Exhibit 4.l
FIRST AMENDED AND RESTATED
EURO INTERCREDITOR AND
COLLATERAL AGENCY
AGREEMENT
This FIRST AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (as amended, amended
and restated or otherwise modified from time to time in accordance
with the terms hereof, herein called this “ Agreement
”) is dated as of February 26, 2003 and amended and restated
as of September 1, 2004 among (i) CITIBANK INTERNATIONAL PLC, as
U.K. administrative agent (in such capacity, together with its
successors and assigns, the “ Bank Agent ”) for
the New Term Euro Lenders and the Revolving Euro Lenders from time
to time party to the Credit Agreement (as defined below), (ii)
WELLS FARGO BANK, N.A., as trustee (in such capacity, together with
its successors and assigns, the “ First Priority Notes
Trustee ”) for the holders of the First Priority Notes
(as defined below) issued under the First Priority Notes Indenture
(as defined below), (iii) WELLS FARGO BANK, N.A. (as successor by
consolidation to Wells Fargo Bank Minnesota, National Association),
as trustee (in such capacity, together with its successors and
assigns, the “ Second Priority Notes Trustee ”)
for the holders of Second Priority Notes (as defined below) issued
under the Second Priority Notes Indenture (as defined below), (iv)
WELLS FARGO BANK, N.A. (as successor by consolidation to Wells
Fargo Bank Minnesota, National Association), as trustee (in such
capacity, together with its successors and assigns, the “
Third Priority Notes Trustee ”) for the holders of
Third Priority Notes (as defined below) issued under the Third
Priority Notes Indenture (as defined below), (v) CITICORP TRUSTEE
COMPANY LIMITED, as Euro Collateral Agent (as defined below), (vi)
Crown European Holdings SA (“ Crown Euroco ”),
(vii) the subsidiaries of Crown Euroco identified on Schedule
1 hereto and (viii) the other persons who may become parties to
this Agreement from time to time pursuant to and in accordance with
Section 8 of this Agreement.
R E C I T A
L S
WHEREAS, on February 26, 2003 (the
“ Original Effective Date ”), the Bank Agent,
the Second Priority Notes Trustee, the Third Priority Notes
Trustee, the Euro Collateral Agent and the Euro Pledgors entered
into the Euro Intercreditor and Collateral Agency Agreement (the
“ Original Agreement ”).
WHEREAS, on the Original Effective
Date, CROWN Americas, Inc. (f/k/a Crown Cork & Seal Americas,
Inc.) (“ Crown Usco ”), Crown Euroco, the
subsidiary borrowers named therein, Crown Holdings, Inc. (“
Crown Holdings ”), Crown International Holdings, Inc.
and Crown Cork & Seal Company, Inc. (collectively, the “
Loan Parties ”) entered into that certain credit
agreement (the “ Original Credit Agreement ”)
with the lenders named therein and Citicorp North America, Inc., as
administrative agent (the “ Administrative Agent
”) and the Bank Agent.
WHEREAS, on the Original Effective
Date, Crown Euroco issued $1.085 billion in aggregate principal
amount of Second Priority Dollar Notes and €285 million in
aggregate principal amount of Second Priority Euro Notes, in each
case under an Indenture dated as of the Original Effective Date
among Crown Euroco, the guarantors named therein and the Second
Priority Notes Trustee (as amended, amended and restated,
supplemented, refinanced, replaced or otherwise modified from time
to time as permitted by the Credit Agreement, the “ Second
Priority Notes Indenture ”).
WHEREAS, on the Original Effective
Date, Crown Euroco issued $725 million in aggregate principal
amount of Third Priority Notes under an Indenture dated as of the
Original Effective Date between Crown Euroco, the guarantors named
therein and the Third Priority Notes Trustee (as amended, amended
and restated, supplemented, refinanced, replaced or otherwise
modified from time to time as permitted by the Credit Agreement,
the “ Third Priority Notes Indenture
”).
WHEREAS, on the date hereof, Crown
Euroco intends to issue €350.0 million of First Priority
Notes under an Indenture dated as of the date hereof among Crown
Euroco, the guarantors named therein and the First Priority Notes
Trustee (as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to time as
permitted by the Credit Agreement, the “ First Priority
Notes Indenture ”), the proceeds of which shall be used
(together with the proceeds of the Loans under the Credit
Agreement) to refinance (the “ Refinancing ”) in
full all outstanding Term B Loans (as defined in the Original
Credit Agreement) and terminate the Obligations and Commitments
(each as defined in the Original Credit Agreement) under the
Original Credit Agreement.
WHEREAS, pursuant to the terms
hereof, on the date hereof, Crown Euroco represents to the Euro
Collateral Agent, the First Priority Notes Trustee, the Second
Priority Notes Trustee and the Third Priority Notes Trustee, that
the issuance of the First Priority Notes is permitted by the Second
Priority Notes Indenture and the Third Priority Notes Indenture and
that no consents or approvals are required thereunder.
WHEREAS, simultaneously with the
issuance of the First Priority Notes, the Loan Parties intend to
enter into a new senior secured credit agreement dated as of the
date hereof (as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to time, the
“ Credit Agreement ”, which term shall also
include and refer to any increase in the amount of indebtedness
under the Credit Agreement to the extent permitted by the First
Priority Notes Indenture, the Second Priority Notes Indenture and
the Third Priority Notes Indenture and any refinancing or
replacement of the Credit Agreement or one or more successor or
replacement facilities whether or not with a different group of
agents or lenders and whether or not with different obligors upon
the Bank Agent’s acknowledgment of the termination of the
predecessor Credit Agreement). The Bank Agent under this Agreement
is agent for the New Term Euro Lenders and the Revolving Euro
Lenders (each as defined in the
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Credit Agreement) only from time to time under
the Credit Agreement (the “ Lenders ”) (it being
understood that the Term B Dollar Lenders and Revolving Dollar
Lenders (each as defined in the Credit Agreement) under the Credit
Agreement shall have no rights and obligations under this
Agreement).
WHEREAS, pursuant to the terms
hereof, on the date hereof, Crown Euroco represents to the Euro
Collateral Agent, the First Priority Notes Trustee, the Second
Priority Notes Trustee and the Third Priority Notes Trustee, that
the entering into of the Credit Agreement is permitted by the
Second Priority Notes Indenture and the Third Priority Notes
Indenture and that no consents or approvals are required
thereunder.
