIN or Common Code numbers printed in the
notice or on the Notes, and that reliance may be placed only on the other
identification numbers printed on the Notes. The Company shall promptly notify
the Trustee, in writing, of any such CUSIP, ISIN or Common Code number used by
the Company in connection with the issuance of the Notes and of any change in
any such CUSIP, ISIN or Common Code number.
SECTION 2.15. Deposit of Moneys.
-----------------
Prior to 10:00 A.M., New York City time, on each Interest Payment Date and
Maturity Date, the Company shall have deposited with the Paying Agent in
immediately available funds U.S. Dollars sufficient to make cash payments, if
any, due on such Interest Payment Date or Maturity Date, as the case may be, in
a timely manner which permits such Paying Agents to remit payment to the Holders
on such Interest Payment Date or Maturity Date, as the case may be. The
principal and interest on Global Notes shall be payable to the Depository or its
nominee, as the case may be, as the sole registered owner and the sole Holder of
the Global Notes represented thereby. The principal and interest on Physical
Notes shall be payable, either in person or by mail, at the office of the Paying
Agent.
SECTION 2.16. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) Rule 144A Notes initially shall be represented by one or more Notes in
registered, global form without interest coupons (collectively, the "Rule 144A
---------
Global Note"). Regulation S Notes initially shall be represented by one or more
-----------
Notes in registered, global form without interest coupons (collectively, the
"Regulation S Global Note"). The term "Global Notes" means the Rule 144A Global
------------------------ ------------
Note and the Regulation S Global Note. The Global Notes shall bear the Global
Note Legend. The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, in each case for credit to an
account of an Agent Member, (ii) be delivered to the Trustee as custodian for
such Depository and (iii) bear the Private Placement Legend.
Members of, or direct or indirect participants in, the Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository or under the Global Notes. The
Depository may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner of the Global Notes for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished by
the Depository or impair, as between the Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
-49-
(b) Transfers of Global Notes shall be limited to transfer in whole, but
not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes only in accordance with the applicable rules and
procedures of the Depository and the provisions of Section 2.17. In addition, a
Global Note shall be exchangeable for Physical Notes only if the Depository (i)
notifies the Company that it is unwilling or unable to continue as depository
for such Global Note and the Company thereupon fails to appoint a successor
depository or (ii) has ceased to be a clearing agency registered under the
Exchange Act or there shall have occurred and be continuing an Event of Default
with respect to such Global Note. In all cases, Physical Notes delivered in
exchange for any Global Note or beneficial interests therein shall be registered
in the names, and issued in any approved denominations, requested by or on
behalf of the Depository in accordance with its customary procedures.
(c) In connection with the transfer of a Global Note as an entirety to
beneficial owners pursuant to subsection (b) of this Section 2.16, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in such Global Note, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(d) Any Restricted Physical Note delivered in exchange for an interest in a
Global Note pursuant to Section 2.17 shall, except as otherwise provided in
Section 2.17, bear the Private Placement Legend.
(e) Notwithstanding the foregoing, through and including the 40th day after
the later of the commencement of the offering of the Notes represented by a
Regulation S Global Note and the issue date of such Notes (such period through
and including such 40th day, the "Restricted Period"), a beneficial interest in
------------------
such Regulation S Global Note may be held only through Euroclear or Clearstream
unless delivery is made in accordance with the applicable provisions of Section
2.17.
(f) The Holder of any Global Note may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a Holder is entitled to take under this
Indenture or the Notes.
SECTION 2.17. Transfer and Exchange of Notes.
------------------------------
(a) Transfer and Exchange of Global Notes. A Global Note may not be
------------------------------------------
transferred as a whole except as set forth in Section 2.16(b). Global Notes will
not be exchanged by the Company for Physical Notes except under the
circumstances described in Section in Section 2.16(b). Global Notes also may be
exchanged or replaced, in whole or in part, as provided in Sections 2.08 and
2.11. Beneficial interests in a Global Note may be transferred and exchanged as
provided in Section 2.17(b) or 2.17(f).
-50-
(b) Transfer and Exchange of Beneficial Interests in Global Notes. The
-----------------------------------------------------------------
transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the provisions of this
Indenture and the applicable rules and procedures of the Depository. Beneficial
interests in Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Beneficial interests in Global Notes shall be transferred or
exchanged only for beneficial interests in Global Notes. Transfers and exchanges
of beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
----------------------------------------------------------------
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take de-livery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in a Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). A beneficial interest in an Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.17(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
-----------------------------------------------------------------
Global Notes. In connection with all transfers and exchanges of beneficial
------------
interests in any Global Note that is not subject to Section 2.17(b)(i), the
transferor of such beneficial interest must deliver to the Registrar (1) a
written order from an Agent Member given to the Depository in accordance
with the applicable rules and procedures of the Depository directing the
Depository to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
applicable rules and procedures of the Depository containing information
regarding the Agent Member account to be credited with such increase. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 2.17(f).
-51-
(iii) Transfer of Beneficial Interests to Another Restricted Global
----------------------------------------------------------------
Note. A beneficial interest in a Restricted Global Note may be transferred
----
to a Person who takes delivery thereof in the form of a beneficial interest
in another Restricted Global Note if the transfer complies with the
requirements of Section 2.17(b)(ii) above and the Registrar receives the
following:
(A) if the transferee will take delivery in the form of a
beneficial interest in a Rule 144A Global Note, then the transferor
must deliver a certificate in the form of Exhibit D, including the
---------
certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a
beneficial interest in a Regulation S Global Note, then the transferor
must deliver a certificate in the form of Exhibit D, including the
---------
certifications in item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
----------------------------------------------------------------
Global Note for Beneficial Interests in an Unrestricted Global Note. A
------------------------------------------------------------------------
beneficial interest in a Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.17(b)(ii) above and
the Registrar receives the following:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from
such holder in the form of Exhibit E, including the certifications in
---------
item (1)(a) thereof; or
(B) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Note, a certificate from such holder in the
form of Exhibit D, including the certifications in item (4) thereof,
---------
and, in each such case, if the Registrar so requests or if the
applicable rules and procedures of the Depositary, so require, an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act. If any such transfer or exchange is effected
pursuant to this subparagraph (iv) at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of
an written order of the Company in the form of an Officers' Certificate in
accordance with Section 2.01, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred or exchanged
pursuant to this subparagraph (iv).
-52-
(v) Transfer and Exchange of Beneficial Interests in an Unrestricted
Global Note for Beneficial Interests in a Restricted Global Note.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer and Exchange of Beneficial Interests in Global Notes for
Physical Notes. A beneficial interest in a Global Note may not be exchanged for
a Physical Note except under the circumstances described in Section 2.16(b). A
beneficial interest in a Global Note may not be transferred to a Person who
takes delivery thereof in the form of a Physical Note except under the
circumstances described in Section 2.16(b).
(d) Transfer and Exchange of Physical Notes for Beneficial Interests in
Global Notes. Physical Notes shall be transferred or exchanged only for
beneficial interests in Global Notes. Transfers and exchanges of beneficial
interests in the Global Notes also shall require compliance with either
subparagraph (i), (ii) or (ii) below, as applicable:
(i) Restricted Physical Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Physical Note proposes to
exchange such Restricted Physical Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Physical Note to a
Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Physical Note proposes to
exchange such Restricted Physical Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of
Exhibit E, including the certifications in item (2)(a) thereof;
(B) if such Restricted Physical Note is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in Exhibit D,
including the certifications in item (1) thereof;
(C) if such Restricted Physical Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903
or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit D, including the certifications in item (2) thereof;
-53-
(D) if such Restricted Physical Note is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit D, including the
----------
certifications in item (3)(a) thereof;
(E) if such Restricted Physical Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (D) above, a certificate to the
effect set forth in Exhibit D, including the certifications,
----------
certificates and Opinion of Counsel required by item (3)(d) thereof,
if applicable; or
(F) if such Restricted Physical Note is being transferred to the
Company or a Subsidiary thereof, a certificate to the effect set forth
in Exhibit D, including the certifications in item (3)(b) thereof,
---------
the Trustee shall cancel the Restricted Physical Note, and increase or
cause to be increased the aggregate principal amount of the appropriate
Restricted Global Note.
(ii) Restricted Physical Notes to Beneficial Interests in Unrestricted
-----------------------------------------------------------------
Global Notes. A Holder of a Restricted Physical Note may exchange such
-------------
Restricted Physical Note for a beneficial interest in an Unrestricted
Global Note or transfer such Restricted Physical Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note only if the Registrar receives the following:
(A) if the Holder of such Restricted Physical Note proposes to
exchange such Restricted Physical Note for a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit E, including the certifications in item (1)(b) thereof; or
---------
(B) if the Holder of such Restricted Physical Notes proposes to
transfer such Restricted Physical Note to a Person who shall take
delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the form
of Exhibit D, including the certifications in item (4) thereof,
---------
and, in each such case, if the Registrar so requests or if the
applicable rules and procedures of the Depositary, so require, an Opinion
of Counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act and
that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance
with the Securities Act. Upon satisfaction of the conditions of this
subparagraph (ii), the Trustee shall cancel the Restricted Physical Notes
and increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note. If any such transfer or exchange is effected
pursuant to this subparagraph (ii) at a time when an Unrestricted Global
Note has not yet been issued, the Company shall issue and, upon receipt of
an written order of the Company in the form of an Officers' Certificate in
accordance with Section 2.01, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of Restricted Physical Notes transferred or
exchanged pursuant to this subparagraph (ii).
-54-
(iii) Unrestricted Physical Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Physical Note may
exchange such Unrestricted Physical Note for a beneficial interest in an
Unrestricted Global Note or transfer such Unrestricted Physical Note to a
Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note at any time. Upon receipt of a request for such
an exchange or transfer, the Trustee shall cancel the applicable
Unrestricted Physical Note and increase or cause to be increased the
aggregate principal amount of one of the Unrestricted Global Notes. If any
such transfer or exchange is effected pursuant to this subparagraph (iii)
at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an written order of the Company in
the form of an Officers' Certificate in accordance with Section 2.01, the
Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of
Unrestricted Physical Notes transferred or exchanged pursuant to this
subparagraph (iii).
(iv) Unrestricted Physical Notes to Beneficial Interests in Restricted
Global Notes. An Unrestricted Physical Note cannot be exchanged for, or
transferred to a Person who takes delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(e) Transfer and Exchange of Physical Notes for Physical Notes. Upon
request by a Holder of Physical Notes and such Holder's compliance with the
provisions of this Section 2.17(e), the Registrar shall register the transfer or
exchange of Physical Notes. Prior to such registration of transfer or exchange,
the requesting Holder shall present or surrender to the Registrar the Physical
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 2.17(e).
(i) Restricted Physical Notes to Restricted Physical Notes. A
Restricted Physical Note may be transferred to and registered in the name
of a Person who takes delivery thereof in the form of a Restricted Physical
Note if the Registrar receives the following:
-55-
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the
form of Exhibit D, including the certifications in item (1) thereof;
---------
(B) if the transfer will be made pursuant to Rule 903 or Rule 904
under the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit D, including the certifications in
---------
item (2) thereof;
(C) if the transfer will be made pursuant to an exemption from
the registration requirements of the Securities Act in accordance with
Rule 144 under the Securities Act, a certificate to the effect set
forth in Exhibit D, including the certifications in item (3)(a)
----------
thereof;
(D) if the transfer will be made to an Institutional Accredited
Investor in reliance on an exemption from the registration
requirements of the Securities Act other than those listed in
subparagraphs (A) through (D) above, a certificate to the effect set
forth in Exhibit D, including the certifications, certificates and
Opinion of Counsel required by item (3)(d) thereof, if applicable; and
(E) if such transfer will be made to the Company or a Subsidiary
thereof, a certificate to the effect set forth in Exhibit D, including
---------
the certifications in item (3)(b) thereof.
(ii) Restricted Physical Notes to Unrestricted Physical Notes. Any
----------------------------------------------------------
Restricted Physical Note may be exchanged by the Holder thereof for an
Unrestricted Physical Note or transferred to a Person who takes delivery
thereof in the form of an Unrestricted Physical Note if the Registrar
receives the following:
(1) if the Holder of such Restricted Physical Note proposes to
exchange such Restricted Physical Note for an Unrestricted Physical
Note, a certificate from such Holder in the form of Exhibit E,
----------
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Restricted Physical Note proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Physical Note, a certificate from such Holder
in the form of Exhibit D, including the certifications in item (4)
---------
thereof,
-56-
and, in each such case, if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Company to the effect
that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Unrestricted Physical Notes to Unrestricted Physical Notes.
----------------------------------------------------------
A Holder of an Unrestricted Physical Note may transfer such
Unrestricted Physical Notes to a Person who takes delivery thereof in
the form of an Unrestricted Physical Note at any time. Upon receipt of
a request to register such a transfer, the Registrar shall register
the Unrestricted Physical Notes pursuant to the instructions from the
Holder thereof.
(iv) Unrestricted Physical Notes to Restricted Physical Notes. An
--------------------------------------------------------
Unrestricted Physical Note cannot be exchanged for, or transferred to
a Person who takes delivery thereof in the form of, a Restricted
Physical Note.
(f) Cancellation and/or Adjustment of Global Notes. At such time as all
------------------------------------------------
beneficial interests in a particular Global Note have been exchanged for
Physical Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.12. At any
time prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note or for Physical Notes, the
principal amount of Notes represented by such Global Note shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or by the Depository at the direction of the Trustee to reflect such reduction;
and if the beneficial interest is being exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note shall be increased accordingly and an
endorsement shall be made on such Global Note by the Trustee or by the
Depository at the direction of the Trustee to reflect such increase.
(g) Private Placement Legend. Upon the registration of transfer, exchange
------------------------
or replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
registration of transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar shall deliver only Notes that bear the Private
Placement Legend unless (i) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act or
(ii) such Note has been sold pursuant to an effective registration statement
under the Securities Act and the Registrar has received an Officers' Certificate
from the Company to such effect.
-57-
(h) General. All Global Notes and Physical Notes issued upon any
-------
registration of transfer or exchange of Global Notes or Physical Notes shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or Physical Notes
surrendered upon such registration of transfer or exchange.
The Registrar shall retain for a period of two years copies of all letters,
notices and other written communications received pursuant to Section 2.16 or
this Section 2.17. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable notice to the Registrar.
SECTION 2.18. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months and actual days elapsed.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Election To Redeem; Notices to Trustee.
--------------------------------------
If the Company elects to redeem Notes pursuant to paragraph 5 or 6 of the
Notes at least 45 days prior to the Redemption Date (unless a shorter notice
shall be agreed to in writing by the Trustee) but not more than 65 days before
the Redemption Date, the Company shall notify the Trustee in writing of the
Redemption Date, the principal amount of Notes to be redeemed and the redemption
price(s), and deliver to the Trustee an Officers' Certificate stating that such
redemption will comply with the conditions contained in paragraph 5 or 6 of the
Notes. Notice given to the Trustee pursuant to this Section 3.01 may not be
revoked after the time that notice is given to Noteholders pursuant to Section
3.03.
SECTION 3.02. Selection by Trustee of Notes To Be Redeemed.
--------------------------------------------
If less than all of the Notes are to be redeemed at any time, selection of
Notes for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Notes to be redeemed are listed or, if the Notes are not so listed, on a pro
rata basis, by lot or by such other method as the Trustee deems fair and
appropriate; provided that no Notes with a principal amount of $1,000 or less
shall be redeemed in part. Notwithstanding the foregoing, any redemption
following an Equity Offering will be made on a pro rata basis or as nearly a pro
rata basis as practicable. For all purposes of this Indenture unless the context
otherwise requires, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
-58-
SECTION 3.03. Notice of Redemption.
--------------------
At least 30 days, and no more than 60 days, before a Redemption Date, the
Company shall mail, or cause to be mailed, a notice of redemption by first-class
mail to each Holder of Notes to be redeemed at his or her last address as the
same appears on the registry books maintained by the Registrar pursuant to
Section 2.06.
The notice shall identify the Notes to be redeemed (including the CUSIP,
ISIN and/or Common Code numbers thereof) and shall state:
(1) the Redemption Date;
(2) the redemption price and the amount of premium and accrued
interest to be paid;
(3) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date and upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(6) that unless the Company defaults in making the redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
Redemption Date;
(7) that paragraph 5 or 6, as applicable, of the Notes is the
provision of the Notes pursuant to which the redemption is occurring;
and
(8) the aggregate principal amount of Notes that are being redeemed.
At the Company's written request made at least 15 Business Days prior to
the date on which notice is to be given, the Trustee shall give the notice of
redemption in the Company's name and at the Company's sole expense.
-59-
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.03 is mailed, Notes
called for redemption become due and payable on the Redemption Date and at the
redemption price, including any premium, plus interest accrued to the Redemption
Date. Upon surrender to the Paying Agent, such Notes shall be paid at the
redemption price, including any premium, plus interest accrued to the Redemption
Date; provided that if the Redemption Date is after a regular record date and on
or prior to the Interest Payment Date, the accrued interest shall be payable to
the Holder of the redeemed Notes registered on the relevant record date; and
provided, further, that if a Redemption Date is a Legal Holiday, payment shall
be made on the next succeeding Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 A.M., New York City time, on each Redemption Date, the
Company shall deposit with the Paying Agent U.S. Dollars sufficient to pay the
redemption price of, including premium, if any, and accrued interest on any and
all Notes to be redeemed on that date (other than Notes or portions thereof
called for redemption on that date which have been delivered by the Company to
the Trustee for cancellation).
On and after any Redemption Date, if money sufficient to pay the redemption
price of, including premium, if any, and accrued interest on all Notes called
for redemption shall have been made available in accordance with the immediately
preceding paragraph, the Notes called for redemption will cease to accrue
interest and the only right of the Holders of such Notes will be to receive
payment of the redemption price of and, subject to the first proviso in Section
3.04, accrued and unpaid interest on such Notes to the Redemption Date. If any
Note surrendered for redemption shall not be so paid, interest will be paid,
from the Redemption Date until such redemption payment is made, on the unpaid
principal of the Note and any interest not paid on such unpaid principal, in
each case at the rate and in the manner provided in the Notes.
SECTION 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Trustee shall
authenticate for the Holder thereof a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
----------------
The Company shall pay the principal of and interest on the Notes on the
dates and in the manner provided in the Notes and this Indenture. An installment
of principal or interest shall be considered paid on the date it is due if the
Trustee or the Paying Agents hold on that date U.S. Dollars designated for and
sufficient to pay such installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law), and overdue
interest, to the extent lawful, at the rate specified in the Notes.
SECTION 4.02. Maintenance of Office or Agency.
-------------------------------
(a) The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee or Registrar) where Notes may be surrendered for registration of
transfer or for exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
(b) The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
(c) The Company hereby designates the Corporate Trust Office of the
Trustee, or its Agent, in the Borough of Manhattan, The City of New York, as
such office or agency of the Company in accordance with Section 2.04.
SECTION 4.03. Legal Existence.
---------------
Except as permitted by Article Five, Parent shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its legal
existence,
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and the corporate, partnership or other existence of each Restricted Subsidiary,
in accordance with the respective organizational documents (as the same may be
amended from time to time) of Parent, Crown and the Company and each such
Restricted Subsidiary and (ii) the material rights (charter and statutory) and
franchises of Parent, Crown and the Company and such Restricted Subsidiaries;
provided that Parent, Crown and the Company shall not be required to preserve
any such right, franchise, or the corporate, partnership or other existence of
any of its Restricted Subsidiaries (other than Crown or the Company) if the
Board of Directors of Parent, Crown or the Company, as applicable, shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of Parent, Crown or the Company, as applicable and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.04. Maintenance of Properties; Insurance; Compliance with Law.
---------------------------------------------------------
(a) Parent shall, and shall cause each of its Restricted Subsidiaries to,
at all times cause all material properties used in the conduct of their
respective businesses to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and supplied with all
necessary equipment, and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereto; provided, however, that
nothing in this Section 4.04(a) shall prevent Parent or any of its Restricted
Subsidiaries from discontinuing the operation and maintenance of any of such
material properties if such discontinuance is, in the reasonable judgment of
Parent, desirable in the conduct of the business of Parent and its Subsidiaries,
taken as a whole.
(b) Parent shall maintain insurance, and cause each of its Restricted
Subsidiaries to maintain insurance, with financially sound and reputable
insurers, with respect to such of its properties, against such risks, casualties
and contingencies and in such types and amounts as are consistent with sound
business practice, it being understood that this paragraph (b) shall not prevent
the use of deductible or excess loss insurance and shall not prevent (i) Parent
or any of its Subsidiaries from acting as a self-insurer or maintaining
insurance with another Subsidiary or Subsidiaries of Parent so long as such
action is consistent with sound business practice or (ii) Parent from obtaining
and owning insurance policies covering activities of its Subsidiaries.
(c) Parent shall, and shall cause each of its Restricted Subsidiaries to,
comply with all statutes, laws, ordinances or government rules and regulations
to which they are subject, non-compliance with which would materially adversely
affect the business, financial condition or results of operations of Parent and
its Restricted Subsidiaries, taken as a whole.
SECTION 4.05. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company and each of the Guarantors covenants (to the extent that it may
lawfully do so) that it shall not at any time insist upon, or plead (as a
defense or otherwise)
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or in any manner whatsoever claim or take the benefit or advantage of, any stay
or extension law or any usury law or other law which would prohibit or forgive
any of the Company and the Guarantors from paying all or any portion of the
principal of, premium, if any, and/or interest on the Notes as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) each of the Company and the Guarantors hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.06. Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, an Officers' Certificate (as enumerated by Section
314(a)(4) of the TIA) stating that each Officer has conducted or supervised a
review of the activities of Parent and its Restricted Subsidiaries and Parent's
and its Restricted Subsidiaries' performance under this Indenture and the
Security Documents during such fiscal year, and further stating, as to each such
Officer signing such certificate, that, to the best of such Officers' knowledge,
based upon such review, Parent and the Company have fulfilled all obligations
under this Indenture and the Security Documents or, if there has been a Default
under this Indenture or the Security Documents that is continuing, a description
of the event and what action Parent and its Restricted Subsidiaries are taking
or propose to take with respect thereto.
(b) The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, a certificate of an Officer detailing any continuing Default
of which such Officer is aware, its status and what action Parent and its
Restricted Subsidiaries are taking or propose to take with respect to such
Default.
(c) The Company shall provide written notice to the Trustee of any change
in Parent's or the Company's fiscal year.
(d) The Company shall promptly notify the Trustee, in writing, the first
time the Notes are rated Investment Grade Rating; provided, however, that the
failure to deliver such notice shall in no event be deemed a Default or an Event
of Default.
SECTION 4.07. Taxes.
-----
Parent shall, and shall cause each of its Restricted Subsidiaries to, pay
prior to delinquency (i) all material taxes, assessments, and governmental
levies and (ii) all lawful material claims for labor, materials and supplies
which, in each case, if unpaid, might by law become a Lien upon the property of
Parent or any of its Subsidiaries; provided, however, that, subject to the terms
of the applicable Security Documents, neither Parent nor any of its Subsidiaries
shall be required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been made in accordance with GAAP.
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SECTION 4.08. Repurchase at the Option of Holders upon Change of Control.
----------------------------------------------------------
(a) Upon the occurrence of a Change of Control, each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
-----------------------
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, thereon to the date of purchase (the "Change of Control
------------------
Payment").
-------
(b) Within 30 days following any Change of Control, the Company shall send,
or at the Company's written request the Trustee shall send, by first-class mail,
postage prepaid, a notice to each Holder of Notes at its last registered
address, which notice shall govern the terms of the Change of Control Offer. The
notice shall describe the transaction or transactions that constitute the Change
of Control and offer to repurchase Notes on the purchase date specified in such
notice (which must be no earlier than 30 days nor later than 60 days from the
date such notice is mailed, other than as required by law) (the "Change of
---------
Control Payment Date") pursuant to the procedures required by this Indenture and
--------------------
described in such notice. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.08 and that all Notes validly tendered and not validly withdrawn
will be accepted for payment;
(2) the Change of Control Payment and the Change of Control Payment
Date (which shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed, other than as may be required by law);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent and Registrar for the Note at the
address specified in the notice prior to the close of business on the
Business Day prior to the Change of Control Payment Date;
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(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the third Business Day prior to the
Change of Control Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; provided, however, that each Note purchased and each new
Note issued shall be in a principal amount of $1,000 or integral multiples
thereof; and
(8) the circumstances and relevant facts regarding such Change of
Control.
(c) On the Change of Control Payment Date, the Company shall, to the extent
lawful:
(1) accept for payment all Notes or portions thereof (in integral
multiples of $1,000) validly tendered and not validly withdrawn pursuant to
the Change of Control Offer;
(2) deposit with the Paying Agent an amount in U.S. Dollars equal to
the Change of Control Payment in respect of all Notes or portions thereof
so tendered; and
(3) deliver or cause to be delivered to the Trustee all Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes (or portions thereof) being purchased by the
Company.
Upon receipt by the Paying Agent of the monies specified in clause (2) above and
the Officers' Certificate specified in clause (3) above, such Paying Agent shall
promptly mail to each Holder of Notes so tendered the Change of Control Payment
for such Notes, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder of Notes a new Note equal in
principal amount to any unpurchased portion of the Notes surrendered, if any;
provided that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Change of Control Offer on or as soon as practicable after the Change of
Control Payment Date.
