Exhibit 4.k
FIRST AMENDED AND RESTATED
U.S.
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) CITICORP NORTH AMERICA, INC., as
administrative agent (in such capacity, together with its
successors and assigns, the “ Administrative Agent
”) for the Term B Dollar Lenders and Revolving Dollar Lenders
from time to time party to the Credit Agreement (as defined below),
(ii) CITIBANK INTERNATIONAL PLC, as U.K. administrative agent (in
such capacity, together with its successors and assigns, the
“ U.K. Agent ” and together with the
Administrative Agent, the “ Bank Agents ”) for
the New Term Euro Lenders and the Revolving Euro Lenders from time
to time party to the Credit Agreement, (iii) 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), (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
“ Second Priority Notes Trustee ”) for the
holders of Second Priority Notes (as defined below) issued under
the Second Priority Notes Indenture (as defined below), (v) 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), (vi) CITICORP NORTH AMERICA,
INC., as U.S. Collateral Agent (as defined below), (vii) CROWN
HOLDINGS, INC. (“ Crown Holdings ”), (viii)
CROWN AMERICAS, INC. (f/k/a Crown Cork & Seal Americas, Inc.)
(“ Crown Usco ”), (ix) CROWN CORK & SEAL
COMPANY, INC. (“ CCSC ”), (x) CROWN
INTERNATIONAL HOLDINGS, INC. (“ Crown International
”), (xi) each of the U.S. subsidiaries of Crown Holdings
listed on Schedule 1 hereto, and (xii) 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 Agents,
the Second Priority Notes Trustee, the Third Priority Notes
Trustee, the U.S. Collateral Agent and the U.S. Pledgors entered
into the U.S. Intercreditor and Collateral Agency Agreement (the
“ Original Agreement ”).
WHEREAS, on the Original Effective
Date, Crown Usco, Crown European Holdings SA (“ Crown
Euroco ”), the subsidiary borrowers named therein, Crown
Holdings, Crown International and CCSC (collectively, the “
Loan Parties ”) entered into that certain credit
agreement (the “ Original Credit Agreement ”)
with the lenders named therein and the Bank Agents.
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 U.S.
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 Agents’ acknowledgment
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of the termination of the predecessor Credit
Agreement) with the lenders from time to time party thereto
(including any Lenders of Additional First Priority Bank
Indebtedness (as defined below)) (collectively, the “
Lenders ”) and the Bank Agents.
WHEREAS, pursuant to the terms
hereof, on the date hereof, Crown Usco represents to the U.S.
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 (as defined below) 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 the Original Effective
Date, Crown Holdings, Crown International, CCSC, Crown Usco and
certain U.S. subsidiaries of each of Crown Usco and CCSC and Crown
Holdings set forth on Schedule 1 hereto (collectively, and
together with any other subsidiaries which are required by one or
more Financing Documents to become U.S. Pledgors, the “
U.S. Pledgors ”) executed and delivered to the U.S.
Collateral Agent the U.S. Shared Pledge Agreement, which secured
all of the Obligations under the Financing Documents, and on the
date hereof will execute and deliver to the U.S. Collateral Agent
an amendment and restatement thereof in the form attached to this
Agreement as Exhibit A (as amended, amended and restated,
supplemented or otherwise modified from time to time, the “
U.S. Shared Pledge Agreement ”).
WHEREAS, on the date hereof, Crown
Holdings, Crown International, CCSC, Crown Usco and the U.S.
Pledgors will execute and deliver to the U.S. Collateral Agent the
U.S. Bank Pledge Agreement, which shall secure the Obligations
under Bank Indebtedness (as defined below) only (as amended,
amended and restated, supplemented or otherwise modified from time
to time, the “ U.S. Bank Pledge Agreement ” and
together with the U.S. Shared Pledge Agreement, the “ U.S.
Pledge Agreements ”) in the form attached to this
Agreement as Exhibit B .
WHEREAS, on the Original Effective
Date, the U.S. Pledgors executed and delivered to the U.S.
Collateral Agent a U.S. Security Agreement and on the date hereof,
the U.S. Pledgors will execute and deliver to the U.S. Collateral
Agent an amendment and restatement thereof in the form attached to
this Agreement as Exhibit C (as amended, amended and
restated, supplemented or otherwise modified from time to time, the
“ U.S. Security Agreement ”).