WHEREAS, on or after the Original
Effective Date, Crown Euroco, Crown Développement SNC (now
known as Crown Développement SAS after giving effect to its
change of corporate form on January 28, 2004) (“ Crown
SAS ”) and certain non-U.S. Subsidiaries of Crown Euroco
set forth on Schedule 1 hereto (collectively, and together
with any other subsidiaries which are required by one or more
Financing Documents to become “Euro Pledgors,” the
“ Euro Pledgors ”) executed and delivered to the
Euro Collateral Agent the Euro Security Documents.
WHEREAS, it is understood and
acknowledged that only Bank Indebtedness (as defined below) will be
secured by the Additional Bank Collateral (as defined
below).
WHEREAS, it is contemplated that, to
the extent permitted by the Credit Agreement, Crown SAS, Crown
Euroco or any of its subsidiaries may from time to time enter into
one or more Bank Related Hedging Agreements (as defined below) with
any counterparty that is the Bank Agent or a Lender or Affiliate
thereof or any other person permitted under the Credit Agreement at
the time such Bank Related Hedging Agreement was entered into
(individually, a “ Bank Related Hedging Exchanger
” and, collectively, the “ Bank Related Hedging
Exchangers ”) and it is desired that the obligations of
Crown SAS, Crown Euroco or any of its subsidiaries under such Bank
Related Hedging Agreements, including the obligation to make
payments in the event of early termination thereunder (all such
obligations being the “ Bank Related Hedging
Obligations ”), be secured by the Euro Collateral
pursuant to the Euro Security Documents; provided that for
any Bank Related Hedging Exchanger to receive the benefit of such
security, it shall execute and deliver to the Euro Collateral Agent
an acknowledgment to this Agreement (in the form of Annex 1
attached hereto) agreeing to be bound by the terms hereof at any
time prior to the payment in full of First Priority
Indebtedness.
WHEREAS, it is contemplated that, to
the extent permitted by the Credit Agreement, Crown SAS, Crown
Euroco or any of its subsidiaries may from time to time enter into
one or more Bank Related Cash Management Agreements (as defined
below) with any counterparty that was the Bank Agent or a Lender or
Affiliate thereof or any other person permitted under the Credit
Agreement at the time such Bank Related Cash Management Agreement
was entered into (individually, a “ Bank Related Cash
Management Exchanger ” and, collectively, the
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“ Bank Related Cash Management
Exchangers ”) and it is desired that the obligations of
Crown SAS, Crown Euroco or any of its subsidiaries under such Bank
Related Cash Management Agreements, including the obligation to
make payments in the event of early termination thereunder (all
such obligations being the “ Bank Related Cash Management
Obligations ”), be secured by the Euro Collateral
pursuant to the Euro Security Documents; provided that for
any Bank Related Cash Management Exchanger to receive the benefit
of such security, it shall execute and deliver to the Euro
Collateral Agent an acknowledgment to this Agreement (in the form
of Annex 2 attached hereto) agreeing to be bound by the
terms hereof at any time prior to the payment in full of First
Priority Indebtedness.
WHEREAS, it is contemplated that,
from time to time, to the extent permitted by the Credit Agreement,
Crown Euroco may incur certain Additional First Priority Bank
Indebtedness (as defined below) pursuant to the applicable Credit
Documents (as defined below), which Additional First Priority Bank
Indebtedness will be secured by the Euro Collateral pursuant to the
Euro Security Documents and have the priority set forth
herein.
WHEREAS, it is contemplated that,
from time to time, to the extent permitted by the Credit Agreement,
the First Priority Notes Indenture, the Second Priority Notes
Indenture and the Third Priority Notes Indenture, any Euro
Permitted Issuer may issue certain Additional First Priority
Capital Markets Indebtedness (as defined below) pursuant to the
applicable Additional First Priority Capital Markets Indebtedness
Documents, which Additional First Priority Capital Markets
Indebtedness will be secured by the Euro Collateral pursuant to the
Euro Security Documents and have the priority set forth herein;
provided that for any holder of any Additional First
Priority Capital Markets Indebtedness to receive the benefit of
such security, it shall cause its Additional First Priority Capital
Markets Indebtedness Representative to execute and deliver to the
Euro Collateral Agent an acknowledgment to this Agreement (in the
form of Annex 3 attached hereto) agreeing to be bound by the
terms hereof.
WHEREAS, it is contemplated that,
from time to time, to the extent permitted by the Credit Agreement,
the First Priority Notes Indenture, the Second Priority Notes
Indenture and the Third Priority Notes Indenture, any Euro
Permitted Issuer may issue certain Additional Second Priority
Indebtedness (as defined below), which Additional Second Priority
Indebtedness will be secured by the Euro Collateral pursuant to the
Euro Security Documents and have the priority set forth herein;
provided that for any holder of any Additional Second
Priority Indebtedness to receive the benefit of such security, it
shall cause its Additional Second Priority Indebtedness
Representative to execute and deliver to the Euro Collateral Agent
an acknowledgment to this Agreement (in the form of Annex 4
attached hereto) agreeing to be bound by the terms
hereof.
WHEREAS, it is contemplated that,
from time to time, to the extent permitted by the Credit Agreement,
the First Priority Notes Indenture, the Second Priority Notes
Indenture and the Third Priority Notes Indenture, any Euro
Permitted Issuer may issue certain Additional
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Third Priority Indebtedness (as defined below),
which Additional Third Priority Indebtedness will be secured by the
Euro Collateral pursuant to the Euro Security Documents and have
the priority set forth herein; provided that for any holder
of any Additional Third Priority Indebtedness to receive the
benefit of such security, it shall cause its Additional Third
Priority Indebtedness Representative to execute and deliver to the
Euro Collateral Agent an acknowledgment to this Agreement (in the
form of Annex 5 attached hereto) agreeing to be bound by the
terms hereof.