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(d) Upon the payment of the Change of Control Payment, the Trustee shall,
subject to the provisions of Section 2.16, return the Notes purchased to the
Company for cancellation. The Trustee may act as the Paying Agent for purposes
of any Change of Control Offer.
(e) The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in a
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 4.08 with respect to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
(f) The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of the Notes as a result of a Change of Control. To the extent that
the provisions of any securities laws or regulations conflict with provisions of
this covenant, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
paragraph by virtue thereof.
SECTION 4.09. Limitation on Incurrence of Indebtedness and Issuance of Preferred
------------------------------------------------------------------
Stock.
-----
(a) Parent shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, incur any Indebtedness (including
Acquired Debt) and Parent shall not permit any of its Restricted Subsidiaries to
issue any shares of Preferred Stock; provided, however, that the Company may
incur Indebtedness or issue shares of Preferred Stock and any Guarantor may
incur Indebtedness or issue shares of Preferred Stock, if the Fixed Charge
Coverage Ratio for Parent's most recently ended four full fiscal quarters for
which internal financial statements are available immediately preceding the date
on which such additional Indebtedness is incurred or such Preferred Stock is
issued would have been at least 2.0 to 1.0, determined on a pro forma basis
(including a pro forma application of the net proceeds therefrom), as if the
additional Indebtedness had been incurred, or the Preferred Stock had been
issued, as the case may be, at the beginning of such four-quarter period.
(b) The foregoing provisions shall not apply to any of the following:
(1) the incurrence by Parent or any Restricted Subsidiary of
Indebtedness under one or more Credit Facilities in an aggregate principal
amount, together with the aggregate Off-Balance Sheet Financing Amount
attributable to Qualified Receivables Transactions, not to exceed at any
time outstanding $1,400,000,000, less the amount of any such Indebtedness
permanently retired with the Net Proceeds from any Asset Sale applied from
and after the Issue Date to reduce the outstanding amounts pursuant to
Section 4.12; provided that the aggregate amount of Indebtedness of
Non-Guarantor Subsidiaries outstanding under this clause (1) shall not at
any time exceed $200,000,000;
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(2) (a) the incurrence by the Company of Indebtedness represented by
$1,085,000,000 aggregate principal amount of the Dollar Second Priority
Notes issued on the Issue Date and the Second Priority Exchange Notes
issued in exchange therefor, and the incurrence of the Second Priority Note
Guarantees of such Dollar Second Priority Notes by the Guarantors under the
Second Priority Notes Indenture, (b) the incurrence by the Company of
Indebtedness represented by (euro)285,000,000 aggregate principal amount of
the Euro Second Priority Notes issued on the Issue Date and the Second
Priority Exchange Notes issued in exchange therefor, and the incurrence of
the Second Priority Note Guarantees of such Euro Second Priority Notes by
the Guarantors under the Second Priority Notes Indenture and (c) the
incurrence by the Company of Indebtedness represented by $725,000,000
aggregate principal amount of the Notes issued on the Issue Date and the
Exchange Notes issued in exchange therefor, and the incurrence of the Note
Guarantees of such Notes by the Guarantors under this Indenture;
(3) the incurrence by Parent or any of its Restricted Subsidiaries of
Indebtedness represented by Capital Lease Obligations or Purchase Money
Obligations, in each case, incurred for the purpose of financing all or any
part of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of Parent or such
Restricted Subsidiary; provided that the aggregate principal amount of
Indebtedness incurred pursuant to this clause (3), and refinancings
thereof, shall not exceed 5.0% of Consolidated Tangible Assets at any time
outstanding;
(4) Existing Indebtedness;
(5) the incurrence by Parent or any of its Restricted Subsidiaries of
Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to refinance, Existing Indebtedness or Indebtedness that was
permitted to be incurred pursuant to subsection (a) of this Section 4.09 or
pursuant to clause (2) above or this clause (5);
(6) (i) Indebtedness of Parent owed to a Restricted Subsidiary;
provided, however, that upon any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or such Indebtedness being owed to any Person other
than a Restricted Subsidiary, Parent shall be deemed to have incurred
Indebtedness not permitted by this clause (6), and (ii) Indebtedness of any
Restricted Subsidiary of Parent owed to Parent or any of its other
Restricted Subsidiaries; provided that upon such Indebtedness being owed to
any Person other than Parent or a Restricted Subsidiary, such Restricted
Subsidiary shall be deemed to have incurred Indebtedness not permitted by
this clause (6);
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(7) the incurrence by Parent or any of its Restricted Subsidiaries of
Hedging Obligations that are incurred in the ordinary course of business
for the purpose of fixing or hedging (i) interest rate risk with respect to
any Indebtedness of such Person so long as such Indebtedness is permitted
by the terms of this Indenture to be outstanding, (ii) exchange rate risk
with respect to agreements or Indebtedness of such Person payable or
denominated in a currency other than the principal currency in which such
Person's revenue is generated or (iii) commodity price risk with respect to
commodities purchased by such Person in the ordinary course of its business
and, in each case, not for speculative purposes;
(8) Indebtedness of Parent or any of its Restricted Subsidiaries
arising from the honoring by a bank or other financial institution of a
check, draft or similar instrument inadvertently (except in the case of
daylight overdrafts) drawn against insufficient funds in the ordinary
course of business; provided, however, that such Indebtedness is
extinguished within five Business Days of incurrence;
(9) Indebtedness of Parent or any of its Restricted Subsidiaries in
respect of performance bonds, bankers' acceptances, workers' compensation
claims, surety or appeal bonds, payment obligations in connection with
self-insurance or similar obligations, and bank overdrafts (and letters of
credit in respect thereof) in the ordinary course of business;
(10) Indebtedness of Parent or any Restricted Subsidiary owed to
(including obligations in respect of letters of credit for the benefit of)
any Person in connection with worker's compensation, health, disability or
other employee benefits or property, casualty or liability insurance
provided by such Person to Parent or such Restricted Subsidiary pursuant to
reimbursement or indemnification obligations to such Person, in each case
incurred in the ordinary course of business and consistent with past
practices;
(11) Indebtedness arising from agreements of Parent or any Restricted
Subsidiary providing for indemnification, adjustment of purchase price,
earnout obligations or similar obligations, in each case incurred or
assumed in connection with the Transfer of any business, asset or Equity
Interests permitted by this Indenture;
(12) Non-Recourse Accounts Receivable Subsidiary Indebtedness incurred
by any Accounts Receivable Subsidiary in a Qualified Receivables
Transaction; and
(13) the incurrence by Parent or any Restricted Subsidiary of
Indebtedness or issuance of Preferred Stock (in addition to Indebtedness
and Preferred Stock that may be incurred or issued pursuant to any other
clause of this Section 4.09) in an aggregate principal amount (or
liquidation value in the case of Preferred Stock) not to exceed
$150,000,000 at any time outstanding.
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Accrual of interest, accretion or amortization of original issue discount, the
payment of interest on any Indebtedness in the form of additional Indebtedness
with the same terms and the payment of dividends on Disqualified Stock or
Preferred Stock in the form of additional shares of the same class of
Disqualified Stock or Preferred Stock shall not be deemed to be an incurrence of
Indebtedness or an issuance of Preferred Stock for purposes of this Section
4.09; provided, in each such case, that the amount thereof is included in Fixed
Charges of Parent to the extent provided for in the definition of "Fixed
Charges." The maximum amount of Indebtedness that Parent or any Restricted
Subsidiary may incur pursuant to this Section 4.09 shall not be deemed to be
exceeded solely as the result of fluctuations in the exchange rates of
currencies.
(c) Parent shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, incur any Indebtedness that is or purports to be by its
terms (or by the terms of any agreement governing such Indebtedness)
subordinated to any other Indebtedness of Parent or of such Restricted
Subsidiary, as the case may be, unless such Indebtedness is also by its terms
(or by the terms of any agreement governing such Indebtedness) expressly
subordinated to the Notes or any Note Guarantee of such Restricted Subsidiary to
the extent it is or may become a Guarantor, on substantially the same terms as
such Indebtedness is subordinated to such other Indebtedness of Parent or such
Restricted Subsidiary, as the case may be; provided, however, that in no event
shall Indebtedness of Parent or any Restricted Subsidiaries shall be deemed to
be contractually subordinated in right of payment to any other Indebtedness of
Parent or such Restricted Subsidiary solely by virtue of being unsecured or
secured by a junior Lien.
(d) Until such time as the Proceeds Sharing Agreement shall have been
terminated in accordance with its terms, neither Parent nor any of its
Restricted Subsidiaries shall cause or permit any of the Company or any
Restricted Subsidiary of the Company to incur, Guarantee or otherwise become an
obligor in respect of any Indebtedness (i) incurred pursuant to either (x) the
Fixed Charge Coverage Ratio test set forth in subsection (a) of this Section
4.09, (y) clause (1) or (2) of subsection (b) of this Section 4.09 or (z) clause
(5) of subsection (b) of this Section 4.09 as Permitted Refinancing Indebtedness
of Indebtedness incurred pursuant to clause (2) of subsection (b) of this
Section 4.09 or subsection (a) of this Section 4.09 or (ii) that is secured by a
Lien permitted under clause (1) or (2) of the definition of "Permitted
Collateral Liens" unless, in each case, to the extent that such Indebtedness is
not otherwise Covered Debt under the Proceeds Sharing Agreement, such
Indebtedness is made subject to the Proceeds Sharing Agreement.
(e) For purposes of determining compliance with this Section 4.09, in the
event that an item of Indebtedness or Preferred Stock meets the criteria of more
than one of the categories of Indebtedness
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or Preferred Stock described in clauses (1) through (13) of subsection (b) of
this Section 4.09, or is entitled to be incurred pursuant to subsection (a) of
this Section 4.09, Parent may, in its sole discretion, classify such item of
Indebtedness or Preferred Stock on the date of its incurrence, or later
reclassify all or a portion of such item of Indebtedness, in any manner that
complies with this covenant and such Indebtedness or Preferred Stock will be
treated as having been incurred pursuant to such clauses or the first paragraph
hereof, as the case may be, designated by Parent; provided that any Indebtedness
under the New Credit Facility outstanding on the Issue Date shall at all times
be deemed to have been incurred pursuant to clause (1) of subsection (b) of this
Section 4.09.
SECTION 4.10. Limitation on Restricted Payments.
---------------------------------
(a) Parent shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any distribution (including in
connection with any merger or consolidation) on account of any Equity
Interests of Parent or any of its Restricted Subsidiaries (other than
dividends or distributions payable in Equity Interests (other than
Disqualified Stock) of Parent or such Restricted Subsidiaries or dividends
or distributions payable to Parent or any Restricted Subsidiary of Parent);
(2) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of Parent, any of its Restricted Subsidiaries or any other
Affiliate of Parent (other than any such Equity Interests owned by Parent
or any Restricted Subsidiary of Parent);
(3) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness that is expressly subordinated by its terms in right of
payment to the Notes or a Note Guarantee (other than intercompany
Indebtedness exclusively between or among Parent and one or more of its
Restricted Subsidiaries); or
(4) make any Restricted Investment
(all such payments and other actions set forth in clauses (1) through (4) above
being collectively referred to as "Restricted Payments"), unless, at the time of
-------------------
such Restricted Payment:
(A) no Default or Event of Default has occurred and is continuing or
would occur as a consequence thereof;
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(B) Parent would, at the time of such Restricted Payment and after
giving pro forma effect thereto as if such Restricted Payment had been made
at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed
Charge Coverage Ratio test set forth in subsection (a) of Section 4.09; and
(C) such Restricted Payment, together with the aggregate of all other
Restricted Payments made by Parent and its Restricted Subsidiaries from and
after the Issue Date (excluding Restricted Payments permitted by clauses
(2)(i), (3)(i) and (5) of subsection (b) of this Section 4.10), is less
than the sum of:
(w) 50% of the Consolidated Net Income of Parent for the period
(taken as one accounting period) from April 1, 2003 to the end of
Parent's most recently ended fiscal quarter for which internal
financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a
deficit, minus 100% of such deficit); plus
(x) 100% of the aggregate net cash proceeds (including any
non-cash proceeds that have been converted into cash) received by
Parent from the issuance and sale of its Qualified Capital Stock or
from contributions to its common equity from and after the Issue Date
(other than Qualified Capital Stock issued to or contributions to
common equity received from a Restricted Subsidiary of Parent); plus
(y) 100% of the aggregate net cash proceeds (including any
non-cash proceeds that have been converted into cash) received by
Parent from the issuance and sale of debt securities or Disqualified
Stock of Parent or any Restricted Subsidiary that have been converted
into or exchanged for Qualified Capital Stock of Parent from and after
the Issue Date (other than convertible or exchangeable debt securities
or Disqualified Stock issued to a Restricted Subsidiary of Parent);
plus
(z) to the extent not included in the calculation of Consolidated
Net Income referred to in clause (w) above, an amount equal to,
without duplication, the sum of:
(i) the aggregate amount returned in cash (including any
non-cash proceeds that have been converted into cash) on or with
respect to Restricted Investments made subsequent to the Issue
Date whether through interest payments, principal payments,
dividends or other distributions or payments;
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(ii) the net cash proceeds (including any non-cash proceeds
that have been converted into cash) received by Parent or any of
its Restricted Subsidiaries from the disposition of all or any
portion of such Restricted Investments (other than to a
Restricted Subsidiary of Parent); and
(iii) upon redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the Fair Market Value of all outstanding
Investments by Parent and its Restricted Subsidiaries in such
Subsidiary at the time of such designation;
provided, however, that the sum of clauses (i), (ii) and (iii) shall
not exceed the aggregate amount of all such Investments made subsequent to
the Issue Date.
(b) The foregoing provisions will not prohibit any or all of the following:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such payment would have
complied with the provisions of this Indenture;
(2) the purchase, redemption or other acquisition or retirement for
value of any Equity Interests of Parent or any Restricted Subsidiary (i)
solely in exchange for Equity Interests of Parent (other than Disqualified
Stock) or (ii) out of the net cash proceeds of the substantially concurrent
issuance or sale (other than to a Restricted Subsidiary of Parent) of
Equity Interests of Parent (other than Disqualified Stock);
(3) the payment, purchase, redemption, defeasance or other acquisition
or retirement for value of subordinated Indebtedness of Parent or any
Restricted Subsidiary solely (i) in exchange for Equity Interests of Parent
(other than Disqualified Stock) and/or (ii) with the net cash proceeds from
an incurrence of Permitted Refinancing Indebtedness and/or the
substantially concurrent issuance or sale (other than to a Restricted
Subsidiary of Parent) of Equity Interests of Parent (other than
Disqualified Stock);
(4) the purchase, redemption or other acquisition or retirement for
value of any Equity Interests of Parent held by employees or directors of
Parent or any of its Restricted Subsidiaries pursuant to any management
equity subscription agreement, stock option agreement or similar agreement;
provided that the aggregate price paid for all such purchased, redeemed,
acquired or retired Equity Interests shall not exceed the sum of (a)
$5,000,000 in any twelve-month period plus (b) the aggregate cash proceeds
received by Parent during such twelve-month period from any issuance of
Equity Interests by Parent to employees and directors of Parent and its
Restricted Subsidiaries;
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(5) the payment of dividends by a Restricted Subsidiary on any Equity
Interest of such Restricted Subsidiary if such dividend is paid pro rata to
all holders of such Equity Interest;
(6) the repurchase of Equity Interests of Parent deemed to occur upon
exercise of stock options if such Equity Interests represent a portion of
the exercise price of such options;
(7) in the event of a Change of Control, and if no Default or Event of
Default shall have occurred and be continuing, the payment, purchase,
redemption, defeasance or other acquisition or retirement of Indebtedness
that is subordinated by its terms in right of payment to the Notes or a
Note Guarantee, in each case, at a purchase price not greater than 101% of
the principal amount of such Indebtedness, plus any accrued and unpaid
interest thereon; provided that prior to or contemporaneously with such
payment, purchase, redemption, defeasance or other acquisition or
retirement, the Company has made the Change of Control Offer with respect
to the Notes and has repurchased all Notes validly tendered and not validly
withdrawn in connection with such Change of Control Offer;
(8) the purchase by the Parent of fractional shares arising out of
stock dividends, splits or combinations or business combinations;
(9) the acquisition in open market purchases of Capital Stock of
Parent for matching contributions to its employee stock purchase and
deferred compensation plans in the ordinary course of business in an
aggregate amount not to exceed $15,000,000 in any twelve-month period;
(10) the purchase, redemption, acquisition, cancellation or other
retirement for a nominal value per right of any rights granted to all the
holders of common stock of Parent pursuant to any shareholders' rights plan
adopted for the purpose of protecting shareholders from unfair takeover
tactics; provided that any such purchase, redemption, acquisition,
cancellation or other retirement of such rights shall not be for the
purpose of evading the limitations of this covenant (as determined in good
faith by the Board of Directors of Parent); and
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(11) other Restricted Payments in an aggregate amount not to exceed
$25,000,000 from and after the Issue Date.
(c) The Board of Directors of Parent may designate any Restricted
Subsidiary, or any newly acquired or created Subsidiary, to be an Unrestricted
Subsidiary if such designation would not cause a Default. For purposes of making
such designation, all outstanding Investments by Parent and its Restricted
Subsidiaries in the Subsidiary so designated, and all Investments by Parent and
its Restricted Subsidiaries to be made in connection with such acquisition or
creation, will be deemed to be, at the Company's election, either (i) Restricted
Payments at the time of such designation and will reduce the amount available
for Restricted Payments under subsection (b) of this Section 4.10 or (ii)
Permitted Investments under either clause (10) or (12) of the definition of
"Permitted Investments." All such outstanding Investments will be deemed to
constitute either Restricted Investments (in the case of a designation pursuant
to clause (i) of the preceding sentence) or Permitted Investments (in the case
of a designation pursuant to clause (ii) of the preceding sentence) in an amount
equal to the Fair Market Value of such Investments at the time of such
designation. Such designation will only be permitted if such Restricted
Investment would be permitted at such time and if such Restricted Subsidiary
otherwise meets the definition of an Unrestricted Subsidiary. For purposes of
determining compliance with this Section 4.10(c), in the event that a Restricted
Payment meets the criteria of more than one of the exceptions described in
clauses (1) through (11) of Section 4.10(b) or is entitled to be made pursuant
to subsection (a) of this Section 4.10, Parent may, in its sole discretion,
classify or reclassify such Restricted Payment or any portion thereof in any
manner that complies with this Section 4.10.
(d) The amount of all Restricted Payments (other than cash) will be the Fair
Market Value on the date of the Restricted Payment of the asset(s) or securities
proposed to be transferred or issued to or by Parent or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment.
SECTION 4.11. Limitation on Liens.
-------------------
Parent shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien of any kind upon any of its assets, now
owned or hereafter acquired, or upon any income or profits therefrom or assign
any rights to receive income therefrom except:
(1) in the case of any asset that does not constitute Collateral,
Permitted Liens; provided that any Lien on such assets shall be permitted
notwithstanding that it is not a Permitted Lien if all payments due under
this Indenture, the Notes and the Note Guarantees are secured on an equal
and ratable basis (or prior basis in the case of any such Indebtedness
which is subordinated in right of payment to the Notes or the Note
Guarantees) with the obligations so secured until such time as such
obligations are no longer secured by a Lien; and
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(2) in the case of any asset that constitutes Collateral, Permitted
Collateral Liens.
SECTION 4.12. Limitation on Asset Sales.
-------------------------
(a) Parent shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless each of the following
requirements is satisfied:
(1) Parent or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets or Equity Interests issued or sold or otherwise
disposed of;
(2) at least 75% of the consideration therefor received by Parent or
such Restricted Subsidiary, as the case may be, is in the form of (a) cash
and/or Cash Equivalents, (b) Replacement Assets or (c) any combination of
the consideration described in subclauses (a) and (b) of this clause (2);
provided that the amount of:
(i) any liabilities (as shown on Parent's or such Restricted
Subsidiary's most recent balance sheet or in the notes thereto) of
Parent or any of its Restricted Subsidiaries (other than liabilities
that are by their terms subordinated to the Notes or any Note
Guarantee) that are assumed by the transferee of any such assets as a
result of which Parent and its Restricted Subsidiaries are released
from further liability with respect thereto, and
(ii) any securities, notes or other obligations received by
Parent or any such Restricted Subsidiary from such transferee that are
converted within 180 days of receipt thereof by Parent or such
Restricted Subsidiary into cash (to the extent of the cash received)
shall, in each case, be deemed to be cash for purposes of this clause
(2); and
(3) if such Asset Sale involves the Transfer of Collateral, it
complies with the applicable provisions of the Security Documents.
(b) Within 360 days after the receipt of any Net Proceeds from an Asset
Sale, Parent or such Restricted Subsidiary may, at its option, cause such Net
Proceeds to be applied as follows:
(1) in the case of any Transfer of Collateral or Excluded Securities,
(a) to make an investment in or expenditure for Replacement Assets or other
capital expenditures on assets that constitute Collateral or to enter into
a binding commitment to make such an investment or expenditure; provided
that, in the case of a commitment to make an investment or expenditure,
such investment or expenditure shall have been made within 180 days of such
360th day (provided that in all such cases such investment or expenditure
shall be acquired or made by the Company or a Guarantor and, in the case of
investments in or expenditures for Replacement Assets, such Replacement
Assets shall be made subject to the Lien of the Security Documents), (b) to
repay Indebtedness under the New Credit Facility (including any Related
Obligations) and/or any Additional Pari Passu First Priority Indebtedness
(and, in each case, to permanently reduce amounts outstanding thereunder)
or (c) any combination of subclauses (a) and (b) of this clause (1); and
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(2) in all other cases, (a) to make an investment in or expenditure
for Replacement Assets or other capital expenditure or to enter into a
binding commitment to make such an investment or expenditure; provided
that, in the case of a commitment to make an investment or expenditure,
such investment or expenditure shall have been made within 180 days of such
360th day, (b) to repay Indebtedness (and to permanently reduce amounts
outstanding thereunder) secured by a Lien on the assets which are the
subject of such Asset Sale, (c) to repay Indebtedness under the New Credit
Facility (including any Related Obligations) and/or any Additional Pari
Passu First Priority Indebtedness (and, in each case, to permanently reduce
amounts outstanding thereunder) or (d) any combination of subclauses (a),
(b) and (c) of this clause (2).
(c) Any Net Proceeds from Asset Sales that are not applied or invested as
provided in subsection (b) of this Section 4.12 will be deemed to constitute
"Excess Proceeds." If on any date the aggregate amount of Excess Proceeds
----------------
exceeds $25,000,000 (the "Asset Sale Offer Trigger Date"), the Company shall be
-----------------------------
required to:
(1) to the extent that such Excess Proceeds resulted from the Transfer
of assets constituting Collateral or Excluded Securities:
(A) first, (i) to make an offer to the Holders of the Second
Priority Notes to purchase Second Priority Notes on a pro rata basis
at an offer price in cash in an amount equal to 100% of their
principal amount, plus accrued and unpaid interest, if any, to the
purchase date, and (ii) to the extent the Company so elects or is
required, to repay any other outstanding Pari Passu Second Priority
Indebtedness (or offer to purchase such Indebtedness if pursuant to
the terms of such Indebtedness the issuer thereof is only required to
offer to repay such Indebtedness) (and, in each case, permanently
reduce amounts outstanding thereunder) at a repayment (or repurchase)
price not to exceed 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the repayment (or repurchase) date;
(B) second, to the extent any Excess Proceeds remain after giving
effect to clause (A) above, (i) to make an offer ("Asset Sale Offer")
----------------
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to the Holders of the Notes to purchase Notes on a pro rata basis
at an offer price in cash in an amount equal to 100% of their
principal amount, plus accrued and unpaid interest, if any, to the
purchase date, in accordance with the procedures set forth in this
Section 4.12 and (ii) to the extent the Company so elects or is
required, to repay any other outstanding Pari Passu Third Priority
Indebtedness (or offer to purchase such Indebtedness if pursuant to
the terms of such Indebtedness the issuer thereof is only required to
offer to repay such Indebtedness) (and, in each case, permanently
reduce amounts outstanding thereunder) at a repayment (or repurchase)
price not to exceed 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the repayment (or repurchase) date;
and
(2) to the extent that such Excess Proceeds resulted from the Transfer
of assets not constituting Collateral or Excluded Securities (i) to make an
Asset Sale Offer to the Holders of the Notes to purchase such Notes on a
pro rata basis at an offer price in cash in an amount equal to 100% of
their principal amount, plus accrued and unpaid interest, if any, to the
purchase date, in accordance with the procedures set forth in this Section
4.12 and (ii) to the extent the Company so elects or is required, to repay
any other outstanding Pari Passu Indebtedness (including, without
limitation, Second Priority Notes) (or offer to purchase such Pari Passu
Indebtedness if pursuant to the terms of such Indebtedness the issuer
thereof is only required to offer to repay such Indebtedness) (and
permanently reduce amounts outstanding under such Pari Passu Indebtedness)
at a repayment (or repurchase) price not to exceed 100% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the repayment
(or repurchase) date.