WHEREAS, on the date hereof, certain
of the U.S. Pledgors will execute and deliver to the U.S.
Collateral Agent the first priority mortgages identified on
Schedule 2 hereto (the “ Initial Mortgages
”) and shall from time to time pursuant to the terms of one
or more Financing Documents (as defined below) execute and deliver
additional mortgages as required by such Financing Documents (the
“ Additional Mortgages ”), in each case
encumbering real property interests of the U.S. Pledgors (the
Initial Mortgages and the Additional Mortgages, in each case as
amended, amended and restated, supplemented or otherwise modified
from time to time, are referred to herein as the “
Mortgages ”).
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WHEREAS, it is understood and
acknowledged that only the Bank Indebtedness 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 Holdings or any
of its subsidiaries may from time to time enter into one or more
Bank Related Hedging Agreements (as defined below) with any
counterparty that was a 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 Holdings 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 U.S. Collateral (as defined below) pursuant to
the U.S. Security Documents (as defined below); provided
that for any Bank Related Hedging Exchanger to receive the benefit
of such security, it shall execute and deliver to the U.S.
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 the First
Priority Indebtedness.
WHEREAS, it is contemplated that, to
the extent permitted by the Credit Agreement, Crown Holdings or any
of its subsidiaries may from time to time enter into one or more
Bank Related Cash Management Agreements (as defined below) with any
counterparty that was a 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 “ Bank
Related Cash Management Exchangers ”) and it is desired
that the obligations of Crown Holdings or any of its subsidiaries
under such Bank Related Cash Management Agreements, including the
obligation to make payments in the event of early termination
thereunder (all such obligations being the “ Bank Related
Cash Management Obligations ”), be secured by the U.S.
Collateral pursuant to the U.S. 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 U.S.
Collateral Agent an acknowledgment to this Agreement (in the form
Annex 2 attached hereto) agreeing to be bound by the terms
hereof at any time prior to the payment in full of the First
Priority Indebtedness.
WHEREAS, it is contemplated that,
from time to time, to the extent permitted by the Credit Agreement,
Crown Usco and 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 U.S.
Collateral pursuant to the U.S. Security Documents and have the
priority set forth herein.
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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 U.S.
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 U.S. Collateral pursuant to the
U.S. 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
U.S. 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 U.S.
Permitted Issuer may issue certain Additional Second Priority
Indebtedness (as defined below), which Additional Second Priority
Indebtedness will be secured by the U.S. Collateral pursuant to the
U.S. 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 U.S. 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 U.S.
Permitted Issuer may issue certain Additional Third Priority
Indebtedness (as defined below), which Additional Third Priority
Indebtedness will be secured by the U.S. Collateral pursuant to the
U.S. 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 U.S. 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 Agents
(for their benefit and for the benefit of the Lenders and other
agents under the Credit Agreement) and the Third Priority Notes
Trustee (for its benefit and for the benefit of
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the holders of the Third Priority Notes), (b) in
the event any Bank Related Hedging Obligations are to be secured by
the U.S. 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
U.S. 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 U.S. Security
Documents, the Administrative Agent or the U.K. Administrative
Agent in respect of such Additional First Priority Capital Markets
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 any Additional First Priority Capital
Markets Indebtedness are to be secured by the U.S. Security
Documents, the Additional First Priority Capital Markets
Indebtedness Representative in respect of such Additional First
Priority Capital Markets 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 U.S. 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 U.S. 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 U.S. Collateral Agent and to set forth
certain other provisions concerning the obligations of the U.S.
Pledgors to the U.S. 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 U.S.
Security Documents and certain limitations on the exercise of such
remedies.
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.
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“ Additional Bank
Collateral ” means the capital stock of each U.S.
subsidiary of Crown Holdings (other than CCSC) and 65% of the
capital stock of each first tier non-U.S. subsidiary of any U.S.
subsidiary of Crown Holdings pledged to the U.S. Collateral Agent
for the benefit of the Lenders under the Credit Agreement, any Bank
Related Hedging Exchanger and any Bank Related Cash Management
Exchanger.