WHEREAS, (a) the First Priority
Notes Trustee (for its benefit and for the benefit of the
respective holders of the First Priority Notes), the Second
Priority Notes Trustee (for its benefit and for the benefit of the
respective holders of the Second Priority Notes), the Bank Agent
(for its benefit and for the benefit of the Euro Collateral Agent,
U.K. Administrative Agent and the Lenders) and the Third Priority
Notes Trustee (for its benefit and for the benefit of the holders
of the Third Priority Notes), (b) in the event any Bank Related
Hedging Obligations are to be secured by the Euro Security
Documents, each Bank Related Hedging Exchanger party to any Bank
Related Hedging Agreement, (c) in the event any Bank Related Cash
Management Obligations are to be secured by the Euro Security
Documents, each Bank Related Cash Management Exchanger party to any
Bank Related Cash Management Agreement, (d) in the event any
obligations in respect of Additional First Priority Bank
Indebtedness are to be secured by the Euro Security Documents, the
Bank Agent or the Administrative Agent in respect of such
Additional First Priority Bank Indebtedness (for its benefit and
for the benefit of the Lenders of such Additional First Priority
Bank Indebtedness), (e) in the event any obligations in respect of
Additional First Priority Capital Markets Indebtedness are to be
secured by the Euro Security Documents, the Additional First
Priority Capital Markets Indebtedness Representative in respect of
such Additional First Priority Capital Indebtedness (for its
benefit and for the benefit of the holders of such Additional First
Priority Capital Markets Indebtedness), (f) in the event any
obligations in respect of any Additional Second Priority
Indebtedness are to be secured by the Euro Security Documents, the
Additional Second Priority Indebtedness Representative in respect
of such Additional Second Priority Indebtedness (for its benefit
and for the benefit of the holders of such Additional Second
Priority Indebtedness) and (g) in the event any obligations in
respect of any Additional Third Priority Indebtedness are to be
secured by the Euro Security Documents, the Additional Third
Priority Indebtedness Representative in respect of such Additional
Third Priority Indebtedness (for its benefit and for the benefit of
the holders of such Additional Third Priority Indebtedness) desire
to set forth (i) certain additional provisions regarding the
appointment, duties and responsibilities of the Euro Collateral
Agent and to set forth certain other provisions concerning the
obligations of the Euro Pledgors to the Euro Secured Parties under
the agreements referred to in the foregoing recitals and (ii) their
agreement as to decisions relating to the exercise of remedies
under the Euro Security Documents and certain limitations on the
exercise of such remedies.
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WHEREAS, pursuant to Section 10(b)
of the Original Agreement, the parties hereto are entering into
this Agreement in order to amend and restate the Original Agreement
to add appropriate references to the Credit Agreement and the First
Priority Notes.
A G R E E M
E N T
NOW, THEREFORE, the parties hereto
agree as follows:
Section 1. Definitions .
The following capitalized terms used
herein and not otherwise defined herein shall have the definitions
set forth below. Terms not defined herein shall have the meanings
ascribed to them in the Credit Agreement.
“ Additional Bank
Collateral ” means the Additional Euro Stock Collateral,
the Additional Cash Collateral and the Additional Subsidiary
Borrower Collateral pledged to the Euro Collateral Agent for the
benefit of the New Term Euro Lenders and the Revolving Euro Lenders
under the Credit Agreement, any Bank Related Hedging Exchanger and
any Bank Related Cash Management Exchanger.
“ Additional Euro Stock
Collateral ” means the capital stock of subsidiaries
owned by each Euro Pledgor and pledged to the Euro Collateral Agent
for the benefit of Bank Indebtedness only.
“ Additional First Priority
Bank Indebtedness ” means New Term Euro Loans (as defined
in the Credit Agreement) incurred by Crown Euroco pursuant to the
Credit Agreement, which indebtedness is secured by a first priority
Lien in the manner described herein on the Euro
Collateral.
“ Additional First Priority
Capital Markets Indebtedness ” means any unsubordinated
indebtedness issued by a Euro Permitted Issuer after the date
hereof and not owed to Crown Holdings or any of its subsidiaries
(other than Additional First Priority Bank Indebtedness), to the
extent permitted to be incurred by the Credit Agreement, the First
Priority Notes Indenture, the Second Priority Notes Indenture and
the Third Priority Notes Indenture, which indebtedness is secured
by a first priority Lien in the manner described herein on the Euro
Collateral.
“ Additional First Priority
Capital Markets Indebtedness Documents ” means any
indenture, debenture, note, guaranty, purchase agreement or other
document executed by a Euro Permitted Issuer and its Subsidiaries
in connection with the issuance of any such Additional First
Priority Capital Markets Indebtedness.
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“ Additional First Priority
Capital Markets Indebtedness Representative ” means any
trustee or similar representative of the holders of any Additional
First Priority Capital Markets Indebtedness.
“ Additional Second
Priority Indebtedness ” means unsubordinated indebtedness
issued or incurred by a Euro Permitted Issuer after the Original
Effective Date and not owed to Crown Holdings or any of its
subsidiaries, to the extent permitted to be incurred by the Credit
Agreement, the First Priority Notes Indenture, the Second Priority
Notes Indenture and the Third Priority Notes Indenture, which
indebtedness is secured by a second priority Lien that is subject
and subordinated to the Liens securing the First Priority
Indebtedness in the manner described herein on the Euro
Collateral.
“ Additional Second
Priority Indebtedness Documents ” means any indenture,
debenture, note, guaranty, loan agreement, credit agreement,
purchase agreement or other document executed by a Euro Permitted
Issuer and its Subsidiaries in connection with the issuance of any
such Additional Second Priority Indebtedness.
“ Additional Second
Priority Indebtedness Representative ” means any trustee
or similar representative of the holders of any Additional Second
Priority Indebtedness.
“ Additional Subsidiary
Borrower Collateral ” means the assets of any subsidiary
borrower under the Credit Agreement pledged to the Euro Collateral
Agent for the benefit of Bank Indebtedness only and securing the
Obligations of such subsidiary borrower under Bank Indebtedness
only to the extent such subsidiary borrower is not otherwise a
subsidiary guarantor under any Additional First Priority Capital
Markets Indebtedness, Second Priority Indebtedness Documents or
Third Priority Indebtedness Documents.
“ Additional Third Priority
Indebtedness ” means unsubordinated indebtedness issued
or incurred by a Euro Permitted Issuer after the Original Effective
Date and not owed to Crown Holdings or any of its subsidiaries, to
the extent permitted to be incurred by the Credit Agreement, the
First Priority Notes Indenture, the Second Priority Notes Indenture
and the Third Priority Notes Indenture, which indebtedness is
secured by a third priority Lien that is subject and subordinated
to the Liens securing the First Priority Indebtedness and Second
Priority Indebtedness in the manner described herein on the Euro
Collateral.