(d) Each application of Excess Proceeds pursuant to (y) clause (1)(B) of
Section 4.12(c) shall be made on a pro rata basis among the Notes and any such
other Pari Passu Third Priority Indebtedness in proportion to the respective
amounts outstanding under each such item of Indebtedness and (z) clause (2) of
Section 4.12(c) shall be made on a pro rata basis among the Notes and any such
other Pari Passu Indebtedness in proportion to the respective amounts
outstanding under each such item of Indebtedness. To the extent that any Excess
Proceeds remain after compliance with clause (c) above, Parent or any Restricted
Subsidiary may use any remaining Excess Proceeds for any purpose not prohibited
under this Indenture; provided, however, that to the extent that all or any
portion of any remaining Excess Proceeds is comprised of proceeds of Asset Sales
of Collateral, such Excess Proceeds shall remain subject to the Liens of the
Security Documents. Upon completion of an Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero.
(e) All Net Proceeds and Excess Proceeds from Asset Sales (whether or not
involving Collateral) may, pending their application in accordance with this
Section 4.12, be used to temporarily reduce revolving credit borrowings under
(i) the New Credit Facility in the case of Asset Sales involving Collateral, or
(ii) any Credit Facility in the case of Asset Sales not involving Collateral, or
in either case, be invested in any manner that is not prohibited by this
Indenture. Upon consummation of any Asset Sale of assets constituting Collateral
permitted under the terms of this Indenture, the assets so Transferred in such
Asset Sale will be released from the Liens in favor of the Notes created by the
Security Documents.
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(f) Within 30 days following an Asset Sale Offer Trigger Date, the Company
shall send, or at the Company's written request the Trustee shall send, by
first-class mail, postage prepaid, a notice to each Holder of Notes at its last
registered address, which notice shall govern the terms of the Asset Sale Offer.
The notice shall offer to repurchase Notes on the purchase date specified in
such notice (which shall be no earlier than 30 days nor later than 60 days from
the date such notice is mailed, other than as required by law) (the "Asset Sale
----------
Offer Payment Date") pursuant to the procedures required by this Indenture and
------------------
described in such notice. The notice to the Holders shall contain all
instructions and materials necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer. Such notice shall state:
(1) that the Asset Sale Offer is being made pursuant to this Section
4.12 and that all Notes validly tendered and not validly withdrawn will be
accepted for payment; provided, however, that if the aggregate principal
amount of Notes validly tendered and not validly withdrawn exceeds the
amount of Excess Proceeds available in connection with the Asset Sale
Offer, the Trustee shall select the Notes to be purchased on a pro rata
basis;
(2) the offer price (including the amount of accrued interest) and the
Asset Sale Offer Payment Date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed, other than as
required by law);
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Offer Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the
Asset Sale Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent and Registrar for the Note at the address
specified in the notice prior to the close of business on the Business Day
prior to the Asset Sale Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the third Business Day prior to the
Asset Sale Offer Payment Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing its election to have such Note purchased; and
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(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; provided, however, that each Note purchased and each new
Note issued shall be in a principal amount of $1,000 or integral multiples
thereof.
(g) On the Asset Sale Offer Payment Date, the Company shall, to the extent
lawful:
(1) accept for payment all Notes or portions thereof (in integral
multiples of $1,000) validly tendered and not validly withdrawn pursuant to
the Asset Sale Offer; provided, however, that if the aggregate principal
amount of Notes validly tendered and not validly withdrawn exceeds the
amount of Excess Proceeds available in connection with the Asset Sale
Offer, the Trustee shall select the Notes to be purchased on a pro rata
basis;
(2) deposit with the Paying Agent an amount in U.S. Dollars equal to
the offer price (including the amount of accrued interest) in respect of
all Notes or portions thereof to be purchased; and
(3) deliver or cause to be delivered to the Trustee all Notes so
accepted together with an Officers' Certificate stating the aggregate
principal amount of Notes (or portions thereof) being purchased by the
Company.
Upon receipt by the Paying Agent of the monies specified in clause (2) above and
the Officers' Certificate specified in clause (3) above, such Paying Agent shall
promptly mail to each Holder of Notes so purchased the offer price (including
the amount of accrued interest) for such Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each Holder
of Notes a new Note equal in principal amount to any unpurchased portion of the
Notes purchased, if any; provided that each such new Note will be in a principal
amount of $1,000 or an integral multiple thereof. The Company will publicly
announce the results of the Asset Sale Offer on or as soon as practicable after
the Asset Sale Offer Payment Date.
(h) Upon the payment of the offer price (including the amount of accrued
interest) for any Notes purchased in the Asset Sale Offer, the Trustee shall,
subject to the provisions of Section 2.16, return such Notes to the Company for
cancellation. Any monies remaining after the purchase of Notes pursuant to an
Asset Sale Offer shall be returned within three Business Days to the Company by
the Paying Agents. The Trustee may act as the Paying Agent for purposes of any
Asset Sale Offer.
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(i) The Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this covenant, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
paragraph by virtue thereof.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
-----------------------------------------------------------------
Restricted Subsidiaries.
-----------------------
Parent shall not, and shall not permit any of its Restricted Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or consensual restriction on the ability of any
Restricted Subsidiary to:
(a) pay dividends or make any other distributions to Parent or any of
its Restricted Subsidiaries on its Capital Stock;
(b) pay any Indebtedness owed to Parent or any of its Restricted
Subsidiaries;
(c) make loans or advances to Parent or any of its Restricted
Subsidiaries; or
(d) Transfer any of its properties or assets to Parent or any of its
Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of any
of the following:
(1) Existing Indebtedness, the New Credit Facility and any amendments
or refinancings thereof; provided that such amendments or refinancings are
not materially more restrictive, taken as a whole, with respect to such
encumbrances or restrictions than those contained in such Existing
Indebtedness or the New Credit Facility, as the case may be, on the Issue
Date;
(2) this Indenture, the Second Priority Notes Indenture, the Security
Documents, the Notes, the Second Priority Notes, the Exchange Notes, the
Second Priority Exchange Notes, the Note Guarantees and the Second Priority
Note Guarantees;
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(3) any Additional Pari Passu First Priority Indebtedness, Additional
Pari Passu Second Priority Indebtedness and Additional Pari Passu Third
Priority Indebtedness and any amendments or refinancings thereof; provided
that the encumbrances and restrictions contained in such Indebtedness are
not materially more restrictive, taken as a whole, than those contained in
this Indenture, the Second Priority Notes Indenture or the New Credit
Facility;
(4) applicable law, rule, regulation or order;
(5) any instrument governing Indebtedness or Capital Stock of a Person
acquired by Parent or any of its Restricted Subsidiaries, as in effect at
the time of acquisition (except to the extent such Indebtedness was
incurred in connection with, or in contemplation of, such acquisition),
which encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person, or the assets of
the Person, so acquired; provided that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be incurred;
(6) Purchase Money Obligations and Capital Lease Obligations permitted
to be incurred pursuant to clause (3) of subsection (b) of Section 4.09 for
assets acquired that impose restrictions of the nature described in clause
(d) above of this Section 4.13 on the assets so acquired;
(7) an agreement that has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or assets
of a Restricted Subsidiary; provided that (a) such sale or disposition is
permitted by the terms of this Indenture and (b) such restrictions are
limited to the Restricted Subsidiary that is the subject of such agreement
pending its sale or other disposition;
(8) Liens securing Indebtedness otherwise permitted to be incurred
pursuant to Section 4.11 that (y) limit the right of Parent or any of its
Restricted Subsidiaries to Transfer or dispose of the assets subject to
such Lien or (z) place any restriction on Parent's or such Restricted
Subsidiaries' use of the assets subject to such Lien;
(9) restrictions on cash or other deposits or net worth requirements
imposed by customers under contracts entered into in the ordinary course of
business;
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(10) Permitted Refinancing Indebtedness; provided that the
restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a
whole, than those contained in either (a) the agreements governing the
Indebtedness being refinanced or (b) the New Credit Facility as in effect
on the Issue Date;
(11) Non-Recourse Accounts Receivable Subsidiary Indebtedness or other
contractual requirements of an Accounts Receivable Subsidiary in connection
with a Qualified Receivables Transaction; provided that such restrictions
apply only to such Accounts Receivables Subsidiary or the receivables which
are subject to the Qualified Receivables Transaction;
(12) contractual encumbrances and restrictions in effect on the Issue
Date, and any amendments thereof; provided that such amendments are not
materially more restrictive, taken as a whole, than such existing
contractual encumbrances and restrictions;
(13) protective liens filed in connection with Sale and Leaseback
Transactions permitted under Section 4.15;
(14) customary non-assignment provisions of any contract and customary
provisions restricting assignment or subletting in any lease governing a
leasehold interest of any Restricted Subsidiary;
(15) customary provisions restricting the disposition or distribution
of assets or property to each holder of Capital Stock of a joint venture
contained in any joint venture agreement which restriction is limited to
the assets or property of such joint venture;
(16) restrictions in effect on the Issue Date that are contained in
charter documents or shareholder agreements relating to any Restricted
Subsidiary and any amendments thereof; provided that such amendments are
not materially more restrictive, taken as a whole, with respect to such
restrictions than those contained in such document or agreement as in
effect on the Issue Date; and
(17) Indebtedness of (y) Non-Guarantor Subsidiaries incurred pursuant
to clause (1) or (13) of subsection (b) of Section 4.09 and (z) the Company
or any Guarantor incurred pursuant to Section 4.09; provided that (i) in
the case of subclause (z) above with respect to any Guarantor, such
encumbrance or restriction may exist only for so long as such Guarantor
continues to Guarantee the Notes and (ii) in the case of subclauses (y) and
(z) above, the Board of Directors of Parent shall have determined in good
faith (as evidenced by a resolution of the Board of Directors) at the time
that such encumbrance or restriction is created that such encumbrance or
restriction, as the case may be, will not impair the ability of the Company
to make scheduled payments of interest and principal on the Notes in each
case as and when due.
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SECTION 4.14. Limitation on Transactions with Affiliates.
------------------------------------------
(a) Parent shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into, amend or suffer to exist
any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) with or for the benefit of any Affiliate (each an "Affiliate
Transaction") or extend, renew, waive or otherwise amend or modify the terms of
any Affiliate Transaction entered into prior to the Issue Date unless the terms
of such Affiliate Transaction are fair and reasonable to Parent or such
Restricted Subsidiary, as the case may be, and the terms of such Affiliate
Transaction are at least as favorable as the terms which could be obtained by
Parent or such Restricted Subsidiary, as the case may be, in a comparable
transaction made on an arm's-length basis between unaffiliated parties.
(b) In any Affiliate Transaction (or any series of related Affiliate
Transactions which are similar or part of a common plan) involving an amount or
having a Fair Market Value in excess of $10,000,000, Parent must obtain a board
resolution of a majority of the disinterested members of the Board of Directors
of Parent certifying that such Affiliate Transaction complies with subsection
(a) of this Section 4.14. In any Affiliate Transaction (or any series of related
Affiliate Transactions which are similar or part of a common plan) involving an
amount or having a Fair Market Value in excess of $50,000,000 or as to which
there are no disinterested members of the Board of Directors of Parent, Parent
must obtain a favorable written opinion as to the fairness of such transaction
or transactions, as the case may be, from an Independent Financial Advisor.
(c) The foregoing provisions shall not apply to:
(1) any Affiliate Transaction that is between or among Parent and/or
any one or more of its Restricted Subsidiaries;
(2) any Restricted Payment or Permitted Investment that is not
prohibited by Section 4.10;
(3) reasonable fees, compensation, benefits and incentive arrangements
paid or provided to, and indemnity provided on behalf of, officers,
directors or employees or consultants of Parent or any Restricted
Subsidiary as determined in good faith by Parent's Board of Directors or
senior management;
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(4) any agreement as in effect as of the Issue Date or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) or in any replacement agreement thereto so long as any
such amendment or replacement agreement is not materially more
disadvantageous to the Holders, taken as a whole, than the original
agreement as in effect on the Issue Date;
(5) transactions effected as part of a Qualified Receivables
Transaction;
(6) sales or issuances of Equity Interests (other than Disqualified
Stock) of Parent to Affiliates of Parent;
(7) transactions with a Person that is an Affiliate of Parent solely
because Parent or a Restricted Subsidiary owns an Equity Interest in or
controls such Person;
(8) any transaction undertaken pursuant to the Constar Agreements,
including any amendment thereto or replacement thereof so long as any such
amendment or replacement agreement is not materially more disadvantageous
to the Holders, taken as a whole, than the original Constar Agreement so
amended or replaced; and
(9) the non-recourse accommodation pledge of equity of any
Unrestricted Subsidiary to support the Indebtedness of such Unrestricted
Subsidiary to the extent such pledge is otherwise permitted under this
Indenture and the Security Documents.
SECTION 4.15. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
Parent shall not, and shall not permit any of its Restricted Subsidiaries
to, enter into any Sale and Leaseback Transaction; provided that Parent or any
Restricted Subsidiary may enter into a Sale and Leaseback Transaction if:
(1) Parent or such Restricted Subsidiary could have incurred
Indebtedness in an amount equal to the Attributable Debt relating to such
Sale and Leaseback Transaction pursuant to Section 4.09;
(2) the Lien to secure such Indebtedness does not extend to or cover
any assets of Parent or any of its Restricted Subsidiaries other than the
assets which are the subject of the Sale and Leaseback Transaction;
(3) the gross cash proceeds of such Sale and Leaseback Transaction are
at least equal to the Fair Market Value of the asset that is the subject of
such Sale and Leaseback Transaction; and
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(4) the Transfer of assets in such Sale and Leaseback Transaction is
permitted by, and the proceeds of such transaction are applied in
compliance with, Section 4.12.
SECTION 4.16. Payment of Additional Amounts.
-----------------------------
(a) All payments made by the Company under or with respect to the Notes or
by a Guarantor under or with respect to its Note Guarantee shall be made free
and clear of and without withholding or deduction for or on account of any
present or future tax, duty, levy, impost, assessment or other governmental
charge (including penalties, interest and other liabilities related thereto)
(hereinafter, "Taxes") imposed or levied by or on behalf of the government of
-----
France or any other jurisdiction in which the Company or any Guarantor is
organized or is a resident for tax purposes or within or through which payment
is made or any political subdivision or taxing authority or agency thereof or
therein (any of the aforementioned being a "Taxing Jurisdiction"), unless the
--------------------
Company or such Guarantor is required to withhold or deduct any such Taxes by
law or by the interpretation or administration thereof.
(b) If the Company or any Guarantor is so required to withhold or deduct
any amount for or on account of Taxes from any payment made under or with
respect to the Notes or the Note Guarantee of such Guarantor, the Company or
such Guarantor, as applicable, shall, pay such additional amounts ("Additional
----------
Amounts") as may be necessary so that the net amount received by each Holder of
-------
Notes (including Additional Amounts) after such withholding or deduction of such
Taxes shall not be less than the amount such Holder would have received if such
Taxes had not been required to be withheld or deducted; provided, however, that
notwithstanding the foregoing, Additional Amounts will not be paid with respect
to:
(1) any Taxes that would not have been so imposed, deducted or
withheld but for the existence of any present or former connection between
the Holder or beneficial owner of a Note (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over, the
Holder or beneficial owner of such Note, if the Holder or beneficial owner
is an estate, nominee, trust, partnership or corporation) and the relevant
Taxing Jurisdiction (other than the mere receipt of such payment or the
ownership or holding of or the execution, delivery, registration or
enforcement of such Note);
(2) subject to subsection (f) of this Section 4.16, any estate,
inheritance, gift, sales, excise, transfer or personal property tax or
similar tax, assessment or governmental charge;
(3) any Taxes payable otherwise than by deduction or withholding from
payments under or with respect to such Note;
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(4) any Taxes that would not have been so imposed, deducted or
withheld if the Holder or beneficial owner of the Note or beneficial owner
of any payment on such Note had (i) made a declaration of non-residence, or
any other claim or filing for exemption, to which it is entitled or (ii)
complied with any certification, identification, information, documentation
or other reporting requirement concerning the nationality, residence,
identity or connection with the relevant Taxing Jurisdiction of such Holder
or beneficial owner of such Note or any payment on such Note (provided that
(x) such declaration of non-residence or other claim or filing for
exemption or such compliance is required by the applicable law of the
Taxing Jurisdiction as a precondition to exemption from, or reduction in
the rate of the imposition, deduction or withholding of, such Taxes and (y)
at least 30 days prior to the first payment date with respect to which such
declaration of non-residence or other claim or filing for exemption or such
compliance is required under the applicable law of the Taxing Jurisdiction,
the relevant Holder at that time has been notified by the Company, any
Guarantor or any other Person through whom payment may be made that a
declaration of non-residence or other claim or filing for exemption or such
compliance is required to be made);
(5) any Taxes that would not have been so imposed, deducted or
withheld if the beneficiary of the payment had presented the Note for
payment within 30 days after the date on which such payment or such Note
became due and payable or the date on which payment thereof is duly
provided for, whichever is later (except to the extent that the Holder
would have been entitled to Additional Amounts had the Note been presented
on the last day of such 30-day period);
(6) any payment under or with respect to a Note to any Holder that is
a fiduciary or partnership or any person other than the sole beneficial
owner of such payment or Note, to the extent that a beneficiary or settlor
with respect to such fiduciary, a member of such a partnership or the
beneficial owner of such payment or Note would not have been entitled to
the Additional Amounts had such beneficiary, settlor, member or beneficial
owner been the actual Holder of such Note; or
(7) any combination of items (1) through (6) above.
The foregoing provisions shall survive any termination or discharge of this
Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with
respect to any successor Person to the Company or a Guarantor.
(c) The Company or the applicable Guarantor will also make any applicable
withholding or deduction and remit the full amount deducted or withheld to the
relevant authority in accordance with applicable law. The Company or the
applicable Guarantor will furnish to the Trustee, within 30 days after the date
the payment of any Taxes deducted or withheld is due pursuant to applicable law,
certified copies of tax receipts or, if such tax receipts are not reasonably
available to the Company or such Guarantor, such other documentation that
provides reasonable evidence of such payment by the Company or such Guarantor.
Copies of such receipts or other documentation will be made available to the
Holders or the Paying Agents, as applicable, upon request.
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(d) At least 30 days prior to each date on which any payment under or with
respect to the Notes is due and payable, unless such obligation to pay
Additional Amounts arises after the 30th day prior to such date, in which case
it shall be promptly paid thereafter, if the Company or any Guarantor will be
obligated to pay Additional Amounts with respect to such payment, the Company or
such Guarantor will deliver to the Trustee and the Paying Agents an Officers'
Certificate stating that such Additional Amounts will be payable and the amounts
so payable and will set forth such other information necessary to enable the
Trustee and the Paying Agents to pay such Additional Amounts to Holders of Notes
on the payment date. Each Officers' Certificate shall be relied upon until
receipt of a further Officers' Certificate addressing such matters.
(e) Whenever in this Indenture or the Notes there is mentioned, in any
context, the payment of principal, premium, if any, interest or of any other
amount payable under or with respect to any Note, such mention shall be deemed
to include mention of the payment of Additional Amounts to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof.
(f) The Company and the Guarantors will pay any present or future stamp,
court or documentary taxes or any other excise or property taxes, charges or
similar levies that arise in any jurisdiction from the execution, delivery,
enforcement or registration of the Notes, this Indenture or any other document
or instrument in relation thereto, excluding all such taxes, charges or similar
levies imposed by any jurisdiction outside any jurisdiction in which the Company
or any Guarantor or any successor Person is organized or resident for tax
purposes or any jurisdiction in which a Paying Agent is located, and the Company
and the Guarantors will agree to indemnify the Holders of the Notes for any such
non-excluded taxes paid by such Holders.
SECTION 4.17. Reports to Holders.
------------------
(a) Whether or not required by the rules and regulations of the Commission,
so long as any Notes are outstanding hereunder, the Company shall furnish to the
Trustee and Holders thereof the following:
(1) all quarterly and annual financial information of Parent that
would be required to be contained in a filing with the Commission on Forms
10-Q and 10-K if Parent were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of
operations of Parent and its consolidated subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto and in Management's Discussion and Analysis of Financial
Condition and Results of Operations, the financial condition and results of
operations of Unrestricted Subsidiaries of Parent, if any) and, with
respect to the annual information only, a report thereon by Parent's
certified independent accountants; and
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(2) all current reports that would be required to be filed with the
Commission on Form 8-K if Parent were required to file such reports,
in each case, within the time periods specified in the Commission's rules and
regulations.
(b) In addition, whether or not required by the rules and regulations of
the Commission, Parent shall file a copy of all such information and reports
with the Commission for public availability within the time periods specified in
the Commission's rules and regulations (unless the Commission will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, the Company and the Guarantors
shall, for so long as any Notes remain outstanding, furnish to the Holders of
such Notes and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act. The Company shall comply with the provisions of TIA
ss. 314(a).
SECTION 4.18. Limitation on Creation of Subsidiaries.
--------------------------------------
(a) Parent shall not create, acquire or suffer to exist, and will not
permit any of its Restricted Subsidiaries to create, acquire or suffer to exist,
any Subsidiary other than:
(1) a Restricted Subsidiary existing as of the Issue Date or that is
acquired or created after the Issue Date; provided, however, that each
(A) Domestic Subsidiary of Parent that from time to time is an
obligor under the New Credit Facility or directly or indirectly (by
way of the pledge of any intercompany note or otherwise) Guarantees or
in any other manner becomes liable with respect to any Indebtedness of
the Company, Parent or any other Guarantor (including, without
limitation, Indebtedness under the New Credit Facility), and
(B) Restricted Subsidiary of the Company that directly or
indirectly (by way of the pledge of any intercompany note or
otherwise) Guarantees or in any other manner becomes liable with
respect to any Indebtedness of the Company, Parent or any other
Guarantor (including, without limitation, Indebtedness under the New
Credit Facility) or is otherwise an obligor under the New Credit
Facility (unless, in each case, the incurrence of such Note Guarantee
is prohibited under the laws of its jurisdiction of incorporation (as
evidenced by an Opinion of Counsel reasonably satisfactory to the
Trustee)),
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must execute a Note Guarantee, satisfactory in form and substance to the
Trustee (and with such documentation relating thereto as the Trustee may
require, including, without limitation, a supplement or amendment to this
Indenture and an Opinion of Counsel as to the enforceability of such Note
Guarantee), pursuant to which such Restricted Subsidiary will become a
Guarantor; or
(2) an Unrestricted Subsidiary.
(b) A Note Guarantee of any Guarantor shall be subject to release and
discharge as provided under Article Ten.
SECTION 4.19. Suspension of Certain Covenants in Event of Investment Grade
----------------------------------------------------------------
Rating.
------
During any period of time (the "Suspension Period") that (a) the Notes
------------------
issued under this Indenture have Investment Grade Ratings from both Rating
Agencies and (b) no Default or Event of Default has occurred and is continuing
under this Indenture, Parent and its Restricted Subsidiaries shall not be
subject to the following provisions of this Indenture:
(i) Section 4.08;
(ii) Section 4.09;
(iii) Section 4.10;
(iv) the obligation of the Company to make an Asset Sale Offer
pursuant to Section 4.12(c)(2);
(v) Section 4.13;
(vi) Section 4.14;
(vii) clause (1) of Section 4.15; and
(viii) subclause (a)(4) of Section 5.01
(collectively, the "Suspended Covenants"). In the event that Parent and its
Restricted Subsidiaries are not subject to the Suspended Covenants for any
period of time as a result of the preceding sentence and, subsequently, (i)
either of the Rating Agencies withdraws its rating or downgrades the ratings
assigned to any Notes issued under this Indenture below the required Investment
Grade Ratings
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such that both Rating Agencies at such time shall not have assigned to all Notes
issued under this Indenture an Investment Grade Rating or (ii) a Default or
Event of Default occurs and is continuing, then Parent and its Restricted
Subsidiaries shall thereafter again be subject to the Suspended Covenants and
compliance with the Suspended Covenants with respect to Restricted Payments made
after the time of such withdrawal, downgrade, Default or Event of Default will
be calculated in accordance with the terms of Section 4.10 as though Section
4.10 had been in effect during the entire period of time from the Issue Date;
provided, however, that there will not be deemed to have occurred a Default or
Event of Default with respect to the Suspended Covenants during the Suspension
Period solely as a result of Parent's and its Restricted Subsidiaries'
non-compliance with the Suspended Covenants during such Suspension Period.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Consolidation, Merger and Sale of Assets.