“ Additional First Priority
Bank Indebtedness ” means (i) New Term Dollar Loans (as
defined in the Credit Agreement) incurred by Crown Usco and/or
Crown Euroco and (ii) Additional Revolving LC Loans (as defined in
the Credit Agreement) incurred by Crown Usco, in each case,
pursuant to the Credit Agreement, which indebtedness is secured by
a first priority Lien in the manner described herein on the U.S.
Collateral.
“ Additional First Priority
Capital Markets Indebtedness ” means any unsubordinated
indebtedness issued by a U.S. 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 U.S.
Collateral.
“ Additional First Priority
Capital Markets Indebtedness Documents ” means any
indenture, debenture, note, guaranty, purchase agreement or other
document executed by Crown Euroco or any other U.S. Pledgor in
connection with the issuance of any such Additional First Priority
Capital Markets Indebtedness.
“ 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 U.S. 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 U.S.
Collateral.
“ Additional Second
Priority Indebtedness Documents ” means any indenture,
debenture, note, guaranty, loan agreement, credit agreement,
purchase agreement or other document executed by a U.S. Permitted
Issuer or any other U.S. Pledgor in connection with the issuance of
any such Additional Second Priority Indebtedness.
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“ Additional Second
Priority Indebtedness Representative ” means any trustee
or similar representative of the holders of any Additional Second
Priority Indebtedness.
“ Additional Third Priority
Indebtedness ” means unsubordinated indebtedness issued
or incurred by a U.S. 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 U.S.
Collateral.
“ Additional Third Priority
Indebtedness Documents ” means any indenture, debenture,
note, guaranty, loan agreement, credit agreement, purchase
agreement or other document executed by a U.S. Permitted Issuer or
any U.S. Pledgor 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.
“ 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
Holdings or any of its subsidiaries arising from treasury,
depository and cash management services provided by one or more
persons that is a 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 Holdings or any of its subsidiaries entered into with any
counterparty that is a 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.
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“ Bankruptcy Code
” means Title 11, United States Code, or any similar Federal
or state or non-U.S. law or statute for the supervision,
administration or relief of debtors, including, without limitation,
bankruptcy or insolvency laws.
“ Credit Documents
” means the Credit Agreement, each guaranty of the
Obligations thereunder by a U.S. 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 U.S. Security Documents),
in each case, as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to
time.
“ Euro Intercreditor
Agreement ” means the First Amended and Restated Euro
Intercreditor and Collateral Agency Agreement dated as of the date
hereof among Citicorp Trustee Company Limited, as Euro Collateral
Agent, the 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, amended and restated,
supplemented, replaced or otherwise modified from time to
time.
“ 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 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.
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“ First Priority Capital
Markets Indebtedness ” means (i) the Obligations of the
Obligors under the First Priority Notes Documents and (ii) the
Obligations of the Obligors 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
Indebtedness Capital Markets Documents.
“ First Priority
Indebtedness ” means (i) the Obligations of the Obligors
under the Credit Documents (including Obligations in respect of
Additional Bank Indebtedness), (ii) the Obligations of the Obligors
under the First Priority Notes Documents, (iii) the Obligations of
the Obligors under the Bank Related Debt Agreements and (iv) the
Obligations of the Obligors 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.
“ 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.
“ Global Participation
Agreement ” means the First Amended and Restated Global
Participation and Proceeds Sharing Agreement dated as of the date
hereof among the Bank Agents, the First Priority Notes Trustee, the
Second Priority Notes Trustee, the Third Priority Notes Trustee,
the U.S. Collateral Agent on behalf of the U.S. Secured Parties and
the Euro Collateral Agent (as defined in the Euro Intercreditor
Agreement) on behalf of the Euro Secured Parties (as defined in the
Euro 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.
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“ 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.
“ Lien ” means,
with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, encumbrance, charge, assignment, hypothecation or security
interest in or on such asset or any filing of any financing
statement under the UCC as in effect in the applicable state or
jurisdiction or any similar notice or lien under any similar notice
or recording statute of any governmental authority, in each of the
foregoing cases whether voluntary or imposed by law, (b) the
interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to
such asset, (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such
securities and (d) any other agreement intended to create any of
the foregoing.