“ Additional Third Priority
Indebtedness Documents ” means any indenture, debenture,
note, guaranty, loan agreement, credit agreement, purchase
agreement or other document executed by a Euro Permitted Issuer and
its Subsidiaries in connection with the issuance of any Additional
Third Priority Indebtedness.
“ Additional Third Priority
Indebtedness Representative ” means any trustee or
similar representative of the holders of any Additional Third
Priority Indebtedness.
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“ Affiliate ” of
any person means any other person which, directly or indirectly,
controls, is controlled by or is under common control with such
person.
“ Bank Indebtedness
” means (i) the Obligations of the Obligors under the Credit
Documents (including Obligations in respect of Additional First
Priority Bank Indebtedness) and (ii) the Obligations of the
Obligors under the Bank Related Debt Agreements.
“ Bank Indebtedness
Documents ” means (i) the Credit Documents and (ii) the
Bank Related Debt Agreements.
“ Bank Related Cash
Management Agreements ” means agreements of Crown Euroco,
or any of its subsidiaries arising from treasury, depository and
cash management services provided by one or more persons that is
the Bank Agent or a Lender or an Affiliate thereof or any other
person permitted under the Credit Agreement at the time that such
Bank Related Cash Management Agreement was entered into.
“ Bank Related Debt
” means, collectively, the Bank Related Cash Management
Obligations and the Bank Related Hedging Obligations.
“ Bank Related Debt
Agreements ” means, collectively, the Bank Related Cash
Management Agreements and the Bank Related Hedging
Agreements.
“ Bank Related Hedging
Agreements ” means, collectively, each Hedging Agreement
of Crown Euroco or any of its subsidiaries entered into with any
counterparty that is the Bank Agent or a Lender or an Affiliate
thereof or any other person permitted under the Credit Agreement at
the time such Hedging Agreement was entered into.
“ Bankruptcy Law
” means any law or statute for the supervision,
administration or relief of debtors, including, without limitation,
bankruptcy or insolvency laws.
“ Credit Documents
” means the Credit Agreement, each guaranty of the
Obligations thereunder by a Euro Pledgor, and any other document
executed by Crown Holdings or any of its subsidiaries in connection
with the Credit Agreement (including, without limitation, any
Joinder Agreement (as defined in the Credit Agreement) or any other
documents executed or delivered with respect to any Additional
First Priority Bank Indebtedness and the Euro Security Documents)
in each case, as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to
time.
“ Enforcement Action
” means any action whatsoever to:
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(1)
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demand payment,
declare prematurely due and payable or otherwise seek to accelerate
payment of or place on demand all or any apart of any Intercompany
Debt;
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(2)
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recover all or
any part of any Intercompany Debt (including by exercising any
right of set-off or combination of accounts);
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(3)
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exercise or
enforce any security right against assets or any other rights under
any other document or agreement in relation to (or given in support
of) all or any part of any Intercompany Debt;
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(4)
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petition for
(or take any other steps which may lead to) an Insolvency Event or
the appointment of an administrator, a receiver or manager or
equivalent in relation to the applicable Intercompany Creditor;
or
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(5)
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commence legal
proceedings against the applicable Intercompany
Creditor.
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“Euro
Collateral” means
all collateral from time to time pledged or subject to or purported
to be pledged or subject to the Lien of the Euro Security Documents
(whether or not such Lien is determined to be unperfected or
subject to avoidance), including any Additional Bank
Collateral.
“ Euro Permitted Issuer
” means Crown Euroco or any direct special purpose finance
Subsidiary of Crown Euroco formed solely to be the issuer of any
Refinancing Plan Indebtedness (as defined in the Credit Agreement);
provided that such person becomes a Loan Party (as defined
in the Credit Agreement) and complies with Section 5.11 of the
Credit Agreement.
“ Euro Security
Documents” means the non-U.S. collateral documents
identified on Schedule 2 hereto (as amended, amended and
restated, supplemented or otherwise modified from time to time, and
each other non-U.S. collateral document executed and delivered
pursuant to the Original Credit Agreement and the Credit Agreement
securing assets of Crown Euroco or any Euro Pledgor (including the
Additional Bank Collateral) or adding additional indebtedness as
secured obligations thereunder as required herein.
“ Event of Default
” means an Event of Default as defined in the Credit
Agreement.
“ Exempted Indebtedness
” shall mean any Indebtedness or other obligation which would
be considered “Exempted Indebtedness” under (and as
defined in) any indenture, agreement or instrument governing or
evidencing any Existing Unsecured Debt.
“ Existing Unsecured
Debt ” means each of the following to the extent
outstanding on the date hereof: (i) $300.0 million 8
3
/ 8 % Notes due 2005 of CCSC issued
under the 1995 Indenture; (ii) $200.0 million 8% Debentures due
2023 of CCSC issued under the 1993 Indenture; (iii) $350.0 million
7 3 / 8 % Debentures due 2026 of CCSC issued
under the 1996 Indenture; (iv) $150.0 million 7
1 / 2 % Debentures due 2096 of CCSC issued
under the 1996 Indenture; (v) $300.0 million 7% Notes due 2006 of
Crown Cork & Seal Finance PLC issued under
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the 1996 Indenture and (vi) €300.0 million
6% Senior Notes due 2004 of Crown Finance S.A. issued under the
Fiscal and Paying Agency Agreement dated as of December 6, 1999
among CCSC, Crown Finance S.A. and Citibank, N.A., as paying
agent.
“ Financing Documents
” means, collectively, the Credit Documents, the First
Priority Notes Documents, the Second Priority Notes Documents, the
Third Priority Notes Documents, the Bank Hedging Agreements, the
Bank Related Cash Management Agreements, the Additional First
Priority Capital Markets Indebtedness Documents, the Additional
Second Priority Indebtedness Documents and the Additional Third
Priority Indebtedness Documents.
“First Priority
Agents ” means,
collectively, the First Priority Notes Trustee and any Additional
First Priority Capital Markets Indebtedness
Representative.
“ First Priority Capital
Markets Indebtedness ” means (i) the Obligations of Crown
Euroco and the Euro Pledgors under the First Priority Notes
Documents and (ii) the Obligations of a Euro Permitted Issuer and
the Euro Pledgors in respect of Additional First Priority Capital
Markets Indebtedness issued under the applicable Additional First
Priority Capital Markets Indebtedness Documents.