----------------------------------------
(a) None of Parent, Crown or the Company (i) shall consolidate or merge
with or into any other Person or Transfer all or substantially all of the
properties or assets of (x) Parent and its Restricted Subsidiaries, taken as a
whole, in the case of a consolidation, merger or Transfer by Parent, (y) Crown
and its Restricted Subsidiaries, taken as a whole, in the case of a
consolidation, merger or Transfer by Crown, or (z) the Company and its
Restricted Subsidiaries, taken as a whole, in the case of a consolidation,
merger or Transfer by the Company, in each case, to another Person, or (ii)
shall permit any of its Restricted Subsidiaries to, in a single transaction or a
series of a related transactions, Transfer all or substantially all of the
properties or assets of (x) Parent and its Restricted Subsidiaries, taken as a
whole, in the case of a Restricted Subsidiary of Parent, (y) Crown and its
Restricted Subsidiaries, taken as a whole, in the case of a Restricted
Subsidiary of Crown, or (z) the Company and its Restricted Subsidiaries, taken
as a whole, in the case of a Restricted Subsidiary of the Company, in each case,
to another Person unless:
(1) (A) in the case of a merger, consolidation or Transfer
involving Parent, Parent is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
Parent) or to which such Transfer has been made is a corporation
organized or existing under the laws of the United States, any State
thereof or the District of Columbia,
(B) in the case of a merger, consolidation or Transfer involving
the Company, the Company is the surviving corporation or the Person
formed by or surviving any such consolidation or merger (if other than
the Company) or to which such Transfer has been made is a corporation
organized or existing under the laws of a member state of the European
Union (as it exists on the Issue Date), the United States, any State
thereof or the District of Columbia, and
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(C) in the case of a merger, consolidation or Transfer involving
Crown, Crown is the surviving corporation or the Person formed by or
surviving any such consolidation or merger (if other than Crown) or to
which such Transfer has been made is a corporation organized or
existing under the laws of the United States, any State thereof or the
District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger
(if other than Parent, Crown or the Company, as the case may be) or the
Person to which such Transfer has been made assumes all the obligations of
Parent, Crown, the Company or such Restricted Subsidiary under the Notes,
the Note Guarantees, this Indenture, the Registration Rights Agreement and
the Security Documents pursuant to a supplemental indenture or amendment of
the relevant documents, in form reasonably satisfactory to the Trustee;
(3) immediately after such transaction, no Default or Event of Default
exists;
(4) Parent, Crown or the Company, as the case may be, or the Person
formed by or surviving any such consolidation or merger, or to which such
Transfer has been made will, at the time of such transaction after giving
pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in subsection (a) of Section 4.09; and
(5) each of the conditions in subsection (d) of this Section 5.01 is
satisfied.
(b) Notwithstanding the foregoing, none of the following shall be permitted:
(1) the consolidation or merger of Parent with or into or the Transfer
of all or substantially all of the property or assets of Parent and its
Restricted Subsidiaries, taken as a whole, to Crown, other than any such
merger or consolidation or Transfer to a Restricted Subsidiary of Crown;
(2) the Transfer of all or substantially all of the property or assets
of Crown and its Restricted Subsidiaries, taken as a whole, to Crown, other
than any Transfer to a Restricted Subsidiary of Crown; and
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(3) the consolidation or merger of the Company with or into or the
Transfer of all or substantially all of the property or assets of the
Company and its Restricted Subsidiaries, taken as a whole, to Crown, other
than any such consolidation or merger with or into or Transfer to a
Restricted Subsidiary of Crown.
(c) This Section 5.01 shall not prohibit:
(1) a consolidation or merger between the Company and a Guarantor
other than Crown;
(2) a consolidation or merger between a Guarantor and any other
Guarantor other than Crown;
(3) a consolidation or merger between a Restricted Subsidiary (other
than the Company) that is not a Guarantor and any other Restricted
Subsidiary other than Crown;
(4) the Transfer of all or substantially all of the properties or
assets of a Guarantor to the Company and/or any other Guarantor other than
Crown; or
(5) the Transfer of all or substantially all of the properties or
assets of a Restricted Subsidiary (other than the Company) that is not a
Guarantor to any other Restricted Subsidiary;
provided that, in each case involving the Company or a Guarantor, if the Company
or such Guarantor is not the surviving entity of such transaction or the Person
to which such Transfer is made, the surviving entity or the Person to which such
Transfer is made shall comply with subsections (a)(2) and (a)(5) of this Section
5.01.
(d) The following additional conditions shall apply to each transaction
described above in this Section 5.01:
(1) the Company, such Guarantor or the relevant surviving entity, as
applicable, will cause such amendments or other instruments to be filed and
recorded in such jurisdictions as may be required by applicable law to
preserve and protect the Lien of the Security Documents on the Collateral
owned by or Transferred to such Person, together with such financing
statements as may be required to perfect any security interests in such
Collateral which may be perfected by the filing of a financing statement
under the Uniform Commercial Code of the relevant states or other similar
filing under any other applicable law;
(2) the Collateral owned by or Transferred to the Company, such
Guarantor or the relevant surviving entity, as applicable, shall:
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(i) continue to constitute Collateral under the Security
Documents; and
(ii) not be subject to any Lien other than Liens permitted by
this Indenture and the Security Documents;
(3) the assets of the Person which is merged or consolidated with or
into the relevant surviving entity, to the extent required by the terms of
the Security Documents, shall be treated as after acquired property and
such surviving entity shall take such action as may be reasonably necessary
to cause such assets to be made subject to the Lien of the Security
Documents in the manner and to the extent required by the Security
Documents; and
(4) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such transaction
and, if supplemental indentures or supplemental Security Documents are
required in connection with such transaction, such supplemental indentures
and Security Documents comply with the applicable provisions of this
Indenture, that all conditions precedent in this Indenture relating to such
transaction have been satisfied and that such supplemental indentures and
Security Documents are enforceable.
SECTION 5.02. Successor Person Substituted.
----------------------------
Upon any consolidation, combination or merger of Parent, the Company or any
other Guarantor, or any Transfer of all or substantially all of the assets of
Parent or the Company in accordance with the foregoing provisions of Section
5.01, in which Parent, the Company or such Guarantor is not the continuing
obligor under the Notes or its Note Guarantee, the surviving entity formed by
such consolidation or into which Parent, the Company or such Guarantor is merged
or to which the Transfer is made will succeed to, and be substituted for, and
may exercise every right and power of Parent, the Company or such Guarantor, as
the case may be, under this Indenture, the Notes and the Note Guarantees with
the same effect as if such surviving entity had been named therein as Parent,
the Company or such Guarantor, as the case may be, and, except in the case of a
Transfer to Parent or any of its Restricted Subsidiaries, Parent, the Company or
such Guarantor, as the case may be, shall be released from the obligation to pay
the principal of and interest on the Notes or in respect of its Note Guarantee,
as the case may be, and all of Parent's, the Company's or such Guarantor's, as
the case may be, other obligations and covenants under the Notes, this Indenture
and its Note Guarantee, if applicable.
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
Each of the following constitutes an "Event of Default" with respect to the
----------------
Notes:
(1) default for 30 days in the payment when due of interest with
respect to the Notes;
(2) default in payment when due of principal or premium, if any, on
the Notes at maturity, upon redemption or otherwise;
(3) failure by Parent or any Restricted Subsidiary to comply with any
of the provisions under Section 4.08, Section 4.12 or Article Five;
(4) failure by Parent or any Restricted Subsidiary for 60 days after
receipt of notice from the Trustee or the Holders of at least 25% in
principal amount of the Notes then outstanding under this Indenture to
comply with any covenant or agreement contained in this Indenture (other
than the covenants and agreements specified in clauses (1) through (3) of
this Section 6.01);
(5) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness of Parent or any of its Restricted Subsidiaries (or the
payment of which is Guaranteed by Parent or any of its Restricted
Subsidiaries), whether such Indebtedness or Guarantee now exists or is
created after the Issue Date, but (for so long as the Proceeds Sharing
Agreement shall be in effect) excluding any Indebtedness which is Covered
Debt under the Proceeds Sharing Agreement, which default (a) is caused by a
failure to pay when due at final stated maturity (giving effect to any
grace period related thereto) principal of such Indebtedness (a "Payment
-------
Default") or (b) results in the acceleration of such Indebtedness prior to
-------
its stated maturity, and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any such Indebtedness
under which there has been a Payment Default or the maturity of which has
been so accelerated, aggregates $50,000,000 or more;
(6) failure by Parent or any of its Restricted Subsidiaries to pay
final judgments (net of any amounts covered by insurance and as to which
such insurer has not denied responsibility or coverage in writing)
aggregating $50,000,000 or more, which judgments are not paid, discharged,
bonded or stayed within 60 days after their entry;
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(7) (A) a court having jurisdiction over Parent, the Company or any
other Restricted Subsidiary of Parent enters (x) a decree or order for
relief in respect of Parent, the Company or any Restricted Subsidiary of
Parent that is a Significant Subsidiary or group of Restricted Subsidiaries
of Parent that, taken together, would constitute a Significant Subsidiary
in an involuntary case or proceeding under any Bankruptcy Law or (y) a
decree or order adjudging Parent, the Company or any Restricted Subsidiary
of Parent that is a Significant Subsidiary or group of Restricted
Subsidiaries of Parent that, taken together, would constitute a Significant
Subsidiary as bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of Parent, the Company or any such Restricted Subsidiary or
group of Restricted Subsidiaries under any Bankruptcy Law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of Parent, the Company or any such Restricted Subsidiary
or group of Restricted Subsidiaries or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive days or (B)
Parent, the Company or any Restricted Subsidiary of Parent that is a
Significant Subsidiary or group of Restricted Subsidiaries of Parent that,
taken together, would constitute a Significant Subsidiary (i) commences a
voluntary case under any Bankruptcy Law or consents to the entry of an
order for relief in an involuntary case under any Bankruptcy Law, (ii)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official
of Parent, the Company or any such Restricted Subsidiary or group of
Restricted Subsidiaries or for all or substantially all the property and
assets of Parent, the Company or any such Restricted Subsidiary or group of
Restricted Subsidiaries, (iii) effects any general assignment for the
benefit of creditors or (iv) generally is not paying its debts as they
become due;
(8) any Note Guarantee of any Guarantor ceases to be in full force and
effect (other than in accordance with the terms of such Note Guarantee and
the related Indenture) or is declared null and void and unenforceable or
found to be invalid or any Guarantor denies its liability under its Note
Guarantee (other than by reason of release of a Guarantor from its Note
Guarantee in accordance with the terms of this Indenture and such Note
Guarantee);
(9) any default by the Company or any Guarantor in the performance of
its obligations under the Security Documents (after the lapse of any
applicable grace periods) or this Indenture which adversely affects the
enforceability, validity, perfection or priority of the Trustee's Lien on
the Collateral or which adversely affects the condition or value of the
Collateral, taken as a whole, in any material respect, repudiation or
disaffirmation by the Company or any Guarantor of its obligations under the
Security Documents or the determination in a judicial proceeding that the
Security Documents are unenforceable or invalid against the Company or any
Guarantor for any reason; and
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(10) the occurrence of a Triggering Event with respect to any Covered
Debt under the Proceeds Sharing Agreement and the continuance of the
event(s) or circumstance(s) giving rise to such Triggering Event until the
earlier of (y) the 60th day following the occurrence of such Triggering
Event and (z) the date of the acceleration of all of Parent's and its
Restricted Subsidiaries' obligations in respect of Indebtedness under the
New Credit Facility.
SECTION 6.02. Acceleration of Maturity; Rescission.
------------------------------------
If an Event of Default occurs and is continuing under this Indenture,
either the Trustee, by notice in writing to the Company, or the Holders of at
least (y) 25% in aggregate principal amount of the Notes then outstanding in the
case of any Event of Default arising under any of clauses (1) through (9) of
Section 6.01 and (z) a majority in principal amount of the Notes then
outstanding in the case of any Event of Default arising under clause (10) of
Section 6.01 may, in each case, by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration", and the Trustee at the request of such Holders shall, declare the
principal of and premium, if any, and accrued interest, if any, on the Notes to
be immediately due and payable, and upon such declaration of acceleration, such
principal, premium, if any, and accrued interest, if any, shall be immediately
due and payable; provided, however, that, notwithstanding the foregoing, if an
Event of Default specified in 6.01(7) occurs with respect to Parent or the
Company, the principal of and premium, if any, and accrued interest, if any, on
the Notes then outstanding shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
Notwithstanding the foregoing, if after such acceleration but before a
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of outstanding Notes may
rescind and annul such acceleration if:
(1) all Events of Default, other than nonpayment of principal,
premium, if any, or interest that has become due solely because of the
acceleration, have been cured or waived;
(2) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid;
(3) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and
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(4) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.01(7), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default
has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of, or premium, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture and may take any
necessary action requested of it as Trustee to settle, compromise, adjust or
otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or omission
by the Trustee or any Noteholder in exercising any right or remedy accruing upon
an Event of Default shall not impair the right or remedy or constitute a waiver
of or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative. Any costs associated with actions
taken by the Trustee under this Section 6.03 shall be reimbursed to the Trustee
by the Company and the Guarantors.
SECTION 6.04. Waiver of Existing Defaults and Events of Default.
-------------------------------------------------
(a) Subject to Sections 2.10, 6.02, 6.08 and 8.02, the Holders of a
majority in principal amount of the Notes then outstanding shall have the right
to waive past Defaults under this Indenture except a Default in the payment of
the principal of, or interest or premium, if any, on any Note as specified in
clauses (1) and (2) of Section 6.01 or in respect of a covenant or a provision
which cannot be modified or amended without the consent of all Holders as
provided for in Section 8.02. The Company shall deliver to the Trustee an
Officers' Certificate stating that the requisite percentage of Holders have
consented to such waiver and attaching copies of such consents. In case of any
such waiver, the Company, the Trustee and the Holders shall be restored to their
former positions and rights hereunder and under the Notes, respectively. This
subsection (a) of this Section 6.04 shall be in lieu of TIA ss. 316(a)(1)(B),
and TIA ss. 316(a)(1)(B) is hereby expressly excluded from this Indenture and
the Notes, as permitted by the TIA.
(b) Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereto.
-97-
SECTION 6.05. Control by Majority.
-------------------
Subject to Section 2.10, the Holders of a majority in principal amount of
the outstanding Notes have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee by this Indenture. The
Trustee, however, may refuse to follow any direction that conflicts with law or
this Indenture or that the Trustee determines may be unduly prejudicial to the
rights of another Holder not taking part in such direction, and the Trustee
shall have the right to decline to follow any such direction if the Trustee,
being advised by counsel, determines that the action so directed may not
lawfully be taken or if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed may involve it in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction. In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification reasonably satisfactory to it
against any loss or expense caused by taking such action or following such
direction. This Section 6.05 shall be in lieu of TIA ss. 316(a)(1)(A), and TIA
ss. 316(a)(1)(A) is hereby expressly excluded from this Indenture and the Notes,
as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
-------------------
Subject to Section 6.08, a Holder may not pursue any remedy with respect to
this Indenture or the Notes unless:
(1) the Holder has given the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least (y) 25% in principal amount of the Notes
then outstanding, in the case of any Event of Default specified in Sections
6.01(1) through (9) inclusive, and (z) a majority in principal amount of
the Notes then outstanding in the case of any Event of Default specified in
Section 6.01(10), make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory to
the Trustee against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Notes do not give the Trustee a
direction that is inconsistent with the request.
-98-
A Noteholder may not use any provision of this Indenture to
disturb or prejudice the rights of another Noteholder or to obtain a preference
or priority over another Noteholder.
SECTION 6.07. No Personal Liability of Directors, Officers, Employees
--------------------------------------------------------------
and Stockholders.
----------------
No director, officer, employee, incorporator or stockholder of Parent or of
any Restricted Subsidiary, as such, shall have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note
Guarantees, the Security Documents or for any claim based on, in respect of, or
by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability.
SECTION 6.08. Rights of Holders To Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of the principal of or premium, if any, or
interest, if any, on such Note on or after the respective due dates expressed in
such Note, or to bring suit for the enforcement of any such payment, on or after
such respective due dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 6.09. Collection Suit by Trustee.
--------------------------
If an Event of Default occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any Guarantor (or any other obligor on the Notes) for the whole amount of
unpaid principal and accrued interest remaining unpaid, together with interest
on overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate set forth
in the Notes, and such further amounts as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.10. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07) and the Noteholders allowed in any judicial
proceedings relative to the Company or any Guarantor (or any other obligor upon
the Notes), its creditors or its property and shall be entitled and empowered to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same after deduction of its charges and
expenses to the extent that any such charges and expenses are not paid out of
the estate in any such proceedings and any custodian in any such judicial
proceeding is hereby authorized by each Noteholder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Noteholders, to pay to the Trustee any amount due to it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
or reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Noteholder thereof, or to authorize the Trustee to vote in
respect of the claim of any Noteholder in any such proceedings.
SECTION 6.11. Priorities.
----------
If the Trustee collects any money pursuant to this Article Six, it shall
pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Noteholders for amounts due and unpaid on the Notes for
principal, premium, if any, and interest (including Liquidated Damages, if any),
and Additional Amounts, if any, as to each, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes; and
THIRD: to the Company or, to the extent the Trustee collects any amount
from any Guarantor, to such Guarantor.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.11.
SECTION 6.12. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this Indenture
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.12 does not apply to a suit by the Trustee, a suit by a Noteholder
pursuant to Section 6.08 or a suit by Noteholders of more than 10% in principal
amount of the Notes then outstanding.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default or Event of Default actually known to a Responsible
Officer of the Trustee has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the same circumstances in the conduct of his or her own
affairs.
The Trustee shall not be deemed to have notice of any Default or Event of
Default unless Responsible Officer of the Trustee has actual knowledge thereof
or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Notes and this Indenture.
(b) Except during the continuance of a Default or Event of Default:
(1) The Trustee need perform only those duties that are specifically
set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture or the
Security Documents but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform on their face to the requirements of
this Indenture or the Security Documents (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein). Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate,
subject to the requirement in the preceding sentence, if applicable.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) This paragraph does not limit the effect of subsection (b) of this
Section 7.01.
-101-
(2) The Trustee shall not be liable for any error of judgment made in
good faith, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to the terms of this Indenture or the Security
Documents.
(4) No provision of this Indenture or the Security Documents shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its rights, powers or
duties if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, subsections (a), (b), (c)
and (e) of this Section 7.01 shall govern every provision of this Indenture and
the Security Documents that in any way relates to the Trustee.
(e) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture or the Security Documents at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company or any Guarantor.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by the law.
(g) To the extent any provision of the Security Documents conflicts with or
is silent with respect to the matters set forth in this Article Seven, this
Article Seven shall be controlling.
SECTION 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01:
(1) The Trustee may conclusively rely on any document (whether in its
original or facsimile form) reasonably believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
-102-
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to the provisions of Section 12.05. The Trustee shall be protected
and shall not be liable for any action it takes or omits to take in good
faith in reliance on such certificate or opinion.
(3) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed by
it with due care.
(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute negligence or willful misconduct.
(5) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(6) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other person employed
to act hereunder.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may make loans to, accept deposits from, perform services
for or otherwise deal with the either of the Company or any Guarantor, or any
Affiliates thereof, with the same rights it would have if it were not Trustee.
However, in the event that the Trustee acquires any conflicting interest, it
must eliminate such conflict within 90 days, apply to the Commission for
permission to continue as Trustee or resign. Any Agent may do the same with like
rights. The Trustee shall also be subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Notes or any Note Guarantee,
it shall not be accountable for the Company's or any Guarantor's use of the
proceeds from the sale of Notes or any money paid to the Company or any
Guarantor pursuant to the terms of this Indenture and it shall not be
responsible for any statement in the Notes, the Note Guarantees or this
Indenture other than its certificate of authentication.
-103-
SECTION 7.05. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall give to each Noteholder a notice of the
Default or Event of Default within 30 days after it occurs in the manner and to
the extent provided in the TIA and otherwise as provided in this Indenture.
Except in the case of a Default or Event of Default relating to the payment of
the principal of or interest on any Note (including payments pursuant to a
redemption or repurchase of the Notes pursuant to the provisions of this
Indenture) or relating to Article Five of this Indenture, the Trustee may
withhold the notice if and so long as a Responsible Officer in good faith
determines that withholding the notice is in the interests of Holders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA ss. 313(a), within 60 days after March 1 of any year,
commencing on the March 1 following the date of this Indenture, the Trustee
shall mail to each Noteholder a brief report dated as of such date that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)(2). The
Trustee shall also transmit by mail all reports as required by TIA ss. 313(c)
and TIA ss. 313(d).
Reports pursuant to this Section 7.06 shall be transmitted by mail:
(1) to all Holders of Notes, as the names and addresses of such
Holders appear on the Registrar's books; and
(2) to such Holders of Notes as have, within the two years preceding
such transmission, filed their names and addresses with the Trustee for
that purpose.
A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange on which the Notes are listed. The
Company shall promptly notify the Trustee, in writing, when the Notes are listed
on any stock exchange or delisted therefrom.
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company and the Guarantors shall pay to the Trustee from time to time
reasonable compensation for their services hereunder and under the Security
Documents (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust). The Company and
the Guarantors shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by them in connection with
the Trustee's duties under this Indenture and under the Security Documents,
including the reasonable compensation, disbursements and expenses of the
Trustee's agents and external counsel, except any expense disbursement or
advance as may be attributable to its negligence or bad faith.
-104-
The Company and the Guarantors, jointly and severally, shall indemnify each
of the Trustee and its agents, employees, stockholders, directors and officers
and any predecessor Trustee for, and hold each of them harmless against, any and
all loss, damage, claim, liability or expense, including without limitation
taxes (other than taxes based on the income of the Trustee) and reasonable
attorneys' fees and expenses incurred by each of them in connection with the
acceptance or performance of its duties under this Indenture and under the
Security Documents including the reasonable costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder (including, without
limitation, settlement costs). The Trustee shall notify the Company and the
Guarantors in writing promptly of any claim of which a Responsible Officer of
the Trustee has actual knowledge asserted against the Trustee for which it may
seek indemnity; provided that the failure by the Trustee to so notify the
Company and the Guarantors shall not relieve the Company and Guarantors of their
obligations hereunder except to the extent the Company and the Guarantors are
actually prejudiced thereby. In the event that a conflict of interest exists,
the Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel.
Notwithstanding the foregoing, the Company and the Guarantors need not
reimburse the Trustee for any expense or indemnify it against any loss or
liability to have been incurred by the Trustee through its own negligence, bad
faith or willful misconduct.
To secure the payment obligations of the Company and the Guarantors in this
Section 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee except for such money or property held
in trust to pay principal of and interest on particular Notes. Such lien shall
survive the satisfaction and discharge of this Indenture.
The obligations of the Company and the Guarantors under this Section 7.07
to compensate and indemnify the Trustee and each predecessor Trustee and to pay
or reimburse the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall be joint and several liabilities of the Company
and each of the Guarantors and shall survive the resignation or removal of the
Trustee and the satisfaction, discharge or other termination of this Indenture,
including any termination or rejection hereof under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (7) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any
applicable Bankruptcy Law.
-105-
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to this Article Seven. The provisions of
this Section 7.07 shall apply to Trustee in its capacity as Paying Agent,
Registrar and any other Agent under this Indenture.
SECTION 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company and the Guarantors in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by notifying the Company and the removed Trustee in
writing and may appoint a successor Trustee with the Company's written consent,
which consent shall not be unreasonably withheld. The Company may remove the
Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the outstanding Notes may petition
at the expense of the Company any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately following such delivery,
the retiring Trustee shall, subject to its rights under Section 7.07, transfer
all property held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder. Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
-106-
SECTION 7.09. Successor Trustee by Consolidation, Merger, etc.
-----------------------------------------------
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation,
subject to Section 7.10, the successor corporation without any further act shall
be the successor Trustee; provided that such entity shall be otherwise qualified
and eligible under this Article Seven.
SECTION 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements
of TIA ss. 310(a)(1) and (2) in every respect. The Trustee shall have a combined
capital and surplus of at least $100,000,000 as set forth in the most recent
applicable published annual report of condition. The Trustee shall comply with
TIA ss. 310(b); provided, however, that there shall be excluded from the
operation of TIA ss. 310(b)(1) any indenture or indentures under which other
securities or certificates of interest or participation in other securities of
the Company are outstanding if the requirements for such exclusion set forth in
TIA ss. 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to and shall comply with TIA ss. 311(a), excluding
any creditor relationship listed in TIA ss. 311 (b). A Trustee who has resigned
or been removed shall be subject to TIA ss. 311(a) to the extent indicated
therein.
SECTION 7.12. Paying Agents.
-------------
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to it and the Trustee an instrument in which such Paying Agent shall
agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the payment of
principal of, or premium, if any, or interest on, the Notes (whether such
sums have been paid to it by the Company or by any obligor on the Notes) in
trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event
of Default, upon written request from the Trustee, deliver to the
Trustee all sums so held in trust by it together with a full
accounting thereof; and
(C) that it will give the Trustee written notice within three
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium,
if any, or interest on, the Notes when the same shall be due and
payable.
-107-
ARTICLE EIGHT
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 8.01. Without Consent of Noteholders.
------------------------------
Notwithstanding Section 8.02, the Company and Trustee may modify and amend
this Indenture, the Notes, the Note Guarantees or any Security Document without
the consent of any Holder for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in
place of Physical Notes;
(3) to provide for the assumption of the Company's or any Guarantor's
obligations to the Holders in the case of a merger or consolidation or sale
of all or substantially all of the Company's or such Guarantor's assets;
(4) to add any additional assets as Collateral or to release
Collateral as permitted under the terms of this Indenture and the Security
Documents;
(5) to add any Guarantor or release any Guarantor from its Note
Guarantee if such release is in accordance with the terms of this
Indenture;
(6) to confirm and evidence the release, termination or discharge of
any Collateral or any Guarantor and Note Guarantee when such release,
termination or discharge is permitted elsewhere in this Indenture;
(7) to add to the covenants of the Company and the Guarantors for the
benefit of the Holders of the Notes or to surrender any right or power
conferred upon the Company and the Guarantors;
(8) to provide for or confirm the issuance of Exchange Notes and
Additional Notes;
(9) to make any change that would provide any additional rights or
benefits to the Holders or that does not adversely affect the rights under
this Indenture of any Holder in any material respect; or
(10) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA.