“ 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, any Obligor
or any of its subsidiaries under, or in connection with, such
Financing Documents, including principal, interest, charges, fees,
premiums, indemnities and expenses, however evidenced, whether as
principal, surety, endorser, guarantor or otherwise, evidenced by
or arising under any of such Financing Documents whether now
existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of such Financing Documents,
or after the commencement of any case with respect to any Obligor
or any of its subsidiaries under the Bankruptcy Code (at the rate
provided for in the relevant Financing Documents) (and including,
without limitation, any principal, interest, fees, costs, expenses
and other amounts, which would accrue and become due but for the
commencement of such case, whether or not such amounts are allowed
or allowable in whole or in part in any such case or similar
proceeding), whether direct or indirect, absolute or contingent,
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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“ Obligors ”
means each of Crown Holdings, CCSC, Crown International, Crown
Usco, Crown Euroco, each Subsidiary Borrower (as defined in the
Credit Agreement), each of the U.S. Pledgors and any other obligor
under any Financing Documents.
“ 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 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 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 Third
Priority Notes Indenture, and any exchange notes which are issued
in a registered exchange offer for such notes, in each case issued
under the Second Priority Notes Indenture.
“ Second Priority
Indebtedness ” means (i) the Obligations of the Obligors
under the Second Priority Notes Documents and (ii) the Obligations
of the Obligors under any Additional Second Priority Indebtedness
Documents.
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“ 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 the Obligors
under the Third Priority Notes Documents and (ii) the Obligations
of the Obligors 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 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. Collateral
” means all collateral from time to time pledged or subject
to or purported to be pledged or subject to the Lien of the U.S.
Security Documents (whether or not such Lien is determined to be
unperfected or subject to avoidance), including any Additional Bank
Collateral.
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“ U.S. Permitted Issuer
” means Crown Holdings, Crown International, Crown Usco or
any other Guarantor (as defined in the Credit Agreement) (other
than CCSC) that is not a Subsidiary of Crown Usco, or any direct
special purpose finance Subsidiary thereof 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.
“ U.S. Security
Documents ” means the U.S. Pledge Agreements, the U.S.
Security Agreement, the Mortgages and each other security agreement
or other instrument or document (including, without limitation, any
Additional Mortgages) executed and delivered pursuant to one or
more Financing Documents encumbering U.S. assets of any U.S.
Pledgor (including the Additional Bank Collateral).
Section 2. Appointment as U.S. Collateral
Agent .
The Bank Agents, 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 “ U.S.
Secured Party ”) signing an acknowledgment hereto, by
such signing, irrevocably and unconditionally appoints, Citicorp
North America, Inc. to serve as collateral agent and representative
of each such U.S. Secured Party under each of the U.S. Security
Documents (in such capacity, together with its successors in such
capacity, the “ U.S. Collateral Agent ”) and
irrevocably and unconditionally authorizes the U.S. Collateral
Agent to act as agent for the U.S. Secured Parties for the purpose
of executing and delivering, on behalf of all such U.S. Secured
Parties, the U.S. Security Documents and the Global Participation
Agreement and any other documents or instruments related thereto or
necessary or, as determined by the U.S. Collateral Agent (acting on
the instructions of the Requisite Obligees), desirable to perfect
the Liens granted to the U.S. Collateral Agent thereunder and,
subject to the provisions of this Agreement, for the purpose of
enforcing the U.S. Secured Parties’ rights in respect of the
U.S. Collateral and the obligations of the U.S. Pledgors under the
U.S. Security Documents, and for the purpose of, or in connection
with, releasing the obligations of the U.S. Pledgors under the U.S.
Security Documents in accordance with the terms of the Financing
Documents.
Without limiting the generality of
the foregoing, the U.S. Collateral Agent is further hereby
appointed as agent for each of the U.S. Secured Parties to hold the
Liens on the U.S. Collateral granted pursuant to the U.S. Security
Documents with, subject to Section 3 , sole authority to
exercise remedies under the U.S. Security Documents. The U.S.