“ First Priority Capital
Markets Indebtedness Documents ” means, collectively, the
First Priority Notes Documents and the Additional First Priority
Capital Markets Indebtedness Documents.
“ First Priority
Indebtedness ” means (i) the Obligations of Crown Euroco,
the Subsidiary Borrowers (as defined in the Credit Agreement) and
the Euro Pledgors under the Credit Documents (including Obligations
in respect of Additional First Priority Bank Indebtedness), (ii)
the Obligations of Crown Euroco and the Euro Pledgors under the
First Priority Notes Documents, (iii) the Obligations of Crown
Euroco and the Euro Pledgors under the Bank Related Debt Agreements
and (iv) the Obligations of any Euro Permitted Issuer and the Euro
Pledgors under any Additional First Priority Capital Markets
Indebtedness Documents.
“ First Priority
Indebtedness Documents ” means, collectively, the Bank
Indebtedness Documents and the First Priority Capital Markets
Indebtedness Documents.
“ First Priority Notes
” means (i) the €350.0 million in aggregate principal
amount of 6 1 / 4
% First Priority Senior
Secured Notes due 2011 of Crown Euroco issued on the date hereof
and any exchange notes which are issued in a registered exchange
offer for such notes and (ii) any additional 6
1 / 4 % First Priority Senior Secured
Notes due 2011, to the extent that the issuance of such notes is
permitted by the Credit Agreement, the First Priority Notes
Indenture, the Second Priority Notes Indenture and the Third
Priority Notes Indenture, and any exchange notes which are issued
in a registered exchange offer for such notes, in each case issued
under the First Priority Notes Indenture.
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“ First Priority Notes
Documents ” means the First Priority Notes Indenture, the
First Priority Notes, each guaranty of the Obligations thereunder
and any other document executed by Crown Holdings or any of its
subsidiaries in connection with the issuance of the First Priority
Notes, in each case, as amended, amended and restated,
supplemented, refinanced, replaced or otherwise modified from time
to time, as permitted by the Credit Agreement.
“ First Priority U.S.
Obligations ” shall mean, with respect to any of the
Credit Documents, any and all obligations, liabilities and
indebtedness of every kind, nature and description (whether or not
constituting future advances or otherwise) from time to time owing
by, or on behalf of, Crown Holdings, CCSC, Crown Usco and each
other obligor or any of their subsidiaries under, or in connection
with, borrowings by Crown Usco under the Credit Agreement,
including principal, interest, charges, fees, premiums, indemnities
and expenses, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, evidenced by or arising under any
of such Credit Documents whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal
term of such Credit Documents, or after the commencement of any
case with respect to Crown Holdings, CCSC, Crown Usco and each
other obligor or any of their subsidiaries under any Bankruptcy Law
(at the rate provided for in the relevant Credit Documents) (and
including, without limitation, any principal, interest, fees,
costs, expenses and other amount, which would accrue and become due
but for the commencement of such case, whether or not such amounts
are allowed or allowable in whole or in part in any such case or
similar proceeding), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and whether
arising directly or howsoever acquired.
“ French Security
Documents ” means the documents listed on Schedule
2 that Crown Euroco is the pledgor under.
“ Global Participation
Agreement ” means the First Amended and Restated Global
Participation and Proceeds Sharing Agreement dated as of the date
hereof among the Bank Agent, Citicorp North America, Inc., as
Administrative Agent, the First Priority Notes Trustee, the Second
Priority Notes Trustee, the Third Priority Notes Trustee, the Euro
Collateral Agent on behalf of the Euro Secured Parties and the U.S.
Collateral Agent (as defined in the U.S. Intercreditor Agreement)
on behalf of the U.S. Secured Parties (as defined in the U.S.
Intercreditor Agreement) and the Sharing Agent named therein and
the other persons that become party thereto after the date hereof,
as amended, amended and restated, supplemented, replaced or
otherwise modified from time to time.
“ Hedging Agreement
” means any interest rate protection agreement, foreign
currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price
hedging arrangement or similar agreement.
“ Insolvency Event
” means a court making a winding-up order or an order for the
dissolution or liquidation of an Intercompany Creditor or a
liquidator or administrator or equivalent (but not an
administrator, receiver, manager or equivalent appointed by the
holder of a Lien) is appointed to an Intercompany
Creditor.
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“ Intercompany
Creditors ” means those Euro Pledgors or their
subsidiaries that are creditors in relation to any Intercompany
Debt.
“ Intercompany Debt
” means any money or liabilities now or in the future owing
by any Euro Pledgor or its subsidiaries to any Intercompany
Creditor together with all accrued interest and related costs,
charges and expenses.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title
retention agreement relating to such asset, (c) in the case of
securities, any purchase option, call or similar right of a third
party with respect to such securities and (d) any other agreement
intended to create any of the foregoing.
“ 1993 Indenture
” means the Indenture dated as of April 1, 1993 between CCSC
and Bank One Trust Company, NA, as successor to Chemical Bank, as
trustee.
“ 1995 Indenture
” means the Indenture dated as of January 15, 1995 between
CCSC and Bank One Trust Company, NA, as successor to Chemical Bank,
as trustee.
“ 1996 Indenture
” means the Indenture dated as of December 17, 1996 among
CCSC, Crown Cork & Seal Finance PLC, Crown Cork & Seal
Finance, S.A. and The Bank of New York, as trustee.
“ Obligations ”
shall mean, with respect to any of the Financing Documents, any and
all obligations, liabilities and indebtedness of every kind, nature
and description (whether or not constituting future advances or
otherwise) from time to time owing by, or on behalf of, a Euro
Permitted Issuer or any Euro Pledgor or any of their subsidiaries
under, or in connection with, such Financing Documents, including
principal, interest, charges, fees, premiums, indemnities and
expenses, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, evidenced by or arising under any
of such Financing Documents whether now existing or hereafter
arising, whether arising before, during or after the initial or any
renewal term of such Financing Documents, or after the commencement
of any case with respect to a Euro Permitted Issuer or any Euro
Pledgor or any of their subsidiaries under the Bankruptcy Law (at
the rate provided for in the relevant Financing Documents) (and
including, without limitation, any principal, interest, fees,
costs, expenses and other amounts, which would accrue and become
due but for the commencement of such case, whether or not such
amounts are allowed or allowable in whole or in part in any such
case or similar proceeding), whether direct or indirect, absolute
or contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured, and
whether arising directly or howsoever acquired.