-108-
SECTION 8.02. With Consent of Noteholders.
---------------------------
(a) Except to the extent provided in Section 8.01 and subsections (b) and
(c) and this Section 8.02, this Indenture, the Notes, the Note Guarantees or any
provision of any Security Document (except as provided therein) or the Proceeds
Sharing Agreement (except as provided therein) affecting the Holders may be
amended with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, tender
offer or exchange offer for Notes), and any existing Default or compliance with
any provision of this Indenture, the Notes, the Note Guarantees or any provision
of the Security Documents or the Proceeds Sharing Agreement affecting the
Holders may be waived with the consent of the Holders of a majority in principal
amount of the then outstanding Notes voting as a single class (including,
without limitation, consents obtained in connection with a purchase of, tender
offer or exchange offer for Notes).
(b) Notwithstanding subsection (a) of this Section 8.02, except as provided
in subsection (c) of this Section 8.02, without the consent of each Holder of
Notes issued under this Indenture affected thereby, an amendment or waiver may
not (with respect to any Note held by a non-consenting Holder):
(1) reduce the principal amount of Notes issued under this Indenture
whose Holders must consent to an amendment, supplement or waiver or make
any change to this Section 8.02(b);
(2) reduce the principal amount of or change the Maturity Date of any
Notes, or alter the provisions with respect to the redemption of any such
Notes other than, except as set forth in clause (7) below, the provisions
of Section 4.08 or 4.12 of this Indenture;
(3) reduce the rate of or change the time for payment of interest on
any such Notes;
(4) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on any such Notes (except a rescission of
acceleration of Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration) in accordance with the
provisions of Article Six;
(5) make any such Note payable in currency other than that stated in
such Note;
(6) make any change to the provisions of this Indenture relating to
the waiver of past Defaults or the rights of Holders of the Notes issued
hereunder to receive payments of principal of, and interest and Additional
Amounts, if any, on the Notes or otherwise impair the right to institute
suit for the enforcement of any payment on or with respect to the Notes,
the Note Guarantees or the Security Documents;
-109-
(7) after the Company's obligation to purchase Notes arises hereunder,
amend, change or modify in any material respect the obligation of the
Company to make and consummate a Change of Control Offer with respect to a
Change of Control that has occurred or make and consummate an Asset Sale
Offer with respect to any Asset Sale that has been consummated, including,
without limitation, in each case, by amending, changing or modifying any of
the definitions relating thereto;
(8) release Parent, Crown or any other Guarantor that is a Significant
Subsidiary from any of its obligations under its Note Guarantee or this
Indenture otherwise than in accordance with the terms of this Indenture; or
(9) modify or change any provision of this Indenture affecting the
ranking of the Notes or Note Guarantees in a manner adverse to the Holders
of Notes.
(c) Notwithstanding the foregoing, (i) in addition to the release of
Collateral expressly permitted by this Indenture and the Security Documents,
Collateral may be released under this Indenture and the Security Documents with
the consent of the Holders of at least 66 2/3% in aggregate principal amount of
the Notes then outstanding and (ii) if both (a) a Default or Event of Default
shall have occurred and be continuing with respect to the Notes and (b) there
shall have been commenced and be continuing with respect to the Company either
(x) an amicable settlement (reglement amiable) proceeding under Article L611-3
of the French Commercial Code, (y) an ad hoc mandate (Mandat Ad Hoc) or (z) a
bankruptcy proceeding (Redressement Judiciaire) under Article L620-1 et seq. of
the French Commercial Code, then, subject to applicable United States securities
laws including, without limitation, the TIA, the provisions of this Indenture
and all of the Notes and Note Guarantees described in clauses (1) through (9) of
Section 8.02(b) may be amended and/or all or any portion of such Notes may be
exchanged for other securities of the Company, in each case, with the consent of
the Holders of at least 66 2/3% in aggregate principal amount of the Notes then
outstanding; provided that each such amendment, waiver or exchange, as the case
may be, shall apply equally to all Notes issued under this Indenture unless
otherwise consented to by the Holder of each Note to which such amendment,
waiver or exchange shall not so apply.
(d) It shall not be necessary for the consent of the Holders under this
Section 8.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
(e) After an amendment, supplement or waiver under Section 8.01 or this
Section 8.02 becomes effective, the Company shall mail to the Holders a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such amendment, supplement or waiver.
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SECTION 8.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture, the Notes or the Note
Guarantees shall comply with the TIA as then in effect.
SECTION 8.04. Revocation and Effect of Consents.
---------------------------------
(a) After an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note.
(b) The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then, notwithstanding the
preceding paragraph, those Persons who were Noteholders at such record date (or
their duly designated proxies), and only such Persons, shall be entitled to
consent to such amendment, supplement, or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Noteholders after
such record date. No such consent shall be valid or effective for more than 90
days after such record date unless the consent of the requisite number of
Noteholders has been obtained.
(c) After an amendment, supplement, waiver or other action under Section
8.01 or this Section 8.02 becomes effective, it shall bind every Noteholder,
unless it makes a change described in any of clauses (1) through (9) of Section
8.02(b) (and that is not subject to Section 8.02(c)). In that case the
amendment, supplement, waiver or other action shall bind each Noteholder who has
consented to it and every subsequent Noteholder or portion of a Note that
evidences the same debt as the consenting Holder's Note.
SECTION 8.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement, or waiver changes the terms of a Note, the
Trustee (in accordance with the specific written direction of the Company) shall
request the Holder of the Note (in accordance with the specific written
direction of the Company) to deliver it to the Trustee. In such case, the
Trustee shall place an appropriate notation on the Note about the changed terms
and return it to the Noteholder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue, the Guarantors
shall endorse, and the Trustee shall authenticate a new Note that reflects the
changed terms. Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
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SECTION 8.06. Trustee To Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article Eight if the amendment, supplement or waiver does not
affect the rights, duties, liabilities or immunities of the Trustee. If it does
affect the rights, duties, liabilities or immunities of the Trustee, the Trustee
may, but need not, sign such amendment, supplement or waiver. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01, shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel stating, in
addition to the matters required by Section 12.04, that such amendment,
supplement or waiver is authorized or permitted by this Indenture and is a
legal, valid and binding obligation of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms
(subject to customary exceptions).
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01. Discharge of Indenture.
----------------------
This Indenture will be discharged and will cease to be of further effect as
to all Notes and Note Guarantees, and the Trustee, at the expense of the
Company, will execute proper instruments acknowledging satisfaction and
discharge of this Indenture, the Notes and the Note Guarantees, when either:
(1) the Company delivers to the Trustee all outstanding Notes issued
under this Indenture (other than (i) Notes which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 2.08
hereof and (ii) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust) for
cancellation; or
(2) (a) all Notes outstanding under this Indenture have become due and
payable, whether at maturity or as a result of the mailing of a notice of
redemption, or will become due and payable within one year, and the Company
or any Guarantor irrevocably deposits with the Trustee as trust funds in
trust solely for the benefit of the Holders, cash in U.S. Dollars, U.S.
Government Obligations or a combination thereof in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest
on the Notes outstanding under this Indenture on the maturity date or on
the applicable optional redemption date, as the case may be;
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(b) no Default or Event of Default shall have occurred and be continuing on the
date of such deposit or shall occur as a result of such deposit and such deposit
shall not result in a breach or violation of, or constitute a default under, any
other instrument to which the Company or any Guarantor is a party or by which
the Company or any Guarantor is bound; (c) the Company or any Guarantor has paid
or caused to be paid all sums payable by the Company or any Guarantor under this
Indenture; and (d) the Company has delivered (I) irrevocable instructions to the
Trustee under this Indenture to apply the deposited money toward the payment of
the Notes at maturity or the redemption date, as the case may be, and (II) an
Officers' Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with and that such satisfaction and discharge does
not result in a default under any agreement or instrument then known to such
counsel which binds or affects the Company.
The Trustee shall acknowledge satisfaction and discharge of this Indenture on
demand of the Company.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company in Article Two and in Sections 4.01, 4.02, 7.07, 9.05
and 9.06 shall survive such satisfaction and discharge.
SECTION 9.02. Legal Defeasance.
----------------
The Company may, at its option and at any time, elect to have its
obligations and the obligations of the Guarantors discharged with respect to the
outstanding Notes on a date the conditions set forth in Section 9.04 are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
-----------------
Defeasance means that the Company will be deemed to have paid and discharged the
entire indebtedness represented by the outstanding Notes and to have satisfied
all its other obligations under such Notes and this Indenture insofar as such
Notes are concerned (and the Trustee, at the expense of the Company, shall,
subject to Section 9.06, execute instruments in form and substance reasonably
satisfactory to the Trustee and Company acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (1) the rights of Holders of outstanding Notes to receive solely from
the trust funds described in Section 9.04 and as more fully set forth in Section
9.04, payments in respect of the principal of, premium, if any, and interest on
such Notes when such payments are due, (2) the Company's obligations with
respect to such Notes under Article Two and Sections 4.02, 4.03 and 4.05, (3)
the rights, powers, trusts, duties, and immunities of the Trustee hereunder
(including claims of, or payments to, the Trustee under or pursuant to Section
7.07) and the Company's obligations in connection therewith and (4) this Article
Nine.
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Concurrently with any Legal Defeasance, the Company may, at its further
option, cause to be terminated, as of the date on which such Legal Defeasance
occurs, all of the obligations under any or all of the Note Guarantees, if any,
then existing and obtain the release of the Note Guarantees of any or all
Guarantors. In order to exercise such option regarding a Note Guarantee, the
Company shall provide the Trustee with written notice of its desire to terminate
such Note Guarantee prior to the delivery of the Opinions of Counsel referred to
in Section 9.04.
Subject to compliance with this Article Nine, the Company may exercise its
option under this Section 9.02 with respect to the Notes notwithstanding the
prior exercise of its option under Section 9.03 below with respect to the Notes.
SECTION 9.03. Covenant Defeasance.
-------------------
The Company may, at its option and at any time, elect to have its
obligations and the obligations of the Guarantors under Sections 4.08, 4.09
(other than subsection (d) of Section 4.09), 4.10, 4.11, 4.12, 4.13, 4.14, 4.15,
4.17 and 4.18 (except for obligations mandated by the TIA) and clauses (3) and
(4) of Section 5.01(a) released with respect to the outstanding Notes on a date
the conditions set forth in Section 9.04 are satisfied (hereinafter, "Covenant
Defeasance"). For this purpose, Covenant Defeasance means that, with respect to
the outstanding Notes, the Company may fail to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01,
but, except as specified above, the remainder of this Indenture, the Notes and
the Note Guarantees shall be unaffected thereby. In addition, upon the Company's
exercise of the option in this Section 9.03, subject to the satisfaction of the
conditions set forth in Section 9.04, Sections 6.01(3), (4), (5) and (6) shall
not constitute Events of Default.
Notwithstanding any discharge or release of any obligations under this
Indenture pursuant to Section 9.02 or this Section 9.03, the Company's
obligations in Article Two and Sections 7.07, 9.05, 9.06, 9.07 and 9.08 shall
survive until such time as the Notes have been paid in full. Thereafter, the
Company's obligations in Sections 7.07, 9.05, 9.07 and 9.08 shall survive.
SECTION 9.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 9.02 or
Section 9.03 to the outstanding Notes:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes issued under this Indenture,
cash in U.S. Dollars, U.S. Government Obligations or a combination thereof
in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to pay the principal,
premium, if any, and interest on the Notes outstanding under this Indenture
on the stated maturity date or on the applicable optional redemption date,
as the case may be, and the Company must specify whether such Notes are
being defeased to maturity or to a particular redemption date;
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(2) in the case of Legal Defeasance, the Company shall have delivered
to the Trustee an Opinion of Counsel in the United States reasonably
acceptable to the Trustee confirming that (a) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or (b) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the Notes outstanding under this Indenture will not recognize income, gain
or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have
delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
Notes outstanding under this Indenture will not recognize income, gain or
loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(4) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than this Indenture) to which Parent or any
of its Restricted Subsidiaries is a party or by which Parent or any of its
Restricted Subsidiaries is bound;
(6) the Company must have delivered to the Trustee an Opinion of
Counsel reasonably acceptable to such Trustee to the effect that assuming
no intervening bankruptcy of the Company or any Guarantor between the date
of deposit and the 91st day following the deposit and assuming that no
Holder is an "insider" of the Company under applicable Bankruptcy Law,
after the 91st day following the deposit, the trust funds will not be
subject to the effect of applicable Bankruptcy Law;
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(7) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes issued under this Indenture over the other
creditors of the Company with the intent of defeating, hindering, delaying
or defrauding creditors of the Company or others; and
(8) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel reasonably acceptable to the Trustee, each
stating that all conditions precedent provided for relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
SECTION 9.05. Deposited Money and U.S. Government Obligations To Be Held in
-----------------------------------------------------------------
Trust.
-----
All money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 9.04 in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agents, to the Holders of such Notes, of
all sums due and to become due thereon in respect of principal, premium, if any,
and accrued interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company and the Guarantors shall (on a joint and several basis) pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
9.04 or the principal, premium, if any, and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article Nine to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon a request of the
Company any money or U.S. Government Obligations held by it as provided in
Section 9.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.06. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 by reason
of any legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and each Guarantor's obligations under this
Indenture, the Notes and the Note Guarantees shall be revived and reinstated as
though no deposit had occurred pursuant to this Article Nine until such time as
the Trustee or such Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 9.01; provided that if the
Company or the Guarantors have made any payment of principal of, premium, if
any, or accrued interest on any Notes because of the reinstatement of their
obligations, the Company or the Guarantors, as the case may be, shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or U.S. Government Obligations held by the Trustee or any Paying
Agent.
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SECTION 9.07. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture, all
moneys and U.S. Government Obligations then held by any Paying Agent under the
provisions of this Indenture shall, upon written demand of the Company, be paid
or delivered to the Trustee, or if sufficient moneys and U.S. Government
Obligations have been deposited pursuant to Section 9.04, to the Company upon a
request of the Company (or, if such moneys and U.S. Government Obligations had
been deposited by the Guarantors, to such Guarantors), and thereupon such Paying
Agent shall be released from all further liability with respect to such moneys.
SECTION 9.08. Moneys Held by Trustee.
----------------------
Any moneys and U.S. Government Obligations deposited with the Trustee or
any Paying Agent or then held by the Company or the Guarantors in trust for the
payment of the principal of, or premium, if any, or interest on any Note that
are not applied but remain unclaimed by the Holder of such Note for two years
after the date upon which the principal of, or premium, if any, or interest on
such Note shall have respectively become due and payable shall be repaid or
returned to the Company (or, if appropriate, the Guarantors) upon a request of
the Company, or if such moneys and U.S. Government Obligations are then held by
the Company or the Guarantors in trust, such moneys and U.S. Government
Obligations shall be released from such trust; and the Holder of such Note
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company and the Guarantors for the payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
moneys and U.S. Government Obligations shall thereupon cease; provided that the
Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company and the Guarantors, either mail to
each Noteholder affected, at the address shown in the register of the Notes
maintained by the Registrar pursuant to Section 2.06, or cause to be published
once a week for two successive weeks, in one newspaper published in the English
language, customarily published each Business Day and of general circulation in
The City of New York, the State of New York, a notice that such moneys and U.S.
Government Obligations remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing or
publication, any unclaimed balance of such moneys and U.S. Government
Obligations then remaining will be repaid or returned to the Company. After
payment or return to the Company or the Guarantors or the release of any moneys
and U.S. Government Obligations held in trust by the Company or any Guarantors,
as the case may be, Holders entitled thereto must look only to the Company and
the Guarantors for payment as general creditors unless applicable abandoned
property law designates another Person.
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ARTICLE TEN
GUARANTEE OF SECURITIES
SECTION 10.01. Guarantee.
---------
The Guarantors, by execution of this Indenture, jointly and severally,
guarantee to each Holder (i) the due and punctual payment of the principal of,
premium, if any, and interest on each Note, when and as the same shall become
due and payable, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal of and interest on the
Notes, to the extent lawful, and the due and punctual payment of all other
obligations and due and punctual performance of all obligations of the Company
to the Holders or the Trustee all in accordance with the terms of such Note and
this Indenture and (ii) in the case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, at stated maturity, by acceleration or otherwise. Each
Guarantor, by execution of this Indenture, agrees that, subject only to the
applicable provisions, if any, of Section 10.06, its obligations hereunder shall
be absolute and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any such Note or this Indenture,
any failure to enforce the provisions of any such Note or this Indenture, any
waiver, modification or indulgence granted to the Company with respect thereto
by the Holder of such Note, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or such Guarantor.
Each Guarantor hereby waives diligence, presentment, demand for payment,
filing of claims with a court in the event of merger or bankruptcy of the
Company, any right to require a proceeding first against the Company, protest or
notice with respect to any such Note or the Indebtedness evidenced thereby and
all demands whatsoever, and covenants that this Guarantee will not be discharged
as to any such Note except by payment in full of the principal thereof and
interest thereon. Each Guarantor hereby agrees that, as between such Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (i) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article Six for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such obligations as provided in Article Six, such obligations
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor for the purpose of this Guarantee.
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The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of any Holder under the Note Guarantees.
SECTION 10.02. Execution and Delivery of Note Guarantee.
----------------------------------------
To further evidence the Note Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Note Guarantee, substantially in
the form attached hereto as Exhibit G, shall be endorsed on each Note
----------
authenticated and delivered by the Trustee and such Note Guarantee shall be
executed by either manual or facsimile signature of an Officer of each
Guarantor. The validity and enforceability of any Note Guarantee shall not be
affected by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Note Guarantee set forth in
Section 10.01 shall be in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Note Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which such Note Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of any Note Guarantee set forth in this
Indenture on behalf of the Guarantor.
SECTION 10.03. Release of Guarantors.
---------------------
(a) The Note Guarantee of a Guarantor (other than Parent or Crown) will be
unconditionally released and discharged upon any of the following:
(1) any Transfer (including, without limitation, by way of
consolidation or merger) by Parent or any Restricted Subsidiary to any
Person that is not a Restricted Subsidiary of Parent of all of the Equity
Interests of, or all or substantially all of the properties and assets of,
such Guarantor, which sale, exchange or transfer is made in accordance with
the provisions of this Indenture;
(2) any Transfer directly or indirectly (including, without
limitation, by way of consolidation or merger) by Parent or any Restricted
Subsidiary to any Person that is not a Restricted Subsidiary of Parent of
Equity Interests of such Guarantor or any issuance by such Guarantor of its
Equity Interests, which Transfer or issuance is made in accordance with the
provisions of this Indenture, such that such Guarantor ceases to be a
Subsidiary of Parent; provided that such Guarantor is also released from
all of its obligations in respect of Indebtedness of the Company, Parent
and each other Guarantor;
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(3) if such Guarantor is a Domestic Subsidiary of Parent, the release
of such Guarantor from all obligations of such Guarantor in respect of
Indebtedness under the New Credit Facility and under all Guarantees and
other obligations of such Guarantor in respect of Indebtedness of the
Company, Parent and each other Guarantor;
(4) if such Guarantor is a Restricted Subsidiary of the Company, the
release of such Guarantor from all obligations of such Guarantor in respect
of Indebtedness under the New Credit Facility and under all Guarantees and
other obligations of such Guarantor in respect of Indebtedness of the
Company, Parent and each other Guarantor; or
(5) the designation of such Guarantor as an Unrestricted Subsidiary in
accordance with the provisions of this Indenture; provided that such
Guarantor is also released from all of its obligations in respect of
Indebtedness under the New Credit Facility and under all Guarantees and
other obligations of such Guarantor in respect of Indebtedness of the
Company, Parent and each other Guarantor.
(b) Except as provided under Article Five, a Note Guarantee of Parent or
Crown may be released and discharged only in accordance with Article Eight;
provided that the Note Guarantee of Crown may also be released and discharged
upon satisfaction of any of the conditions set forth in clause (1), (2) or (5)
of subsection (a) of this Section 10.03.
(c) No such release or discharge of a Note Guarantee of a Guarantor shall
be effective against the Trustee or the Holders of Notes to which such Note
Guarantee relates (i) if a Default or Event of Default shall have occurred and
be continuing under this Indenture as of the time of such proposed release until
such time as such Default or Event of Default is cured and waived (unless such
release is in connection with the Transfer of the Equity Interests in such
Guarantor made in accordance with this Indenture and the Security Documents if,
but for the existence of such Default or Event of Default such Guarantor would
otherwise be entitled to be released from its Note Guarantee following the
Transfer of such Equity Interests) and (ii) until the Company shall have
delivered to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to such transactions have been
complied with and that such release and discharge is authorized and permitted
under this Indenture.
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(d) The Trustee shall execute any documents reasonably requested by either
the Company or a Guarantor in order to evidence the release of such Guarantor
from its obligations under its Guarantee endorsed on the Notes and under this
Article Ten.
SECTION 10.04. Waiver of Subrogation.
---------------------
Each Guarantor hereby irrevocably waives any claim or other rights which it
may now or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under its
Note Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, indemnification, and any right to
participate in any claim or remedy of any Holder of Notes against the Company,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Company, directly or indirectly, in cash or other property or
by set-off or in any other manner, payment or Note on account of such claim or
other rights. If any amount shall be paid to any Guarantor in violation of the
preceding sentence and the Notes shall not have been paid in full, such amount
shall have been deemed to have been paid to such Guarantor for the benefit of,
and held in trust for the benefit of, the Holders of the Notes, and shall
forthwith be paid to the Trustee for the benefit of such Holders to be credited
and applied upon the Notes, whether matured or unmatured, in accordance with the
terms of this Indenture. Each Guarantor acknowledges that it will receive direct
and indirect benefits from the financing arrangements contemplated by this
Indenture and that the waiver set forth in this Section 10.04 is knowingly made
in contemplation of such benefits.
SECTION 10.05. Notice to Trustee.
-----------------
The Company or any Guarantor shall give prompt written notice to the
Trustee of any fact known to the Company or any such Guarantor which would
prohibit the making of any payment to or by the Trustee at its Corporate Trust
Office in respect of the Note Guarantees. Notwithstanding the provisions of this
Article Ten or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Note Guarantees,
unless and until the Trustee shall have received written notice thereof from the
Company no later than one Business Day prior to such payment; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
this Section 10.05, and subject to the provisions of Sections 7.01 and 7.02,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice referred to in
this Section 10.05 at least one Business Day prior to the date upon which by the
terms hereof any such payment may become payable for any purpose under this
Indenture (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it less than one Business Day prior to such date.
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SECTION 10.06. Limitation on Guarantor's Liability.
-----------------------------------
(a) To the extent applicable, a Guarantor's liability in respect of its
Note Guarantee shall be limited to the extent set forth below:
(1) Limitations Applicable to U.S. Guarantors. Each Guarantor that is
-----------------------------------------
incorporated, organized or formed, as the case may be, under the laws of
the United States, any State thereof or the District of Columbia (a "U.S.
----
Guarantor"), and by its acceptance hereof, each Holder and the Trustee,
---------
hereby confirm that it is the intention of all such parties that the
Guarantee of a U.S. Guarantor does not constitute a fraudulent transfer or
conveyance for purposes of Title 11 of the United States Code, as amended,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar U.S. Federal or state or other applicable law. To effectuate
the foregoing intention, each Holder and each U.S. Guarantor hereby
irrevocably agree that the obligations of a U.S. Guarantor under its Note
Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such U.S. Guarantor
result in the obligations of such U.S. Guarantor not constituting such a
fraudulent transfer or conveyance.
(2) Limitations Applicable to Belgian Guarantors. Each Guarantor that
--------------------------------------------
is incorporated, organized or formed, as the case may be, in Belgium (a
"Belgian Guarantor"), and by its acceptance hereof, each Holder and the
------------------
Trustee, hereby confirms that notwithstanding any other provision of this
Indenture, or any related agreements or certificates, the maximum aggregate
liability hereunder and under the Note Guarantee of any Belgian Guarantor
shall be limited to the extent required by applicable law and to the amount
any such Belgium Guarantor can pay without exceeding its financial capacity
or otherwise resulting in insolvency of such Belgian Guarantor.
(3) Limitations Applicable to German Guarantors. Each Guarantor
-----------------------------------------------
incorporated, organized or formed, as the case may be, in Germany (a
"German Guarantor"), and by its acceptance hereof, each Holder and the
-----------------
Trustee, hereby confirm that the liability of such German Guarantor shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor and after giving effect
to any collections from or payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Note Guarantee or pursuant to its contribution obligations under this
Indenture, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under applicable law. Each German Guarantor that makes a payment or
distribution under its Note Guarantee shall be entitled to a contribution
from each other Guarantor in a pro rata amount based on the Adjusted Net
Assets of each Guarantor. The obligation of any German Guarantor under this
Article Ten will be binding only to the extent that it would not result in
a prohibited repayment to such Guarantor's shareholders of assets necessary
to maintain the nominal registered capital of such German Guarantor
(Section 30 et seq. GmbH Act).