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“ Principal Property
” has the meaning given to such term under the indentures,
agreements and instruments governing the Existing Unsecured Debt as
such indentures, agreements and instruments are in effect on the
Original Effective Date.
“ Restricted Collateral
” shall mean the collective reference to all Principal
Properties and Restricted Securities.
“ Restricted Securities
” shall mean any shares of capital stock or evidences of
indebtedness for borrowed money issued by any Restricted Subsidiary
and owned by Crown Holdings or any Restricted
Subsidiary.
“ Restricted Secured
Indebtedness ” shall mean, at any time, the portion of
the Obligations constituting Exempted Indebtedness that is equal to
the maximum aggregate amount of Exempted Indebtedness that may be
secured at such time without causing any Existing Unsecured Debt to
be required to be equally and ratably secured.
“ Restricted Subsidiary
” means any subsidiary of Crown Holdings that would be
considered a “Restricted Subsidiary” under (and as
defined in) any indenture, agreement or instrument governing or
evidencing any Existing Unsecured Debt, as such indenture,
agreement or instrument is in effect on the Original Effective
Date.
“ Second Priority
Agents ” means, collectively, the Second Priority Notes
Trustee and any Additional Second Priority Indebtedness
Representative.
“ Second Priority Dollar
Notes ” means (i) the $1.085 billion in aggregate
principal amount of 9 1 / 2
% Second Priority Senior
Secured Notes due 2011 of Crown Euroco issued on the Original
Effective Date and any exchange notes which were issued in a
registered exchange offer for such notes and (ii) any additional
9 1 / 2 % Second Priority Senior Secured
Notes due 2011 of Crown Euroco, to the extent that the issuance of
such notes is permitted by the Credit Agreement, the First Priority
Notes Indenture, the Second Priority Notes Indenture and the Third
Priority Notes Indenture, and any exchange notes which are issued
in a registered exchange offer for such notes, in each case issued
under the Second Priority Notes Indenture.
“ Second Priority Euro
Notes ” means (i) the €285 million in aggregate
principal amount of 10 1 / 4
% Second Priority Senior
Secured Notes due 2011 of Crown Euroco issued on the Original
Effective Date and any exchange notes which were issued in a
registered exchange offer for such notes and (ii) any additional
10 1 / 4 % Second Priority Senior Secured
Notes due 2011, to the extent that the issuance of such notes is
permitted by the Credit Agreement, the First Priority Notes
Indenture, the Second Priority Notes Indenture and the
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Third Priority Notes Indenture, and any exchange
notes which are issued in a registered exchange offer for such
notes, in each case issued under the Second Priority Notes
Indenture.
“ Second Priority
Indebtedness ” means (i) the Obligations of Crown Euroco
and the Euro Pledgors under the Second Priority Notes Documents and
(ii) the Obligations of any Euro Permitted Issuer and the Euro
Pledgors under any Additional Second Priority Indebtedness
Documents.
“ Second Priority
Indebtedness Documents ” means, collectively, the Second
Priority Notes Documents and the Additional Second Priority
Indebtedness Documents.
“ Second Priority Notes
” means, collectively, the Second Priority Dollar Notes and
the Second Priority Euro Notes.
“ Second Priority Notes
Documents ” means the Second Priority Notes Indenture,
the Second Priority Notes, each guaranty of the Obligations
thereunder and any other document executed by Crown Holdings or any
of its subsidiaries in connection with the issuance of the Second
Priority Notes, in each case, as amended, amended and restated,
supplemented, refinanced, replaced or otherwise modified from time
to time, as permitted by the Credit Agreement.
“ Third Priority Agents
” means, collectively, the Third Priority Notes Trustee and
any Additional Third Priority Indebtedness
Representative.
“ Third Priority
Indebtedness ” means (i) the Obligations of Crown Euroco
and the Euro Pledgors under the Third Priority Notes Documents and
(ii) the Obligations of any Euro Permitted Issuer and the Euro
Pledgors under any Additional Third Priority Indebtedness
Documents.
“ Third Priority
Indebtedness Documents ” means, collectively, the Third
Priority Notes Documents and the Additional Third Priority
Indebtedness Documents.
“ Third Priority Notes
” means (i) the $725 million in aggregate principal amount of
10 7
/ 8 % Third Priority Senior Secured
Notes due 2013 of Crown Euroco issued on the Original Effective
Date and any exchange notes which were issued in a registered
exchange offer for such notes and (ii) any additional 10
7
/ 8 % Third Priority Senior Secured
Notes due 2013 of Crown Euroco, to the extent that the issuance of
such notes is permitted by the Credit Agreement, the First Priority
Notes Indenture, the Second Priority Notes Indenture and the Third
Priority Notes Indenture, and any exchange notes which are issued
in a registered exchange offer for such notes, in each case issued
under the Third Priority Notes Indenture.
“ Third Priority Notes
Documents ” means the Third Priority Notes Indenture, the
Third Priority Notes, each guaranty of the Obligations thereunder
and any other document executed
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by Crown Holdings or any of its subsidiaries in
connection with the issuance of the Third Priority Notes, in each
case, as amended, amended and restated, supplemented, refinanced,
replaced or otherwise modified from time to time, as permitted by
the Credit Agreement.
“ U.S. Intercreditor
Agreement ” means the First Amended and Restated U.S.
Intercreditor and Collateral Agency Agreement dated as of the date
hereof among Citicorp North America, Inc., as U.S. Collateral
Agent, Citicorp North America, Inc., as administrative agent,
Citibank International plc, as U.K. administrative agent, the First
Priority Notes Trustee, the Second Priority Notes Trustee and the
Third Priority Notes Trustee and the other persons that become
parties thereto after the date hereof, as amended and restated as
of the date hereof, and as amended, amended and restated,
supplemented, replaced or otherwise modified from time to
time.
Section 2. Appointment as Euro Collateral
Agent .