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(4) Limitations Applicable to Swiss Guarantors. Each Guarantor
incorporated, organized or formed, as the case may be, in Switzerland (a
"Swiss Guarantor") and by its acceptance hereof, each Holder and the
----------------
Trustee, hereby confirm that the liability of such Swiss Guarantor shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Swiss Guarantor and after giving
effect to any collections from or payments made by or on behalf of any
other Guarantor, result in the obligations of such Swiss Guarantor under
its Note Guarantee not constituting a fraudulent conveyance or fraudulent
transfer under applicable law. The obligations of any Swiss Guarantor under
its Note Guarantee shall be limited so that they do not result in a
prohibited repayment of the registered share capital of such Swiss
Guarantor, and infringe the mandatory provisions on reserves (Sections 671
to 674 of the Swiss Code of Obligations).
(5) Limitations Applicable to French Guarantors. Each Guarantor
incorporated, organized or formed, as the case may be, in France (a "French
------
Guarantor"), and by its acceptance hereof, each Holder and the Trustee,
---------
hereby confirm that the liability of such French Guarantor shall be limited
to the extent required by applicable law to the amount any such French
Guarantor can pay without exceeding its financial capacity or otherwise
resulting in insolvency of such French Guarantor.
(6) Limitations Applicable to Other Guarantors. Each Guarantor that is
incorporated, organized or formed, as the case may be, under the laws of
any jurisdiction other than one set forth in clauses (1) through (5) above
(an "Other Guarantor"), and by its acceptance hereof, each Holder and the
----------------
Trustee, hereby confirm that it is the intention of all such parties that
the Guarantee of an Other Guarantor does not constitute a fraudulent
transfer or conveyance for purposes applicable law. To effectuate the
foregoing intention, each Holder and each Other Guarantor hereby
irrevocably agree that the obligations of an Other Guarantor under its Note
Guarantee shall be limited to the maximum amount as will, after giving
effect to all other contingent and fixed liabilities of such Other
Guarantor result in the obligations of such Other Guarantor not
constituting such a fraudulent transfer or conveyance.
"Adjusted Net Assets" of a Guarantor at any date means the lesser of (1)
the amount by which (x) the fair value of the assets of such Guarantor exceeds
the total amount of liabilities, including, without limitation, contingent
liabilities, but excluding liabilities under its Note Guarantee, of such
Guarantor at such date and (y) the present fair salable value of the assets of
such Guarantor at such date exceeds (2) the amount that will be required to pay
the probable liability of such Guarantor on its debts (after giving effect to
all other fixed and contingent liabilities and after giving effect to any
collection from any Subsidiary of such Guarantor in respect of the obligations
of such Guarantor under its Note Guarantee), excluding Indebtedness in respect
of its Note Guarantee, as they become absolute and matured.
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(b) If following the date of this Indenture and notwithstanding anything in
Section 8.02 to the contrary:
(1) (i) there shall be any change in the laws of the jurisdictions set
forth in clauses (1) through (5) of subsection (a) of this Section 10.06 or
(ii) any Restricted Subsidiary incorporated, organized or formed, as the
case may be, under the laws of any jurisdiction other than ones set forth
in clauses (1) through (5) of subsection (a) of this Section 10.06 (a
"Future Guarantor") shall be required to execute a Note Guarantee and the
-----------------
Company shall reasonably determine that clause (6) with respect to Other
Guarantors shall not adequately address the limitations on such Guarantee
imposed by applicable law of the jurisdiction of incorporation,
organization or formation, as the case may be, of any such Future
Guarantor; or
(2) the Company shall reasonably determine that is shall be necessary
or advisable to amend the terms of clauses (1) through (5) of subsection
(a) of this Section 10.06 or to add additional provisions related to the
limitations imposed on the Note Guarantee of a Future Guarantor,
then upon the deliver of an Officers' Certificate and Opinion of Counsel
reasonably satisfactory to the Trustee, the Company shall be entitled to amend
such clauses or add such additional provisions (including any related
modifications to the form of Guarantee attached hereto as Exhibit G), as the
---------
case may be, in order for the Note Guarantee of a Guarantor not to so violate
applicable law.
ARTICLE ELEVEN
SECURITY DOCUMENTS; PROCEEDS SHARING AGREEMENT
SECTION 11.01. Security Documents.
------------------
In order to secure the due and punctual payment of the principal, premium,
if any, and interest on the Notes, when the same shall be due and payable,
whether on an Interest Payment Date, at the Maturity Date, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes and performance of all other obligations of the
Company and the Guarantors to the Holders or the Trustee under this Indenture,
the Notes and the Note Guarantees, the Company and the Guarantors shall, on the
Issue Date, enter into each Security Document which by its terms requires such
Guarantor to become a party thereto. Any Subsidiary of Parent who, after the
Issue Date, becomes a Guarantor under this Indenture shall, upon becoming a
Guarantor under this Indenture, become a party to each applicable Security
Document.
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Each Holder, by accepting a Note, consents and agrees to all of the terms and
provisions of the Security Documents, as the same may be amended from time to
time pursuant to the terms of the Security Documents and this Indenture, and
authorizes and directs the Trustee to enter into the Security Documents on its
behalf and on behalf of such Holder, to appoint the Collateral Agents to serve
as collateral agents and representatives of the Trustee and such Holder
thereunder and in accordance therewith and to perform its obligations and
exercise its rights thereunder and in accordance therewith. The Company shall
deliver to the Trustee copies of all documents delivered to the Collateral
Agents pursuant to the Security Documents, and shall do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by the
provisions of the Security Documents, to assure and confirm to the Trustee and
the Collateral Agents the security interest in the Collateral contemplated by
this Indenture, the Security Documents or any part hereof or thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes and Note Guarantees secured
thereby, according to the intent and purposes herein and therein expressed. The
Company shall take, upon the written request of the Trustee (to the extent the
Trustee is permitted to make such request under the Security Documents), any and
all actions reasonably required to cause the Security Documents to create and
maintain, as security for the obligations of the Company under this Indenture,
the Notes and the Note Guarantees, a valid and enforceable perfected Lien on and
security interest in all of the Collateral, in favor of the Collateral Agents
for the benefit of the Holders, the Trustee and other Persons for whose benefit
the Collateral Agent or Trustee, as applicable, acts pursuant to the Security
Documents.
The Trustee shall, upon receipt of an Officers' Certificate designating any
amendment, refinancing successor or replacement agreement to the New Credit
Facility as a New Credit Facility pursuant to the definition of New Credit
Facility, (i) acknowledge in writing to the Company that, as may be requested in
the Officers' Certificate, the Security Documents and, if applicable, the
Proceeds Sharing Agreement shall be applicable to the obligations of Parent or
any of its Subsidiaries pursuant to such New Credit Facility, or (ii) execute
new Security Documents and, if applicable, a Proceeds Sharing Agreement on
substantially identical terms as the existing Security Documents and Proceeds
Sharing Agreement, with such changes therein as are necessary to reflect such
New Credit Facility and the parties thereto. Any collateral held by a Collateral
Agent (as defined in the applicable Security Documents) for the benefit of the
Holders shall constitute Collateral for purposes of this Indenture.
The Company covenants and agrees with the Trustee and each Holder that, for
so long as the Notes shall be secured by a Lien on any Collateral, the Notes
shall be secured by a pledge of 100% of the Equity Interests in the Pledged
Holdco pursuant to the Security Documents.
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SECTION 11.02. Recordings and Opinions.
-----------------------
(a) The Company and the Guarantors shall take or cause to be taken all
action required under the Security Documents to maintain, perfect, preserve and
protect the Lien on and security interests in the Collateral granted by the
Security Documents, to the extent required thereby, including, but not limited
to, causing all financing statements, mortgages, the Security Documents (or a
short form version thereof) and other instruments of further assurance,
including, without limitation, continuation statements covering security
interests in personal property, to be promptly recorded, registered and filed,
and at all times to be kept recorded, and shall execute and file such financing
statements and cause to be issued and filed such continuation statements, all in
such manner and in such places as may be required by law fully to preserve and
protect the rights of the Holders and the Trustee under this Indenture and the
Security Documents to all property comprising the Collateral. The Company shall
from time to time promptly pay and discharge all mortgage and financing and
continuation statement recording and/or filing fees, charges and taxes relating
to this Indenture and the Security Documents, any amendments thereto and any
other instruments of further assurance required hereto or pursuant to the
Security Documents. Notwithstanding the foregoing, the Trustee shall not have
any duty or obligation to ascertain whether any such taxes are required to be
paid at any time, and the determination referred to in the preceding sentence
shall only be made by the Trustee upon receipt of written notice that such taxes
are due and owing.
(b) The Company shall furnish or cause to be addressed and furnished to the
Trustee:
(1) at the time of execution and delivery of this Indenture, Opinions
of Counsel substantially in the form of the opinions of counsel delivered
on the Issue Date to the Bank Agents, any Collateral Agent and/or the
Initial Purchasers relating to any of the Collateral and/or the Security
Documents; and
(2) at the time of delivery thereof after the Issue Date, Opinions of
Counsel substantially in the form of any opinions of counsel delivered
after the Issue Date to the Bank Agents or any Collateral Agent relating to
any of the Collateral and/or the Security Documents.
(c) The Company and the Guarantors shall at all times comply with the
provisions of TIAss.314(b) as then in effect.
SECTION 11.03. Possession, Use and Release of Collateral.
-----------------------------------------
(a) Each Holder, by accepting a Note, consents and agrees to the provisions
of the Security Documents governing the possession, use and release of
Collateral. Without limiting the generality of the foregoing, each Holder, by
accepting a Note, consents and agrees that Collateral may, and, as applicable,
shall, be released or substituted only in accordance with the terms of the
Security Documents; provided that Collateral may be released under this
Indenture and the Security Documents with the consent of the Holders of at least
66 2/3% in aggregate principal amount of the Notes then outstanding, as provided
under Section 8.02(c).
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(b) Notwithstanding the foregoing, the release of any Collateral from the
Lien and security interest created by this Indenture and the Security Documents
shall not be deemed to impair the security under this Indenture in contravention
of the provisions hereof if and to the extent the Collateral is released
pursuant to the terms of the Security Documents.
(c) The fair value of Collateral released from the Liens and security
interest created by this Indenture and the Security Documents pursuant to the
terms of the Security Documents shall not be considered in determining whether
the aggregate fair value of the Collateral released from the Liens and security
interest created by this Indenture and the Security Documents in any calendar
year exceeds the 10% threshold specified in TIA ss. 314(d)(1). It is expressly
understood that Section 11.08 and this Section 11.03 relate only to the
Company's and the Guarantor's obligations under the TIA and shall not restrict
or otherwise affect the Company's and the Guarantor's rights or abilities to
release Collateral pursuant to the terms of the Credit Facility and the Security
Documents or as otherwise permitted by the Lenders.
SECTION 11.04. Suits To Protect Collateral.
---------------------------
Subject to the provisions of Sections 7.01 and 7.02, the Trustee may,
subject to the provisions of the Security Documents, in its sole discretion and
without the consent of the Holders of Notes, direct, on behalf of the Holders of
Notes, the Collateral Agents to take all actions it deems necessary or
appropriate in order to enforce any of the terms of the Security Documents and
collect and receive any and all amounts payable in respect of the obligations of
the Company and the Guarantors under this Indenture, the Notes and the Note
Guarantees. Subject to the provisions of the Security Documents, the Trustee
shall have power to institute and to maintain such suits and proceedings as it
may deem expedient to prevent any impairment of the Collateral by any acts which
may be unlawful or in violation of any of the Security Documents or this
Indenture, and such suits and proceedings as the Trustee may deem expedient to
preserve or protect its interests and the interests of the Trustee and the
Holders in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the Lien and security interest created by this
Indenture and the Security Documents or be prejudicial to the interests of the
Holders or the Trustee).
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SECTION 11.05. Purchaser Protected.
-------------------
In no event shall any purchaser in good faith of any property purported to
be released from the Lien and security interest created by this Indenture and
the Security Documents be bound to ascertain the authority of the Trustee or the
applicable Collateral Agent, as the case may be, to execute the release or to
inquire as to the satisfaction of any conditions required by the provisions of
this Indenture or the Security Documents for the exercise of such authority or
to see to the application of any consideration given by such purchaser or other
transferee; nor shall any purchaser or other transferee of any property or
rights permitted by this Article Eleven and the Security Documents to be sold be
under obligation to ascertain or inquire into the authority of the Company or
any Guarantor to make any such sale or other transfer.
SECTION 11.06. Powers Exercisable by Receiver or Trustee.
-----------------------------------------
In case Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article Eleven and the Security
Documents upon the Company and the Guarantors with respect to the release, sale
or other disposition of such property may be exercised by such receiver or
trustee, and an instrument signed by such receiver or trustee shall be deemed
the equivalent of any similar instrument of the Company or a Guarantor or of any
Officer or Officers of the Company or a Guarantor required by the provisions of
this Article Eleven.
SECTION 11.07. Determinations Relating to Collateral.
-------------------------------------
In the event (i) the Trustee shall receive any written request from the
Company or any Guarantor under any Security Document for consent or approval
with respect to any matter or thing relating to any Collateral or the Company's
or any Guarantor's obligations with respect thereto, (ii) there shall be
required from the Trustee under the provisions of any Security Document any
performance or the delivery of any instrument or (iii) a Responsible Officer of
the Trustee shall become aware of any nonperformance by the Company or any
Guarantor of any covenant or any breach of any representation or warranty of the
Company or any Guarantor set forth in any Security Document, and, in the case of
clause (i), (ii) or (iii) above, the Trustee's response or action is not
otherwise specifically contemplated hereunder (including, without limitation,
Section 8.01) or under the applicable Security Documents, then, in each such
event, the Trustee shall, within seven Business Days, advise the Holders, in
writing and at the Company's expense, of the matter or thing as to which consent
has been requested or the performance or instrument required to be delivered or
the nonperformance or breach of which the Trustee has become aware. Subject to
Section 8.02(c)(i), the Holders of not less than a majority in aggregate
principal amount of the outstanding Notes pursuant to Section 6.05 shall have
the exclusive authority to direct the Trustee's response to any of the
circumstances contemplated in clauses (i), (ii) and (iii) above. In the event
the Trustee shall be required to respond to any of the circumstances
contemplated in this Section 11.07,
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the Trustee shall not be required so to respond unless it shall have received
written authority by not less than a majority in aggregate principal amount of
the outstanding Notes (subject to Section 8.02(c)(i)); provided that the Trustee
shall be entitled to hire experts, consultants, agents and attorneys to advise
the Trustee on the manner in which the Trustee should respond to such request or
render any requested performance or response to such nonperformance or breach
(the expenses of which shall be reimbursed to the Trustee pursuant to Section
7.07). The Trustee shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney or
agreed to by a majority of Holders pursuant to Section 6.05.
SECTION 11.08. Certificates of the Company and the Guarantors.
----------------------------------------------
To the extent applicable, the Company and the Guarantors shall comply (or
cause compliance) with TIA ss. 313(b), relating to reports, and TIA ss. 314(d),
relating to the release of property or securities from the Lien and security
interest of this Indenture and the Security Documents and relating to the
substitution therefor of any property or securities to be subjected to the Lien
and security interest of this Indenture and the Security Documents. Any
certificate or opinion required by TIA ss. 314(d) may be made by an Officer of
the Company or a Guarantor, as applicable, except in cases where TIA ss. 314(d)
requires that such certificate or opinion be made by an independent Person,
which Person shall be an independent engineer, appraiser or other expert
selected or approved by the applicable Collateral Agent in the exercise of
reasonable care.
SECTION 11.09. Certificates of the Trustee.
---------------------------
In the event that the Company or any Guarantor wishes to release Collateral
in accordance with this Indenture and the Security Documents and has delivered
the certificates and documents required by this Indenture and the Security
Documents, the Trustee shall determine whether it has received all documentation
required by TIA ss. 314(d) in connection with such release and, based on the
Opinion of Counsel delivered pursuant to Section 12.04(2), shall deliver a
certificate to the applicable Collateral Agent setting forth such determination.
The Trustee, however, shall have no duty to confirm the legality or validity of
such documents, its sole duty being to certify that it has received such
documentation which on their face conform to TIA ss. 314(d).
SECTION 11.10. Termination of Security Interest.
--------------------------------
In the event that the Company delivers an Officers' Certificate certifying
that its obligations under this Indenture and the Notes have been satisfied and
discharged by complying with the provisions of Article Nine, and such other
documents and/or funds as are required to be delivered or paid pursuant to
Article Nine, the Trustee shall notify the Collateral Agents under the Security
Documents that such obligations have been satisfied and discharged in accordance
with the terms of this Indenture, and shall take such other actions in
connection therewith as may be required or contemplated by the Security
Documents to be taken by the Trustee.
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SECTION 11.11. Euro Collateral Agent as Joint Creditor.
---------------------------------------
Each party to this Indenture and the Noteholders agree that, for so long as
the obligations under this Indenture and the Notes shall be secured by any
Collateral, the Euro Collateral Agent (and any agent or sub-agent of the Euro
Collateral Agent) shall be the joint and several creditor (together with the
relevant Noteholder) of each and every obligation of the Company and the
Guarantors towards each of the Noteholders under or in connection with this
Indenture and the Notes, and that accordingly the Euro Collateral Agent (and any
agent or sub-agent of the Euro Collateral Agent) will have its own and
independent right to demand performance by the Company and the Guarantors of
those obligations. However, any discharge of any such obligation towards the
Euro Collateral Agent (and any agent or sub-agent of the Euro Collateral Agent)
or the relevant Noteholder shall, to the same extent, discharge the
corresponding obligation towards the other.
SECTION 11.12. Matters Relating to Proceeds Sharing Agreement.
----------------------------------------------
(a) The rights of the Holders of the Notes and the Trustee under this
Indenture, the Notes, the Note Guarantees and the Security Documents shall be
subject to the provisions of the Proceeds Sharing Agreement. Each Holder, by its
acceptance of a Note, consents and agrees to all of the terms and provisions of
the Proceeds Sharing Agreement, as the same may be amended from time to time
pursuant to the terms of the Proceeds Sharing Agreement and this Indenture, and
authorizes and directs the Trustee to enter into the Proceeds Sharing Agreement
on its behalf and on behalf of such Holder, to appoint the Sharing Agent to
serve as global participation and proceeds sharing agent and representative of
the Trustee and such Holder thereunder and in accordance therewith and to
perform its obligations and exercise its rights thereunder and in accordance
therewith.
(b) Subject to the provisions of Sections 7.01 and 7.02 and the Proceeds
Sharing Agreement, the Trustee may, in its sole discretion and without the
consent of the Holders of Notes, direct, on behalf of the Holders of Notes, the
Sharing Agent to take all actions it deems necessary or appropriate in
connection with the Proceeds Sharing Agreement. The Trustee shall have power to
institute and maintain such suits and proceedings as it may deem expedient to
preserve or protect its rights and interests and the rights and interests of the
Holders of the Notes under the Proceeds Sharing Agreement (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would be prejudicial to the
rights and interests of the Holders or to the Trustee).
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(c) In the event (i) the Trustee shall receive any written request from any
party to the Proceeds Sharing Agreement for consent or approval with respect to
any matter or thing relating to the Proceeds Sharing Agreement, (ii) there shall
be required from the Trustee under the provisions of the Proceeds Sharing
Agreement any performance or the delivery of any instrument or (iii) a
Responsible Officer of the Trustee shall become aware of any nonperformance by
any party thereto of any covenant or any breach of any representation or
warranty set forth in Proceeds Sharing Agreement, and, in the case of clause
(i), (ii) or (iii) above, the Trustee's response or action is not otherwise
specifically contemplated hereunder (including, without limitation, Section
8.01) or under the Proceeds Sharing Agreement, then, in each such event, the
Trustee shall, within seven Business Days, advise the Holders, in writing and at
the Company's expense, of the matter or thing as to which consent has been
requested or the performance or instrument required to be delivered or the
nonperformance or breach of which the Trustee has become aware. Subject to
Section 8.02, the Holders of not less than a majority in aggregate principal
amount of the outstanding Notes pursuant to Section 6.05 shall have the
exclusive authority to direct the Trustee's response to any of the circumstances
contemplated in clauses (i), (ii) and (iii) above. In the event the Trustee
shall be required to respond to any of the circumstances contemplated in this
Section 11.12, the Trustee shall not be required so to respond unless it shall
have received written authority by not less than a majority in aggregate
principal amount of the outstanding Notes (subject to Section 8.02); provided
that the Trustee shall be entitled to hire experts, consultants, agents and
attorneys to advise the Trustee on the manner in which the Trustee should
respond to such request or render any requested performance or response to such
nonperformance or breach (the expenses of which shall be reimbursed to the
Trustee pursuant to Section 7.07). The Trustee shall be fully protected in the
taking of any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by a majority of Holders pursuant to Section
6.05.
(d) Unless otherwise provided in the Proceeds Sharing Agreement, upon the
occurrence and during the continuance of a Triggering Event under the Proceeds
Sharing Agreement, the Trustee shall direct the Company any each Guarantor to
make all payments in respect of the Notes and the Note Guarantees to the Sharing
Agent under the Proceeds Sharing Agreement. In the event that notwithstanding
the foregoing, the Trustee or any Holder, shall have received any payment
prohibited by the foregoing provisions, then and in such event such payment
shall be paid over and delivered forthwith to the Sharing Agent to be held and
distributed in accordance with the terms of the Proceeds Sharing Agreement.
(e) Until the termination of the Proceeds Sharing Agreement in accordance
with the terms thereof, the Trustee will cause to be clearly, conspicuously and
prominently inserted on the face of each Note the following legend:
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE
SUBJECT TO IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
GLOBAL PARTICIPATION AND PROCEEDS SHARING AGREEMENT DATED AS OF
FEBRUARY 26, 0000 XXXXX XXXXXXXX XXXXX XXXXXXX, INC., AS
ADMINISTRATIVE AGENT AND COLLATERAL AGENT, CITIBANK INTERNATIONAL PLC,
AS UK ADMINISTRATIVE AGENT, CITICORP TRUSTEE COMPANY LIMITED, AS EURO
COLLATERAL AGENT, XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, AS
TRUSTEE, CITICORP NORTH AMERICA, INC., AS SHARING AGENT, AND THE OTHER
PERSONS WHO MAY BECOME PARTIES THERETO FROM TIME TO TIME, AND EACH
HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY
AGREES TO BE BOUND BY THE PROVISIONS OF THE GLOBAL PARTICIPATION AND
PROCEEDS SHARING AGREEMENT.
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(f) The Trustee shall promptly notify the Company of the occurrence of the
termination of the Proceeds Sharing Agreement.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control. If any provision of this Indenture
modifies any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA provision
shall be excluded from this Indenture.
The provisions of TIA xx.xx. 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included unless expressly
excluded by this Indenture) are a part of and govern this Indenture, whether or
not physically contained herein.
SECTION 12.02. Notices.
-------
Except for notice or communications to Holders, any notice or communication
shall be given in writing and delivered in person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, addressed as follows:
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If to the Company or any Guarantor:
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Attn: Xxxxxxx X. Xxxxx
Telephone: 00 0 0000 0000
Facsimile: 33 1 4918 4001
With copies to:
Crown Holdings, Inc.
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000-0000
Attn: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and:
Dechert LLP
0000 Xxxx Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
and:
Jeantet Associes
00, xxxxxx Xxxxxx
00000 Xxxxx Cedex 16
France
Attn: Xxxxxxxx Xxxxxxx/Xxxx-Xxxxxxx Xxxxxxxx
Telephone: x000 00 00 00 00
Facsimile: x000 00 00 00 00
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If to the Trustee:
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
The Company, the Guarantors or the Trustee by written notice to the others
may designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given at the time delivered by hand, if personally
delivered; five (5) calendar days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee); when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA ss. 313(c), to the extent required by the TIA. Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication to a Holder is mailed in the manner provided
above, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by reason
of any other cause, it shall be impossible to mail any notice as required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 12.03. Communications by Holders with Other Holders.
---------------------------------------------
Holders may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Guarantors, the Trustee, the Registrar, each Agent and anyone else shall have
the protection of TIA ss. 312(c).
-134-
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company or any Guarantor to the
Trustee to take any action under this Indenture, the Company or such Guarantor
shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 12.05 below) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been complied with.
SECTION 12.05. Statements Required in Certificate and Opinion.
----------------------------------------------
Each certificate and opinion with respect to compliance by or on
behalf of the Company or any Guarantor with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, it or he has
made such examination or investigation as is necessary to enable it or
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such covenant or condition has been complied with.
SECTION 12.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
SECTION 12.07. Business Days; Legal Holidays.
-----------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal Holiday" is
------------ -------------
a Saturday, a Sunday or other day on which commercial banks in The City of New
York, the State of New York are authorized or required by law to close. If a
payment date is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
-135-
SECTION 12.08. Governing Law.
-------------
This Indenture, the Notes and the Note Guarantees shall be governed by and
construed in accordance with the laws of the State of New York, but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of Parent or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
SECTION 12.10. Successors.