The Bank Agent, the First Priority
Notes Trustee, the Second Priority Notes Trustee and the Third
Priority Notes Trustee each hereby irrevocably and unconditionally
appoints, and each Bank Related Hedging Exchanger, Bank Related
Cash Management Exchanger, Additional First Priority Capital
Markets Indebtedness Representative, Additional Second Priority
Indebtedness Representative and Additional Third Priority
Indebtedness Representative (each such party, a “ Euro
Secured Party ”) signing an acknowledgment hereto, by
such signing, irrevocably and unconditionally appoints, Citicorp
Trustee Company Limited to serve as collateral agent and
representative of each such Euro Secured Party under each of the
Euro Security Documents (in such capacity, together with its
successors in such capacity, the “ Euro Collateral
Agent ”) and irrevocably and unconditionally authorizes
the Euro Collateral Agent to act as agent for the Euro Secured
Parties for the purpose of executing and delivering, on behalf of
all such Euro Secured Parties, the Euro Security Documents and the
Global Participation Agreement and any other documents or
instruments related thereto or necessary or, as determined by the
Euro Collateral Agent (acting on the instructions of the Requisite
Obligees), desirable to perfect the Liens granted to the Euro
Collateral Agent thereunder and, subject to the provisions of this
Agreement, for the purpose of enforcing the Euro Secured
Parties’ rights in respect of the Euro Collateral and the
obligations of the Euro Pledgors under the Euro Security Documents,
and for the purpose of, or in connection with, releasing the
obligations of the Euro Pledgors under the Euro Security Documents
in accordance with the terms of the Financing Documents.
Without limiting the generality of
the foregoing, the Euro Collateral Agent is further hereby
appointed as agent for each of the Euro Secured Parties to hold the
Liens on the Euro Collateral granted pursuant to the Euro Security
Documents with, subject to Section 3 , sole authority to
exercise remedies under the Euro Security Documents. The Euro
Collateral Agent is hereby authorized to act as mortgagee under all
mortgages, beneficiary under all deeds of trust and as Euro Secured
Party under each applicable Euro Security Document and to follow
the instructions provided to it under this Agreement.
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Section 3. Decisions Relating to Exercise of
Remedies Vested in Requisite Obligees .
(a) Except as otherwise provided in
Section 3 of the Global Participation Agreement, the Euro
Collateral Agent shall exercise its rights, powers and discretions
under this Agreement, the Credit Agreement and the Euro Security
Documents or otherwise arising in relation to the Euro Collateral
(including as mandataire for purposes of the fifth paragraph of
this subsection 3(a)) in accordance with the written directions of
the Requisite Obligees and any rights or obligations of the Euro
Collateral Agent hereunder or under the Credit Agreement or Euro
Security Documents shall be subject to the provisions of this
Section.
For purposes of this Agreement,
“ Requisite Obligees ” means, for purposes of
directing the Euro Collateral Agent with respect to any of the
foregoing actions to be taken pursuant to any of the Euro Security
Documents, the Bank Agent (including on behalf of any Lenders of
Additional First Priority Bank Indebtedness) and the Administrative
Agent; provided that if the Obligations and the First
Priority U.S. Obligations under the Credit Documents and Bank
Related Debt have been indefeasibly paid in full in cash without
any refinancing thereof through the incurrence of indebtedness
having a Lien on any Euro Collateral and the Credit Agreement and
all letters of credit thereunder and the Bank Related Debt
Agreements have terminated, “ Requisite Obligees
” shall mean (1) the First Priority Notes Trustee until all
First Priority Capital Markets Indebtedness shall have been
indefeasibly paid in full without any refinancing thereof through
the incurrence of indebtedness having a Lien on any Euro Collateral
and the First Priority Capital Markets Indebtedness Documents have
terminated, (2) thereafter, the Second Priority Notes Trustee until
all Second Priority Indebtedness shall have been indefeasibly paid
in full without any refinancing thereof through the incurrence of
indebtedness having a Lien on any Euro Collateral and the Second
Priority Indebtedness Documents have terminated, and (3)
thereafter, the Third Priority Notes Trustee; provided ,
further , that for purposes of directing the Euro Collateral
Agent with respect to Additional Bank Collateral, Requisite
Obligees shall mean the Bank Agent and the Administrative Agent (as
defined in the Credit Agreement) in all cases.
The Euro Collateral Agent shall
refrain from exercising any right, power or discretion vested in it
under this Agreement, the Credit Agreement or the Euro Security
Documents or otherwise arising in relation to the Euro Collateral
(including as mandataire for purposes of the fifth paragraph of
this subsection 3(a)) unless and until instructed by the Requisite
Obligees as to whether or not such right, power or discretion is to
be exercised and, if it is to be exercised, as to the manner in
which it should be exercised (other than any right, power or
discretion which is reasonably incidental to any right, power or
discretion in relation to which it has received such instructions,
in which case the following sentence shall apply). The
Euro
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Collateral Agent may, in the exercise of its
duties, obligations and responsibilities hereunder, do any act or
thing reasonably incidental, in the opinion of the Euro Collateral
Agent, to any instructions received by it from the Requisite
Obligees which in its discretion it deems advisable for the
protection and benefit of the Euro Secured Parties.
The Euro Collateral Agent has
executed or shall be executing the Euro Security Documents on
behalf of the Euro Secured Parties upon the instructions of the
Euro Secured Parties and shall not be responsible or liable for the
legality, validity, effectiveness, genuineness, adequacy,
enforceability or sufficiency of any of the Euro Security Documents
or the Euro Collateral.
For the avoidance of doubt, in
particular with respect to the Euro Collateral Agent’s
appointment as holder of the Liens on the Euro Collateral and its
ability to perfect and enforce, if required before a court of law,
the Euro Collateral, as agent for the Euro Secured Parties, for
French law purposes only, the Euro Collateral Agent shall be deemed
to act as “mandataire” for the Euro Secured Parties
pursuant to Article 1984 et seq . of the French Civil Code.
With respect to any bankruptcy or insolvency proceeding of Crown
Euroco in France, the Euro Collateral Agent shall be deemed to
represent the Requisite Obligees only for purposes of making
requests or demands in such proceeding.
The Euro Collateral Agent shall not
be required to take any action (including as mandataire for
purposes of the fifth paragraph of this subsection 3(a)) that it
believes is contrary to law or to the terms of this Agreement or
any of the Euro Security Documents or which it believes would
subject it or any of its officers, employees or directors to
liability, and the Euro Collateral Agent shall not be required to
take any action under this Agreement or any of the Euro Security
Documents (including as mandataire for purposes of the fifth
paragraph of this subsection 3(a)), unless and until the Euro
Collateral Agent shall receive additional indemnities to its
satisfaction from the Euro Secured Parties (or the holders
represented thereby) against any and all losses, costs, expenses or
liabilities in connection therewith.