----------
All agreements of the Company and the Guarantors in this Indenture and the
Notes shall bind their respective successors. All agreements of the Trustee, any
additional trustee and any Agents in this Indenture shall bind its successor.
SECTION 12.11. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each signed
counterpart shall be deemed an original, but all of them together represent one
and the same agreement.
SECTION 12.12. Table of Contents, Headings, etc.
--------------------------------
The table of contents, cross-reference sheet and headings of the Articles
and Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part hereof, and shall in no way modify or
restrict any of the terms or provisions hereof.
SECTION 12.13. Separability.
------------
Each provision of this Indenture shall be considered separable and if for
any reason any provision which is not essential to the effectuation of the basic
purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
-136-
SECTION 12.14. Agent for Service; Submission to Jurisdiction; Waiver of
---------------------------------------------------------------
Immunities.
----------
(a) By the execution and delivery of this Indenture, the Company and each
Guarantor (i) acknowledges that it has irrevocably designated and appointed CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (and any
successor entity) as its authorized agent upon which process may be served in
any suit or proceeding arising out of or relating to this Indenture, the Notes,
the Note Guarantees and the Security Documents that may be instituted in any
Federal or state court in the State of New York, The City of New York, the
Borough of Manhattan or brought under Federal or state securities laws, and
acknowledges that CT Corporation System has accepted such designation, (ii)
irrevocably submits to the jurisdiction of any such court in any such suit or
proceeding and (iii) agrees that service of process upon CT Corporation System
and written notice of said service to the Company in accordance with this
Section 12.14 shall be deemed in every respect effective service of process upon
the Company or any Guarantor, if any, in any such suit or proceeding. The
Company and each Guarantor further agrees to take any and all such action,
including the execution and filing of any and all such documents and instruments
as may be necessary to continue such designation and appointment of CT
Corporation System in full force and effect so long as this Indenture shall be
in full force and effect or any of the Notes shall be outstanding; provided,
however, that the Company or any Guarantor may, by written notice to the
Trustee, designate such additional or alternative agent for service of process
under this Section 12.14 that (i) maintains an office located in the Borough of
Manhattan, The City of New York, the State of New York, (ii) is a corporate
service company which acts as agent for service of process for other Persons in
the ordinary course of its business and (iii) agrees to act as agent for service
of process in accordance with this Section 12.14. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, the State of New York.
(b) To the extent that the Company or any Guarantor has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
with respect to itself or its property, it hereby irrevocably waives such
immunity in respect of its obligations under each of this Indenture, the Notes,
the Note Guarantees and the Security Documents. In addition, the Company and
each Guarantor irrevocably waives and agrees not to assert, by way of motion, as
a defense, or otherwise in any such suit, action or proceeding, any claim that
it is not personally subject to the jurisdiction of the above-mentioned courts
for any reason whatsoever, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue for such suit is improper, or that this
Indenture, the Notes, the Note Guarantees or the Security Documents or the
subject matter hereof or thereof may not be enforced in such courts.
(c) The Company and the Guarantors agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Section 12.14 shall affect the right of the Trustee to serve
legal process in any other manner permitted by law or affect the right of the
Trustee to bring any action or proceeding against the Company or any Guarantor
or its property in the courts of any other jurisdictions.
-137-
SECTION 12.15. Currency of Account; Conversion of Currency; Foreign Exchange
----------------------------------------------------------------
Restrictions.
------------
(a) U.S. Dollars are the sole currency of account and payment for all sums
payable by the Company and the Guarantors under or in connection with the Notes,
the Note Guarantees or this Indenture, including damages related thereto. Any
amount received or recovered in a currency other than U.S. Dollars by a Holder
(whether as a result of, or of the enforcement of, a judgment or order of a
court of any jurisdiction, in the winding-up or dissolution of the Company or
otherwise) in respect of any sum expressed to be due to it from the Company
shall only constitute a discharge to the Company to the extent of the U.S.
Dollar amount which the recipient is able to purchase with the amount so
received or recovered in that other currency on the date of that receipt or
recovery (or, if it is not practicable to make that purchase on that date, on
the first date on which it is practicable to do so). If that U.S. Dollar amount
is less than the U.S. Dollar amount expressed to be due to the recipient under
the Notes, the Company shall indemnify it against any loss sustained by it as a
result as set forth in Section 12.15(b). In any event, the Company and the
Guarantors shall indemnify the recipient against the cost of making any such
purchase. For the purposes of this Section 12.15, it will be sufficient for the
Holder of a Note to certify in a satisfactory manner (indicating sources of
information used) that it would have suffered a loss had an actual purchase of
U.S. Dollars been made with the amount so received in that other currency on the
date of receipt or recovery (or, if a purchase of U.S. Dollars on such date had
not been practicable, on the first date on which it would have been practicable,
it being required that the need for a change of date be certified in the manner
mentioned above). The indemnities set forth in this Section 12.15 constitute
separate and independent obligations from other obligations of the Company and
the Guarantors, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by any Holder of the Notes
and shall continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under the
Notes.
(b) The Company and the Guarantors, jointly and severally, covenant and
agree that the following provisions shall apply to conversion of currency in the
case of the Notes, the Note Guarantees and this Indenture:
(1) (A) If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to
convert into a currency (the "Judgment Currency") an amount due in any
other currency (the "Base Currency"), then the conversion shall be
made at the rate of exchange prevailing on the Business Day before the
day on which the judgment is given or the order of enforcement is
made, as the case may be (unless a court shall otherwise determine).
(B) If there is a change in the rate of exchange prevailing
between the Business Day before the day on which the judgment is given
or an order of enforcement is made, as the case may be (or such other
date as a court shall determine), and the date of receipt of the
amount due, the Company and the Guarantors will pay such additional
(or, as the case may be, such lesser) amount, if any, as may be
necessary so that the amount paid in the Judgment Currency when
converted at the rate of exchange prevailing on the date of receipt
will produce the amount in the Base Currency originally due.
(2) In the event of the winding-up of the Company or any
Guarantor at any time while any amount or damages owing under the
Notes, the Guarantees and this Indenture, or any judgment or order
rendered in respect thereof, shall remain outstanding, the Company and
the Guarantors shall indemnify and hold the Holders and the Trustee
harmless against any deficiency arising or resulting from any
variation in rates of exchange between (i) the date as of which the
U.S. Dollar Equivalent of the amount due or contingently due under the
Notes, the Guarantees and this Indenture (other than under this
subsection (b)(2)) is calculated for the purposes of such winding-up
and (ii) the final date for the filing of proofs of claim in such
winding-up. For the purpose of this subsection (b)(2), the final date
for the filing of proofs of claim in the winding-up of the Company or
any Guarantor shall be the date fixed by the liquidator or otherwise
in accordance with the relevant provisions of applicable law as being
the latest practicable date as at which liabilities of the Company or
such Guarantor may be ascertained for such winding-up prior to payment
by the liquidator or otherwise in respect thereto.
(c) The obligations contained in subsections (a), (b)(1)(B) and (b)(2) of
this Section 12.15 shall constitute separate and independent obligations from
the other obligations of the Company and the Guarantors under this Indenture,
shall give rise to separate and independent causes of action against the Company
and the Guarantors, shall apply irrespective of any waiver or extension granted
by any Holder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or the
filing of any proof of claim in the winding-up of the Company or any Guarantor
for a liquidated sum in respect of amounts due hereunder (other than under
subsection (b)(2) above) or under any such judgment or order. Any such
deficiency as aforesaid shall be deemed to constitute a loss suffered by the
Holders or the Trustee, as the case may be, and no proof or evidence of any
actual loss shall be required by the Company or any Guarantor or the liquidator
or otherwise or any of them. In the case of subsection (b)(2) above, the amount
of such deficiency shall not be deemed to be reduced by any variation in rates
of exchange occurring between the said final date and the date of any
liquidating distribution.
-139-
(d) The term "rate(s) of exchange" shall mean the rate of exchange quoted
by Reuters at 10:00 a.m. (New York time) for spot purchases of the Base Currency
with the Judgment Currency other than the Base Currency referred to in
subsections (b)(1) and (b)(2) above and includes any premiums and costs of
exchange payable.
[Signature Pages Follow]
IN WITNESS WHEREOF, each of the Guarantors has caused this Guarantee to be
signed by a duly authorized officer.
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Attest:
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CONSULTANTS, INC.
CROWN CORK & SEAL TECHNOLOGIES CORPORATION
CROWN BEVERAGE PACKAGING, INC.
CROWN CORK DE PUERTO RICO, INC.
FOREIGN MANUFACTURERS FINANCE CORPORATION
NATIONWIDE RECYCLERS' INC.
XXXXXX-AMS (USA), INC.
CENTRAL STATES CAN CO. OF PUERTO RICO, INC.
EYELET, INC.
EYELET SPECIALTY CO., INC.
CROWN FINANCIAL MANAGEMENT, INC.
HOCKING VALLEY LEASING COMPANY
XXXXXX PLASTIK, INC.
CROWN OVERSEAS INVESTMENTS CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CORK & SEAL AMERICAS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CORK & SEAL COMPANY (USA),INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
CROWN CORK & SEAL COMPANY (PA), INC.
By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
CROWN FINANCIAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
CROWN NEW DELAWARE HOLDINGS,INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CCK INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CCK UK INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CCK DEUTSCHLAND INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CANADA INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CCK MEXICAN INVESTMENTS LLC
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN INTERNATIONAL HOLDINGS,INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
CROWN HOLDINGS (PA), LLC
(formerly Crown Holdings, LLC)
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN Cork & Seal Company (DE), LLC
(formerly Crown Cork & Seal Company, LLC)
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
CROWN CORK COMPANY BELGIUM NV
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Xxxxxxxx
XXXXX XXXX & XXXX XXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
889273 ONTARIO INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
XXXXXX-AMS (CANADA), INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
XXXXXX PLASTIK CANADA, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
Z.P. France
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Societe de Participations CarnaudMetalbox
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Astra Plastique S.A.S.
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
POLYFLEX S.A.
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
La Francaise de Developpement de
la Boite Boissons (Sofreb)
By: /s/ Xxxx Xxxxxxxx
-------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company France SA
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX DEUTSCHLAND GMBH
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
CROWN XXXXXX GMBH
By: /s/ Xxxxxx Xxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
XXXXXXX VERPACKUNGEN
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
XXXXXXX VERSCHLUSSE GMBH
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
XXXXXXX & XXXXX METALLVERPACKUNGEN
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
CARNAUDMETALBOX NAHRUNGSMITTELDOSEN
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
XXXXXX PLASTIK GMBH
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
RAKU RASTATT GMBH
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title:Attorney
XXXXXX ENGINEERING GMBH
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
CROWN CORK & SEAL DEUTSCHLAND HOLDINGS GmbH
(formerly Xxxxxxxxx GmbH)
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
ENVASES GENERALES CROWN S.A. DE C.V.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Legal Representative
XXXXXX PLASTIK DE MEXICO S.A. DE C.V.
By: /s/ Xxxxxxx Xxxx G.
-----------------------------------------
Name: Xxxxxxx Xxxx G.
Title: Legal Representative
CROWN CORK AG SWITZERLAND
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN XXXXXX XX (SWITZERLAND)
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
BMW XXXXX (SWITZERLAND)
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN UK HOLDINGS LIMITED
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN CORK COMPANY LIMITED
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX OVERSEAS LIMITED
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN CORK & SEAL FINANCE PLC
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX PLC
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
UNITED CLOSURES AND PLASTICS PLC
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CARNAUDMETALBOX ENGINEERING PLC
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
MASSMOULD HOLDINGS LIMITED
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
SPECIALTY PACKAGING (UK) PLC
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Group UK Limited
By: /s/ Xxxx Xxxxxxxx
------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CROWN DEVELOPPEMENT S.N.C.
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
-------------------------------------------------------
Name:
Title:
EXHIBIT A-1
-----------
[FORM OF RESTRICTED NOTE]
CROWN EUROPEAN HOLDINGS SA
10 7/8% THIRD PRIORITY SENIOR SECURED NOTE DUE 2013
[Insert Global Note Legend, if applicable]
[Insert Private Placement Legend]
[Insert Proceeds Sharing Agreement Legend, if applicable]
No. [ ]
Common Code No. [ ]
CROWN EUROPEAN HOLDINGS SA, a French societe anonyme, as issuer (the
"Company"), for value received, promises to pay to [ ] or registered assigns
the principal sum of [ ] on March 1, 2013.
Interest Payment Dates: March 1 and September 1 commencing September 1, 2003.
Record Dates: February 15 and August 15 (whether or not a Business Day).
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
A-1-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by two of its duly authorized officers.
CROWN EUROPEAN HOLDINGS SA
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
A-1-2
Certificate of Authentication
This is one of the 10 7/8% Third Priority Senior Secured Notes due 2013
referred to in the within-mentioned Indenture.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Trustee
By:
--------------------------------------------------
Dated: [ ]
A-1-3
[FORM OF REVERSE OF RESTRICTED NOTE]
CROWN EUROPEAN HOLDINGS SA
10 7/8% THIRD PRIORITY SENIOR SECURED NOTE DUE 2013
1. Interest. CROWN EUROPEAN HOLDINGS SA, a French societe anonyme, as
--------
issuer (the "Company"), promises to pay interest on the principal amount set
-------
forth on the face hereof at a rate of 10.875% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including February 26, 2003 to but
excluding the date on which interest is paid. Interest shall be payable in
arrears on each March 1 and September 1, commencing September 1, 2003. Interest
will be computed on the basis of a 360-day year of twelve 30-day months and
actual days elapsed. The Company shall pay interest on overdue principal and on
overdue interest (to the full extent permitted by law) at the rate borne by the
Notes.
2. Method of Payment. The Company will pay interest hereon (except
-------------------
defaulted interest) to the Persons who are registered Holders at the close of
business on February 15 or August 15 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
U.S. Dollars. Interest may be paid by check mailed to the Holder entitled
thereto at the address indicated on the register maintained by the Registrar for
the Notes.
3. Paying Agent and Registrar. Initially, Xxxxx Fargo Bank Minnesota,
----------------------------
National Association (the "Trustee") will act as a Paying Agent and Registrar.
-------
The Company may change any Paying Agent or Registrar without notice. The Company
or any Affiliate thereof may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture dated as of
---------
February 26, 2003 (the "Indenture") among the Company, the Guarantors and the
---------
Trustee. This is one of an issue of Notes of the Company issued, or to be
issued, under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb), as amended from time
to time. The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of them. Capitalized and certain
other terms used herein and not otherwise defined have the meanings set forth in
the Indenture.
5. Optional Redemption.
(a) On and after March 1, 2008, the Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, at the following
redemption prices, expressed as percentages of the principal amount thereof,
plus accrued and unpaid interest, if any, to the Redemption Date, if redeemed
during the twelve-month period commencing on March 1 of any year set forth
below:
A-1-4
Year Percentage
---- ----------
2008............................................... 105.438%
2009............................................... 103.625%
2010............................................... 101.813%
2011 and thereafter................................ 100.000%
(b) In addition, on or prior to March 1, 2008, the Company may redeem the
Notes, at its option, in whole at any time or in part from time to time, at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Make-Whole Redemption Date, plus the applicable
Make-Whole Premium (a "Make-Whole Redemption").
---------------------
(c) Notwithstanding the foregoing, on or prior to March 1, 2006, the
Company, on one or more occasions, may, at its option, redeem up to 35% in
aggregate principal amount of the Notes (including Additional Notes) originally
issued under the Indenture at a redemption price equal to 110.875% of their
principal amount, plus accrued and unpaid interest, if any, to the Redemption
Date, with the net cash proceeds of one or more Equity Offerings by Parent to
the extent that the net cash proceeds thereof are contributed to the common
equity capital of the Company or are used to subscribe from the Company shares
of Qualified Capital Stock of the Company; provided that (1) at least 65% in
aggregate principal amount of the Notes (including Additional Notes) originally
issued under the Indenture remain outstanding immediately after the occurrence
of each such redemption and (2) such redemption occurs within 90 days of the
date of the closing of any such Equity Offering.
6. Redemption for Changes in Withholding Tax. The Company may, at its
--------------------------------------------
option, redeem all, but not less than all, of the Notes then outstanding at a
redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest thereon to the Redemption Date. This redemption
applies only if as a result of any amendment to, or change in, the laws or
treaties (including any rulings or regulations promulgated thereunder) of France
or any other jurisdiction in which the Company or any Guarantor is organized or
is a resident for tax purposes or within or through which payment is made or any
political subdivision or taxing authority or agency thereof or therein (or, in
the case of Additional Amounts payable by a successor Person to the Company or a
Guarantor, of the jurisdiction in which such successor Person is organized or is
a resident for tax purposes or any political subdivision or taxing authority or
agency thereof or therein) or any amendment to or change in any official
position concerning the interpretation, administration or application of such
laws, treaties, rulings or regulations (including a holding by a court of
competent jurisdiction), which amendment or change is effective on or after the
Issue Date (or, in the case of Additional Amounts payable by a successor Person
to the Company or a Guarantor, the date on which such successor Person became
such pursuant to applicable provisions of this Indenture), the Company or a
Guarantor has become or will become obligated to pay material Additional Amounts
(pursuant to Section 4.16 of the Indenture) on the next date on which any amount
would be payable with respect to the Notes and the Company or such Guarantor
determines in good faith that such obligation cannot be avoided (including,
without limitation, by changing the jurisdiction from which or through which
payment is made) by the use of reasonable measures available to the Company or
such Guarantor.
A-1-5
No such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company or a Guarantor would be obligated to pay such
Additional Amounts were a payment in respect of the Notes then due or later than
180 days after such amendment or change referred to in the preceding paragraph.
At the time such notice of redemption is given, such obligation to pay such
Additional Amounts must remain in effect. Immediately prior to the mailing of
any notice of redemption described above, the Company shall deliver to the
Trustee (i) an Officers' Certificate stating that the Company is entitled to
elect to effect such redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Company so to elect to redeem
have occurred and (ii) an Opinion of Counsel qualified under the laws of the
relevant jurisdiction to the effect that the Company or the applicable Guarantor
or such successor Person, as the case may be, has or will become obligated to
pay such Additional Amounts as a result of such amendment or change.
7. Notice of Redemption. Notices of redemption shall be mailed by first
---------------------
class mail at least 30 but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at its registered address. Notices of
redemption may not be conditional. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state the portion of
the principal amount thereof to be redeemed.
8. Offers To Purchase. The Indenture provides that upon the occurrence of a
------------------
Change of Control or an Asset Sale and subject to further limitations contained
therein, the Company shall make an offer to purchase outstanding Notes in
accordance with the procedures set forth in the Indenture.
9. Registration Rights Agreement. The Holder of this Note is entitled to
-------------------------------
the benefits of the Registration Rights Agreement. Capitalized terms used in
this paragraph 9 and not otherwise defined have the meanings set forth in the
Registration Rights Agreement.
In the event that (i) within 90 days after the Issue Date, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been filed with the Commission, (ii) within 210 days after the Issue Date, the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, has not been declared effective, (iii) within 240 days after the
Issue Date, the Exchange Offer has not been consummated or (iv) after either the
Exchange Offer Registration Statement or the Shelf Registration Statement has
been declared effective, such Registration Statement thereafter ceases to be
effective or usable (subject, in the case of the Shelf Registration Statement,
to the exceptions set forth in the Registration Rights Agreement) in connection
with resales of the Initial Placement or Exchange Securities in accordance with
and during the periods specified in Sections 2(c)(iii) and 3(b)(ii) of the
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv),
A-1-6
a "Registration Default"), then liquidated damages ("Liquidated Damages") will
--------------------- ------------------
accrue on this Note from and including the date on which any such Registration
Default shall occur to but excluding the date on which all Registration Defaults
have been cured. Liquidated Damages will accrue at a rate equal to 0.50% per
annum of the aggregate principal amount of the Notes during the 90-day period
immediately following the occurrence of any Registration Default and shall
increase by 0.25% per annum for each subsequent 90-day period during which such
Registration Default continues, but in no event shall such Liquidated Damages
exceed 1.50% per annum.
10. Denominations, Transfer, Exchange. The Notes are in registered form
-----------------------------------
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes or portion of a Note selected for redemption,
or register the transfer of or exchange any Notes for a period of 15 days before
a mailing of notice of redemption.
11. Persons Deemed Owners. The registered Holder of this Note may be
-----------------------
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or interest
----------------
remains unclaimed for two years, the Trustee will pay the money back to the
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Company and the Trustee may,
-------------------------------------
without the consent of the Holders of any outstanding Notes, amend, waive or
supplement the Indenture or the Notes for certain specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies, maintaining
the qualification of the Indenture under the TIA, providing for the assumption
by a successor to the Company of its obligations to the Holders and making any
change that does not adversely affect the rights of any Holder in any material
respect. Other amendments and modifications of the Indenture or the Notes may be
made by the Company and the Trustee with the consent of the Holders of not less
than a majority of the aggregate principal amount of the outstanding Notes,
subject to certain exceptions requiring the consent of the Holders of at least
66 2/3% in aggregate principal amount of the outstanding Notes or the consent of
the Holders of the particular Notes to be affected.
14. Restrictive Covenants. The Indenture imposes certain limitations on the
---------------------
ability of Parent and its Restricted Subsidiaries to, among other things, incur
additional Indebtedness, pay dividends on, redeem or repurchase its Equity
Interests, make certain investments, sell assets, create restrictions on the
payment of dividends or other amounts to the Company from its Restricted
Subsidiaries, enter into transactions with Affiliates, create Liens, enter into
Sale and Leaseback Transactions or consolidate, merge or sell all or
substantially all of the assets of Parent and its Restricted Subsidiaries and
requires the Company to provide reports to Holders of the Notes. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to Section 4.06 of the Indenture, the Company must annually report to
the Trustee on compliance with such limitations.
A-1-7
15. Successor Corporation. When a successor corporation assumes all the
----------------------
obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article Five of the Indenture, the
predecessor corporation will, except as provided in Article Five, be released
from those obligations.
16. Defaults and Remedies. Events of Default are set forth in the
-----------------------
Indenture. If an Event of Default occurs and is continuing under this Indenture,
either the Trustee, by notice in writing to the Company, or the Holders of at
least (y) 25% in aggregate principal amount of the Notes then outstanding in the
case of any Event of Default arising under any of clauses (1) through (9) of
Section 6.01 and (z) a majority in principal amount of the Notes then
outstanding in the case of any Event of Default arising under clause (10) of
Section 6.01 may, in each case, by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration", and the Trustee at the request of such Holders shall, declare the
principal of and premium, if any, and accrued interest, if any, on the Notes to
be immediately due and payable, and upon such declaration of acceleration, such
principal, premium, if any, and accrued interest, if any, shall be immediately
due and payable; provided, however, that, notwithstanding the foregoing, if an
Event of Default specified in Section 6.01(7) occurs with respect to Parent or
the Company, the principal of and premium, if any, and accrued interest, if any,
on the Notes then outstanding shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
Notwithstanding the foregoing, if after such acceleration but before a
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of outstanding Notes may
rescind and annul such acceleration if:
(1) all Events of Default, other than nonpayment of principal,
premium, if any, or interest that has become due solely because of the
acceleration, have been cured or waived;
(2) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid;
(3) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and
A-1-8
(4) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.01(7), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default
has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal of or interest on the
Notes) if it determines that withholding notice is in their best interests.
17. Trustee Dealings with Company. The Trustee, in its individual or any
------------------------------
other capacity, may make loans to, accept deposits from and perform services for
the Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
18. No Recourse Against Others. No director, officer, employee,
------------------------------
incorporator, member of the Board of Directors or holder of Capital Stock of
Parent or of any Restricted Subsidiary, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees, the Security Documents or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability.
19. Discharge. The Company's obligations pursuant to the Indenture will be
---------
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Notes or upon the
irrevocable deposit with the Trustee of cash in U.S. Dollars, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient to
pay when due principal of and interest on the Notes to maturity or redemption,
as the case may be.
20. Guarantees. From and after the Issue Date, the Notes will be entitled
----------
to the benefits of certain Note Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
21. Authentication. This Note shall not be valid until the Trustee signs
--------------
the certificate of authentication on the other side of this Note.
22. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
A-1-9
23. Abbreviations. Customary abbreviations may be used in the name of a
-------------
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Attn: Xxxxxxx X. Xxxxx
Telephone: 00 0 0000 0000
Facsimile: 33 1 4918 4001
A-1-10
ASSIGNMENT
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint
--------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
------------------- -------------------------------
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-1-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.08 or Section 4.12 of the Indenture, check the
appropriate box:
? Section 4.08 ? Section 4.12
If you want to have only part of the Note purchased by the Company pursuant
to Section 4.08 or Section 4.12 of the Indenture, state the amount you elect to
have purchased:
$ ____________________________
(multiple of $1,000)
Date:
-------------------------
Your Signature: ___________________________________
(Sign exactly as your name appears
on the face of this Note)
---------------------------------
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
X-0-00
XXXXXXX X-0
-----------
[FORM OF UNRESTRICTED NOTE]
CROWN EUROPEAN HOLDINGS SA
[Insert Global Note Legend, if applicable]
[Insert Proceeds Sharing Agreement Legend, if applicable]
10 7/8% THIRD PRIORITY SENIOR SECURED NOTE DUE 2013
No. [ ] CUSIP No. [ ]
ISIN No. [ ]
Common Code No. [ ]
$ [ ]
CROWN EUROPEAN HOLDINGS SA, a French societe anonyme, as issuer (the
"Company"), for value received, promises to pay to [ ] or registered assigns the
-------
principal sum of [ ] on March 1, 2013.