(b) Each Euro Secured Party
executing this Agreement or an acknowledgment hereto agrees that
(i) the Euro Collateral Agent shall act as the Requisite Obligees
may request (regardless of whether any Euro Secured Party or any
holder represented thereby agrees, disagrees or abstains with
respect to such request), (ii) the Euro Collateral Agent shall have
no liability for acting in accordance with such request (
provided such action does not, on its face, conflict with
the express terms of this Agreement (or such term has been waived
in accordance with the terms hereof)) and (iii) no Euro Secured
Party or any holder represented thereby shall have any liability to
any other Euro Secured Party or any holder represented thereby for
any such request. The Euro Collateral Agent shall give prompt
notice to all Euro Secured Parties of actions taken pursuant to the
instructions of Requisite Obligees; provided ,
however , that the failure to give any such notice shall not
impair the right of the Euro Collateral Agent to take any such
action or the validity or enforceability under this Agreement or
the applicable Euro Security Document of the action so taken or
create a cause of action against the Euro Collateral
Agent.
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(c) Each Euro Secured Party agrees
that unless and until such Euro Secured Party is entitled to give
direction to the Euro Collateral Agent pursuant to Section
3(a) with respect to a Euro Security Document, the only right
of such Euro Secured Party under the Euro Security Documents is for
the Obligations owing to such Euro Secured Party to be secured by
the Euro Collateral, and to receive a share of the Proceeds of such
Euro Collateral, if any, as and when provided in the Euro Security
Documents and Section 4 and Section 5
hereof.
(d) Notwithstanding anything to the
contrary set forth in any of the Financing Documents or contained
herein and irrespective of:
(i) the time, order or method of
creation, attachment or perfection of the respective security
interests and/or Liens granted to the Euro Collateral Agent for the
benefit of the Euro Secured Parties in or on any or all of the
property or assets of Crown SAS, Crown Euroco and its
subsidiaries,
(ii) the time or order of filing or
recording of financing statements or other documents filed or
recorded to perfect security interests in any Euro
Collateral,
(iii) whether any Euro Secured Party
or any bailee or agent thereof holds possession of any or all of
the property or assets of any Euro Pledgor,
(iv) the dating, execution or
delivery of any agreement, document or instrument granting any Euro
Secured Party security interests and/or Liens in or on any or all
of the property or assets of any Euro Pledgor,
(v) the giving or failure to give
notice of the acquisition or expected acquisition of any purchase
money or other security interest and
(vi) the rules for determining
priority under any law or rule governing the relative priorities of
secured creditors,
(I) any security interest in any Euro Collateral
heretofore or hereafter granted or purported to be granted to
secure any Obligations in respect of First Priority Indebtedness
pursuant to any Euro Security Document or otherwise has and, except
as provided in Section 3(i) , shall have priority, to the
extent of any such unpaid Obligations under First Priority
Indebtedness, over any security interest in such Euro Collateral
granted to secure any Obligations in respect of Second Priority
Indebtedness and Third Priority Indebtedness, and any Lien or
security interest in the Euro Collateral held by or for the benefit
of the holders of Second Priority Indebtedness and Third Priority
Indebtedness shall be in all respects and for all purposes junior
to and subordinated to all Liens and security interests in the Euro
Collateral held by or for the benefit
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of holders of First Priority Indebtedness; and
(II) any security interest in any Euro Collateral heretofore or
hereafter granted to secure any Obligations in respect of Second
Priority Indebtedness pursuant to any Euro Security Document or
otherwise has and, except as provided in Section 3(i) ,
shall have priority, to the extent of any such unpaid Obligations
under Second Priority Indebtedness, over any security interest in
such Euro Collateral granted to secure any Obligations in respect
of Third Priority Indebtedness, and any Lien or security interest
in the Euro Collateral held by or for the benefit of the holders of
Third Priority Indebtedness shall be in all respects and for all
purposes junior to and subordinated to all Liens and security
interests in the Euro Collateral held by or for the benefit of
holders of Second Priority Indebtedness. With respect to the French
Security Documents, notwithstanding that the Euro Collateral
subject to the Lien thereunder (except for shares of Crown Euroco,
which will be pledged exclusively for the benefit of the Bank
Indebtedness) secures the First Priority Indebtedness, Second
Priority Indebtedness and Third Priority Indebtedness on a pari
passu basis, such Lien shall be subject to the priorities described
herein, including, without limitation, Section 4
.
(e) The Euro Collateral Agent may at
any time request directions from the Requisite Obligees with
respect to the Euro Security Documents as to any course of action
or other matter relating hereto or to any Euro Security Document.
Except as set forth in Section 3(f) below, directions given
by Requisite Obligees to the Euro Collateral Agent hereunder shall
be binding on all Euro Secured Parties for all purposes.
(f) (i) Subject to the application
of Proceeds (as defined below) pursuant to Section 4 , (A)
the Euro Collateral Agent may release the Lien of the Euro Security
Documents against any portion or all of the Euro Collateral, to the
extent approved by the Requisite Obligees and (B) the Euro
Collateral Agent shall release the Lien of the Euro Security
Documents against all of the Euro Collateral and terminate the Euro
Security Documents after all Bank Indebtedness and First Priority
U.S. Obligations have been repaid in full and the Bank Indebtedness
Documents have been terminated; provided , however ,
that (I) no such release under clause (A) of this sentence (other
than (a) a release permitted by Section 3(f)(ii) and (b) a
release in connection with the foreclosure, sale or disposition of
Euro Collateral by the Euro Collateral Agent hereunder in
connection with the enforcement of rights and exercise of remedies
in respect of such Euro Collateral) of Euro Collateral that is not
Additional Bank Collateral shall be effective against any First
Priority Agent or any holder of First Priority Capital Markets
Indebtedness if such First Priority Agent or any holder of First
Priority Capital Markets Indebtedness shall have delivered a notice
to the Euro Collateral Agent not later than one Business Day prior
to the date of release that a default or event of default shall
have occurred and be continuing under such applicable First
Priority Capital Markets Indebtedness Document as of the time of
such proposed release, unless such First Priority Agent consents to
such release, (II) no such release (other than (a) a release
permitted by Section 3(f)(ii) and (b) a release in
connection with the foreclosure, sale or disposition of Euro
Collateral by the Euro Collateral Agent hereunder in connection
with the enforcement of rights and exercise of remedies in
re