Interest Payment Dates: March 1 and September 1, commencing September 1, 2003.
Record Dates: February 15 and August 15 (whether or not a Business Day).
Reference is made to the further provisions of this Note contained herein,
which will for all purposes have the same effect as if set forth at this place.
A-2-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually
or by facsimile by two of its duly authorized officers.
CROWN EUROPEAN HOLDINGS SA
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
A-2-2
Certificate of Authentication
This is one of the 10 7/8% Second Priority Senior Secured Notes due 2013
referred to in the within-mentioned
Indenture.
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------------------------------
Dated: [ ]
A-2-3
[FORM OF REVERSE OF UNRESTRICTED NOTE]
CROWN EUROPEAN HOLDINGS SA
10 7/8% THIRD PRIORITY SENIOR SECURED NOTE DUE 2013
1. Interest. CROWN EUROPEAN HOLDINGS SA, a French societe anonyme, as
--------
issuer (the "Company"), promises to pay interest on the principal amount set
-------
forth on the face hereof at a rate of 10.875% per annum. Interest hereon will
accrue from and including the most recent date to which interest has been paid
or, if no interest has been paid, from and including February 26, 2003 to but
excluding the date on which interest is paid. Interest shall be payable in
arrears on each March 1 and September 1, commencing September 1, 2003. Interest
will be computed on the basis of a 360-day year of twelve 30-day months and
actual days elapsed. The Company shall pay interest on overdue principal and on
overdue interest (to the full extent permitted by law) at the rate borne by the
Notes.
2. Method of Payment. The Company will pay interest hereon (except
-------------------
defaulted interest) to the Persons who are registered Holders at the close of
business on February 15 or August 15 next preceding the interest payment date
(whether or not a Business Day). Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company will pay principal and interest in
U.S. Dollars. Interest may be paid by check mailed to the Holder entitled
thereto at the address indicated on the register maintained by the Registrar for
the Notes.
3. Paying Agent and Registrar. Initially, Xxxxx Fargo Bank Minnesota,
----------------------------
National Association (the "Trustee") will act as a Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice. The Company
or any Affiliate thereof may act as Paying Agent or Registrar.
4. Indenture. The Company issued the Notes under an Indenture dated as of
---------
February 26, 2003 (the "Indenture") among the Company, the Guarantors and the
Trustee. This is one of an issue of Notes of the Company issued, or to be
issued, under the Indenture. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code xx.xx. 77aaa-77bbbb), as amended from time
to time. The Notes are subject to all such terms, and Holders are referred to
the Indenture and such Act for a statement of them. Capitalized and certain
other terms used herein and not otherwise defined have the meanings set forth in
the Indenture.
5. Optional Redemption.
-------------------
(a) On and after March 1, 2008, the Company may redeem the Notes, at its
option, in whole at any time or in part from time to time, at the following
redemption prices, expressed as percentages of the principal amount thereof,
plus accrued and unpaid interest, if any, to the Redemption Date, if redeemed
during the twelve-month period commencing on March 1 of any year set forth
below:
A-2-4
Year Percentage
---- ----------
2008............................................... 105.438%
2009............................................... 103.625%
2010............................................... 101.813%
2011 and thereafter................................ 100.000%
(b) In addition, on or prior to March 1, 2008, the Company may redeem the
Notes, at its option, in whole at any time or in part from time to time, at a
redemption price equal to 100% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Make-Whole Redemption Date, plus the Make-Whole
Premium (a "Make-Whole Redemption").
---------------------
(c) Notwithstanding the foregoing, on or prior to March 1, 2006, the
Company, on one or more occasions, may, at its option, redeem up to 35% in
aggregate principal amount of the Notes (including Additional Notes) originally
issued under the Indenture at a redemption price equal to 110.875% of their
principal amount, plus accrued and unpaid interest, if any, to the Redemption
Date, with the net cash proceeds of one or more Equity Offerings by Parent to
the extent that the net cash proceeds thereof are contributed to the common
equity capital of the Company or are used to subscribe from the Company shares
of Qualified Capital Stock of the Company; provided that (1) at least 65% in
aggregate principal amount of the Notes (including Additional Notes) originally
issued under the Indenture remain outstanding immediately after the occurrence
of each such redemption and (2) such redemption occurs within 90 days of the
date of the closing of any such Equity Offering.
6. Redemption for Changes in Withholding Tax. The Company may, at its
--------------------------------------------
option, redeem all, but not less than all, of the Notes then outstanding at a
redemption price equal to 100% of the principal amount of the Notes, plus
accrued and unpaid interest thereon to the Redemption Date. This redemption
applies only if as a result of any amendment to, or change in, the laws or
treaties (including any rulings or regulations promulgated thereunder) of France
or any other jurisdiction in which the Company or any Guarantor is organized or
is a resident for tax purposes or within or through which payment is made or any
political subdivision or taxing authority or agency thereof or therein (or, in
the case of Additional Amounts payable by a successor Person to the Company or a
Guarantor, of the jurisdiction in which such successor Person is organized or is
a resident for tax purposes or any political subdivision or taxing authority or
agency thereof or therein) or any amendment to or change in any official
position concerning the interpretation, administration or application of such
laws, treaties, rulings or regulations (including a holding by a court of
competent jurisdiction), which amendment or change is effective on or after the
Issue Date (or, in the case of Additional Amounts payable by a successor Person
to the Company or a Guarantor, the date on which such successor Person became
such pursuant to applicable provisions of this Indenture), the Company or a
Guarantor has become or will become obligated to pay material Additional Amounts
(pursuant to Section 4.16 of the Indenture) on the next date on which any amount
would be payable with respect to the Notes and the Company or such Guarantor
determines in good faith that such obligation cannot be avoided (including,
without limitation, by changing the jurisdiction from which or through which
payment is made) by the use of reasonable measures available to the Company or
such Guarantor.
A-2-5
No such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company or a Guarantor would be obligated to pay such
Additional Amounts were a payment in respect of the Notes then due or later than
180 days after such amendment or change referred to in the preceding paragraph.
At the time such notice of redemption is given, such obligation to pay such
Additional Amounts must remain in effect. Immediately prior to the mailing of
any notice of redemption described above, the Company shall deliver to the
Trustee (i) an Officers' Certificate stating that the Company is entitled to
elect to effect such redemption and setting forth a statement of facts showing
that the conditions precedent to the right of the Company so to elect to redeem
have occurred and (ii) an Opinion of Counsel qualified under the laws of the
relevant jurisdiction to the effect that the Company or the applicable Guarantor
or such successor Person, as the case may be, has or will become obligated to
pay such Additional Amounts as a result of such amendment or change.
7. Notice of Redemption. Notices of redemption shall be mailed by first
---------------------
class mail at least 30 but not more than 60 days before the Redemption Date to
each Holder of Notes to be redeemed at its registered address. Notices of
redemption may not be conditional. If any Note is to be redeemed in part only,
the notice of redemption that relates to such Note shall state the portion of
the principal amount thereof to be redeemed.
8. Offers To Purchase. The Indenture provides that upon the occurrence of a
------------------
Change of Control or an Asset Sale and subject to further limitations contained
therein, the Company shall make an offer to purchase outstanding Notes in
accordance with the procedures set forth in the Indenture.
9. Denominations, Transfer, Exchange. The Notes are in registered form
-----------------------------------
without coupons in denominations of $1,000 and integral multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Notes or portion of a Note selected for redemption,
or register the transfer of or exchange any Notes for a period of 15 days before
a mailing of notice of redemption.
10. Persons Deemed Owners. The registered Holder of this Note may be
-----------------------
treated as the owner of this Note for all purposes.
A-2-6
11. Unclaimed Money. If money for the payment of principal or interest
----------------
remains unclaimed for two years, the Trustee will pay the money back to the
Company at its written request. After that, Holders entitled to the money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another Person.
12. Amendment, Supplement, Waiver, Etc. The Company and the Trustee may,
-------------------------------------
without the consent of the Holders of any outstanding Notes, amend, waive or
supplement the Indenture or the Notes for certain specified purposes, including,
among other things, curing ambiguities, defects or inconsistencies, maintaining
the qualification of the Indenture under the TIA providing for the assumption by
a successor to the Company of its obligations to the Holders and making any
change that does not adversely affect the rights of any Holder in any material
respect. Other amendments and modifications of the Indenture or the Notes may be
made by the Company and the Trustee with the consent of the Holders of not less
than a majority of the aggregate principal amount of the outstanding Notes,
subject to certain exceptions requiring the consent of the Holders of at least
66 2/3% in aggregate principal amount of the outstanding Notes or the consent of
the Holders of the particular Notes to be affected.
13. Restrictive Covenants. The Indenture imposes certain limitations on the
---------------------
ability of Parent and its Restricted Subsidiaries to, among other things, incur
additional Indebtedness, pay dividends on, redeem or repurchase its Equity
Interests, make certain investments, sell assets, create restrictions on the
payment of dividends or other amounts to the Company from its Restricted
Subsidiaries, enter into transactions with Affiliates, create Liens, enter into
Sale and Leaseback Transactions or consolidate, merge or sell all or
substantially all of the assets of Parent and its Restricted Subsidiaries and
requires the Company to provide reports to Holders of the Notes. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to Section 4.06 of the Indenture, the Company must annually report to
the Trustee on compliance with such limitations.
14. Successor Corporation. When a successor corporation assumes all th
----------------------
obligations of its predecessor under the Notes and the Indenture and the
transaction complies with the terms of Article Five of the Indenture, the
predecessor corporation will, except as provided in Article Five, be released
from those obligations.
15. Defaults and Remedies. Events of Default are set forth in the
-----------------------
Indenture. If an Event of Default occurs and is continuing under this Indenture,
either the Trustee, by notice in writing to the Company, or the Holders of at
least (y) 25% in aggregate principal amount of the Notes then outstanding in the
case of any Event of Default arising under any of clauses (1) through (9) of
Section 6.01 and (z) a majority in principal amount of the Notes then
outstanding in the case of any Event of Default arising under clause (10) of
Section 6.01 may, in each case, by notice in writing to the Company and the
Trustee specifying the respective Event of Default and that it is a "notice of
acceleration", and the Trustee at the request of such Holders shall, declare the
principal of and premium, if any, and accrued interest, if any, on the Notes to
be immediately due and payable, and upon such declaration of acceleration, such
principal, premium, if any, and accrued interest, if any, shall be immediately
due and payable; provided, however, that, notwithstanding the foregoing, if an
Event of Default specified in Section 6.01(7) occurs with respect to Parent, or
the Company, the principal of and premium, if any, and accrued interest, if any,
on the Notes then outstanding shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
A-2-7
Notwithstanding the foregoing, if after such acceleration but before a
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of outstanding Notes may
rescind and annul such acceleration if:
(1) all Events of Default, other than nonpayment of principal,
premium, if any, or interest that has become due solely because of the
acceleration, have been cured or waived;
(2) to the extent the payment of such interest is lawful, interest on
overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid;
(3) the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee for its expenses, disbursements and advances; and
(4) in the event of the cure or waiver of an Event of Default of the
type described in Section 6.01(7), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default
has been cured or waived.
No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
Holders may not enforce the Indenture or the Notes except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
a majority in principal amount of the then outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default or Event of Default (except a Default
or Event of Default relating to the payment of principal of or interest on the
Notes) if it determines that withholding notice is in their best interests.
16. Trustee Dealings with Company. The Trustee, in its individual or any
------------------------------
other capacity, may make loans to, accept deposits from and perform services for
the Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
17. No Recourse Against Others. No director, officer, employee,
------------------------------
incorporator, member of the Board of Directors or holder of Capital Stock of
Parent or of any Restricted Subsidiary, as such, shall have any liability for
any obligations of the Company or the Guarantors under the Notes, this
Indenture, the Note Guarantees, the Security Documents or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Notes by accepting a Note waives and releases all such liability.
A-2-8
18. Discharge. The Company's obligations pursuant to the Indenture will be
---------
discharged, except for obligations pursuant to certain sections thereof, subject
to the terms of the Indenture, upon the payment of all the Notes or upon the
irrevocable deposit with the Trustee of cash in U.S. Dollars, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient to
pay when due principal of and interest on the Notes to maturity or redemption,
as the case may be.
19. Guarantees. From and after the Issue Date, the Notes will be entitled
----------
to the benefits of certain Note Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
20. Authentication. This Note shall not be valid until the Trustee signs
--------------
the certificate of authentication on the other side of this Note.
21. Governing Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
22. Abbreviations. Customary abbreviations may be used in the name of a
-------------
Holder or an assignee, such as: TEN COM (= tenants in common), TENANT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to
Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
Attn: Xxxxxxx X. Xxxxx
Telephone: 00 0 0000 0000
Facsimile: 33 1 4918 4001
A-2-9
ASSIGNMENT
I or we assign and transfer this Note to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. number)
--------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee)
and irrevocably appoint
--------------------------------------------------------
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
Date: Your Signature:
--------------------- -------------------------------
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-2-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have all or any part of this Note purchased by the
Company pursuant to Section 4.08 or Section 4.12 of the Indenture, check the
appropriate box:
[ ] Section 4.08 [ ] Section 4.12
If you want to have only part of the Note purchased by the Company pursuant
to Section 4.08 or Section 4.12 of the Indenture, state the amount you elect to
have purchased:
$
--------------------------------
(multiple of $1,000)
Date:
----------------------------
Your Signature: ___________________________________
(Sign exactly as your name appears
on the face of this Note)
----------------------------------
Signature Guaranteed
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include membership
or participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
A-2-11
EXHIBIT B
---------
[FORM OF LEGEND FOR RESTRICTED SECURITIES]
Any Restricted Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Global Note) in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS
NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT, or (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "IAI");
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE ISSUER, (B) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OF REGULATION S UNDER THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN
BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE ISSUER, IF THE ISSUER SO REQUESTS THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), OR (G)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
B-1
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
ADDITIONALLY, EACH HOLDER AGREES THAT IT WILL NOT OFFER OR SELL THIS NOTE,
DIRECTLY OR INDIRECTLY, TO THE PUBLIC IN THE REPUBLIC OF FRANCE, EXCEPT TO
QUALIFIED INVESTORS (INVESTISSEURS QUALIFIES) AS DEFINED IN AND IN
ACCORDANCE WITH ARTICLES L.411-1 AND L.411-2 OF THE FRENCH CODE MONETAIRE
ET FINANCIER AND FRENCH DECREE NO. 98-880 DATED OCTOBER 1, 1998.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE
MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE GOVERNING THIS NOTE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
B-2
EXHIBIT C
---------
[FORM OF LEGEND FOR GLOBAL NOTE]
Any Global Note authenticated and delivered hereunder shall bear a legend
(which would be in addition to any other legends required in the case of a
Restricted Note) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A
DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
C-1
EXHIBIT D
---------
FORM OF CERTIFICATE OF TRANSFER
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
[Registrar address block]
Re: 10 7/8% Third Priority Senior Secured Notes due 2013
(CUSIP _____________)
(ISIN _______________)
(Common Code________)
Reference is hereby made to the Indenture, dated as of February 26, 2003
(the "Indenture"), by and among Crown European Holdings SA, as issuer (the
---------
"Company"), the Guarantors and Xxxxx Fargo Bank Minnesota, National Association,
-------
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
______________ (the "Transferor") owns and proposes to transfer the Note[s]
----------
or interest in such Note[s] specified in Annex A hereto, in the principal amount
of ___________ in such Note[s] or interests (the "Transfer"), to __________ (the
--------
"Transferee"), as further specified in Annex A hereto. In connection with the
----------
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest in a Rule
-------------------------------------------------------------------------
144A Global Note or a Physical Note pursuant to Rule 144A. The Transfer is being
---------------------------------------------------------
effected pursuant to and in accordance with Rule 144A under the United States
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, the
--------------
Transferor hereby further certifies that the beneficial interest or Physical
Note is being transferred to a Person that the Transferor reasonably believed
and believes is purchasing the beneficial interest or Physical Note for its own
account, or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a transaction
meeting the requirements of Rule 144A and such Transfer is in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Physical Note will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Rule 144A Global Note and/or the Physical Note and in the
Indenture and the Securities Act.
D-1
2. |_| Check if Transferee will take delivery of a beneficial interest in a
-------------------------------------------------------------------------
Regulation S Global Note or a Physical Note pursuant to Regulation S. The
---------------------------------------------------------------------------
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer is not being made to a person in the United
States and (x) at the time the buy order was originated, the Transferee was
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an Initial Purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Physical Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Physical Note and in the Indenture and
the Securities Act.
3. |_| Check and complete if Transferee will take delivery of a beneficial
-------------------------------------------------------------------------
interest in the Global Note or a Physical Note pursuant to any provision of the
--------------------------------------------------------------------------------
Securities Act other than Rule 144A or Regulation S. The Transfer is being
-------------------------------------------------------
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Physical Notes and pursuant
to and in accordance with the Securities Act and any applicable blue sky
securities laws of any state of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a Subsidiary
thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
D-2
or
(d) |_| such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of
the Securities Act other than Rule 144A, Rule 144 or Rule 904, and the
Transferor hereby further certifies that it has not engaged in any general
solicitation within the meaning of Regulation D under the Securities Act
and the Transfer complies with the transfer restrictions applicable to
beneficial interests in a Restricted Global Note or Restricted Physical
Notes and the requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in the form of
Exhibit F to the Indenture and (2) if such Transfer is in respect of a
principal amount of Notes at the time of transfer of less than $250,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of
which the Transferor has attached to this certification), to the effect
that such Transfer is in compliance with the Securities Act. Upon
consummation of the proposed transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Physical Note will be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Global Note and/or the Physical Notes and in the
Indenture and the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or an Unrestricted Physical Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any state of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Physical Note
will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Physical Notes and in the Indenture.
(b) |_| Check if Transfer is pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Rule 903 or Rule 904 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Physical
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Physical Notes and in the Indenture.
D-3
(c) |_| Check if Transfer is pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144, Rule 903 or
Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or Physical
Note will not be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes or Restricted
Physical Notes and in the Indenture.
(d) |_| Check if Transfer is pursuant to an Effective Registration
Statement. (i) The Transfer is being effected pursuant to and in compliance with
an effective registration statement under the Securities Act and any applicable
blue sky securities laws of any State of the United States and in compliance
with the prospectus delivery requirements of the Securities Act and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act.
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Physical Note will not be
subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the Restricted Global Notes or Restricted Physical Notes and
in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
----------------------------------------
[Insert Name of Transferor]
By:
----------------------------------------
Name:
Title:
Dated:
---------------------------
D-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE]
(a) |_| a beneficial interest in a:
(i) |_| Rule 144A Global Note (CUSIP ______) (ISIN ______), or
(ii) |_| Regulation S Global Note (CUSIP ______) (ISIN ______), or
(b) |_| a Restricted Physical Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| Rule 144A Global Note (CUSIP _______) (ISIN ______) (Common
Code ___________), or
(ii) |_| Regulation S Global Note (CUSIP ______)(ISIN ______) (Common
Code ___________), or
(iii) |_| Unrestricted Global Note (CUSIP ______) (ISIN ______)
(Common Code ___________), or
(b) |_| a Restricted Physical Note; or
(c) |_| an Unrestricted Physical Note,
in accordance with the terms of the Indenture.
D-5
EXHIBIT E
---------
FORM OF CERTIFICATE OF EXCHANGE
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
[Registrar address block]
Re: 10.875% Third Priority Senior Secured Notes due 2013
(CUSIP______________)
(ISIN _______________)
(Common Code ________)
Reference is hereby made to the Indenture, dated as of February 26, 2003
(the "Indenture"), by and among Crown European Holdings SA, as issuer (the
---------
"Company"), the Guarantors and Xxxxx Fargo Bank Minnesota, National Association,
-------
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
____________ (the "Owner") owns and proposes to exchange the Note[s] or
-----
interest in such Note[s] specified herein, in the principal amount of
____________ in such Note[s] or interests (the "Exchange"). In connection with
--------
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Physical Notes or Beneficial Interests in a Restricted
Global Note for Unrestricted Physical Notes or Beneficial Interests in an
Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a Restricted
-------------------------------------------------------------------
Global Note to beneficial interest in an Unrestricted Global Note. In connection
-----------------------------------------------------------------
with the Exchange of the Owner's beneficial interest in a Restricted Global Note
for a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
---------------
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
E-1
(b) |_| Check if Exchange is from Restricted Physical Note to beneficial
-------------------------------------------------------------------
interest in an Unrestricted Global Note. In connection with the Owner's Exchange
---------------------------------------
of a Restricted Physical Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Physical Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the beneficial interest is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) |_| Check if Exchange is from Restricted Physical Note to Unrestricted
-------------------------------------------------------------------
Physical Note. In connection with the Owner's Exchange of a Restricted Physical
-------------
Note for an Unrestricted Physical Note, the Owner hereby certifies (i) the
Unrestricted Physical Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Physical Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained
in the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted Physical
Note is being acquired in compliance with any applicable blue sky securities
laws of any state of the United States.
2. Exchange of Restricted Physical Notes for Restricted Physical Notes or
Beneficial Interests in Restricted Global Notes.
(a) |_| Check if Exchange is from Restricted Physical Note to beneficial
-------------------------------------------------------------------
interest in a Restricted Global Note. In connection with the Exchange of the
-------------------------------------
Owner's Restricted Physical Note for a beneficial interest in the [CHECK ONE] __
Rule 144A Global Note, __Regulation S Global Note with an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer and (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
E-2
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
---------------------------------------
[Insert Name of Owner]
By:
---------------------------------------
Name:
Title:
Dated: ________________
E-3
EXHIBIT F
---------
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Crown European Holdings SA
Le Colisee I
Xxx Xxxxxxxxx
00000 Xxxxx Xxxxx 00
Xxxxxx
[Registrar address block]
Re: 10 7/8% Third Priority Senior Secured Notes due 2013
(CUSIP______________)
(ISIN _______________)
(Common Code ________)
Reference is hereby made to the Indenture, dated as of February 26, 2003
(the "Indenture"), by and among Crown European Holdings SA, as issuer (the
---------
"Company"), the Guarantors and Xxxxx Fargo Bank Minnesota, National Association,
-------
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
In connection with our proposed purchase of ____________ aggregate
principal amount of:
(a) |_| a beneficial interest in a Global Note, or
(b) |_| a Physical Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
--------------
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we will do so only (A) to the Company or any Subsidiary thereof,
F-1
(B) in accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (c) to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to you and to the Company a
signed letter substantially in the form of this letter and, if such transfer is
in respect of a principal amount of Notes, at the time of transfer, of less than
$250,000, an Opinion of Counsel in form reasonably acceptable to the Company to
the effect that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the provisions of Rule 144(k) under the
Securities Act or (F) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Physical Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (E) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
----------------------------------------
[Insert Name of Accredited Owner]
By:
-----------------------------------------
Name:
Title:
Dated: ________________
F-2
EXHIBIT G
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GUARANTEES
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Each of the undersigned (the "Guarantors") hereby jointly and severally
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unconditionally guarantees, to the extent set forth in the Indenture dated as of
February 26, 2003 by and among Crown European Holdings SA, a French societe
anonyme, as issuer (the "Company"), the Guarantors and Xxxxx Fargo Bank
-------
Minnesota, National Association, as Trustee (as amended, restated or
supplemented from time to time, the "Indenture"), and subject to the Indenture,
---------
(a) the due and punctual payment of the principal of, and premium, if any, and
interest on the Notes, when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise, the due and punctual payment
of interest on overdue principal of, and premium and, to the extent permitted by
law, interest, and the due and punctual performance of all other obligations of
the Company to the Noteholders or the Trustee, all in accordance with the terms
set forth in Article Ten of the Indenture, and (b) in case of any extension of
time of payment or renewal of any Notes or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise.
The obligations of the Guarantors to the Noteholders and to the Trustee
pursuant to this Guarantee and the Indenture are expressly set forth in Article
Ten of the Indenture, and reference is hereby made to the Indenture for the
precise terms and limitations of this Guarantee. Each Holder of the Note to
which this Guarantee is endorsed, by accepting such Note, agrees to and shall be
bound by such provisions.
[Signatures on Following Pages]
EXHIBIT H
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[FORM OF EURO INTERCREDITOR AGREEMENT]
G-1
EXHIBIT I
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[FORM OF PROCEEDS SHARING AGREEMENT]
G-1
EXHIBIT J
[FORM OF SHARED PLEDGE AGREEMENT]
G-1
EXHIBIT K
---------
[FORM OF U.S. INTERCREDITOR AGREEMENT]
G-1
EXHIBIT L
---------
[FORM OF U.S. SECURITY AGREEMENT]
G-1
EXHIBIT M
---------
[FORM OF CEH EXCESS PROCEEDS ACCOUNT AGREEMENT]
G-1
EXHIBIT N
---------
[FORM OF CEH PLEDGE AGREEMENT]
G-1
EXHIBIT O
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[FORM OF FINANCE PLC PROCEEDS ACCOUNT AGREEMENT]