Collateral
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Agent is hereby authorized to act as mortgagee
under all Mortgages, beneficiary under all deeds of trust and as
U.S. Secured Party under the applicable U.S. Security Agreement and
U.S. Pledge Agreement and each other U.S. Security Document and to
follow the instructions provided to it under this
Agreement.
Section 3. Decisions Relating to Exercise of
Remedies Vested in Requisite Obligees .
(a) The U.S. Collateral Agent may
take such actions under the U.S. Security Documents as it may, in
its sole discretion, deem necessary or appropriate under the
circumstances. Subject to Section 3(f) , the U.S. Collateral
Agent agrees to make such demands and give such notices under the
U.S. Security Documents as the Requisite Obligees may request, and
to take such action to amend or modify or enforce the U.S. Security
Documents and to foreclose upon, collect and dispose of the U.S.
Collateral or any portion thereof as may be directed by Requisite
Obligees.
For purposes of this Agreement,
“ Requisite Obligees ” means, for purposes of
directing the U.S. Collateral Agent with respect to any of the
foregoing actions to be taken pursuant to any of the U.S. Security
Documents, the Bank Agents (including on behalf of any Lenders of
Additional First Priority Bank Indebtedness); provided that
if the 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
U.S. 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
U.S. 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 U.S.
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 U.S. Collateral Agent with respect to Additional Bank
Collateral, Requisite Obligees shall mean the Bank Agents in all
cases.
The U.S. Collateral Agent shall not
be required to take any action that it believes is contrary to law
or to the terms of this Agreement or any of the U.S. Security
Documents or which it believes would subject it or any of its
officers, employees or directors to liability, and the U.S.
Collateral Agent shall not be required to take any action under
this Agreement or any of the U.S. Security Documents, unless and
until the U.S. Collateral Agent shall receive additional
indemnities to its satisfaction from the U.S. Secured Parties (or
the holders represented thereby) against any and all losses, costs,
expenses or liabilities in connection therewith.
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(b) Each U.S. Secured Party
executing this Agreement or an acknowledgment hereto agrees that
(i) the U.S. Collateral Agent may act as the Requisite Obligees may
request (regardless of whether any U.S. Secured Party or any holder
represented thereby agrees, disagrees or abstains with respect to
such request), (ii) the U.S. 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 U.S. Secured
Party or any holder represented thereby shall have any liability to
any other U.S. Secured Party or any holder represented thereby for
any such request. The U.S. Collateral Agent shall give prompt
notice to all U.S. 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 U.S. Collateral Agent to take any such
action or the validity or enforceability under this Agreement or
the applicable U.S. Security Document of the action so taken or
create a cause of action against the U.S. Collateral
Agent.
(c) Each U.S. Secured Party agrees
that unless and until such U.S. Secured Party is entitled to give
direction to the U.S. Collateral Agent pursuant to Section
3(a) with respect to a U.S. Security Document, the only right
of such U.S. Secured Party under the U.S. Security Documents is for
the Obligations owing to such Secured Party to be secured by the
U.S. Collateral, and to receive a share of the Proceeds of such
U.S. Collateral, if any, as and when provided in the U.S. 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 U.S. Collateral Agent for the
benefit of the U.S. Secured Parties in or on any or all of the
property or assets of the Obligors and their respective
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 U.S.
Collateral,
(iii) whether any U.S. Secured Party
or any bailee or agent thereof holds possession of any or all of
the property or assets of any U.S. Pledgor,
(iv) the dating, execution or
delivery of any agreement, document or instrument granting any U.S.
Secured Party security interests and/or Liens in or on any or all
of the property or assets of any U.S. Pledgor,
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(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 the UCC or any other law or rule governing the
relative priorities of secured creditors,
(I) any security interest in any U.S. Collateral
heretofore or hereafter granted or purported to be granted to
secure any Obligations in respect of First Priority Indebtedness
pursuant to any U.S. 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 U.S. Collateral
granted to secure any Obligations in respect of Second Priority
Indebtedness and Third Priority Indebtedness, and any Lien or
security interest in the U.S. 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 U.S.
Collateral held by or for the benefit of holders of First Priority
Indebtedness; and (II) any security interest in any U.S. Collateral
heretofore or hereafter granted to secure any Obligations in
respect of Second Priority Indebtedness pursuant to any U.S.
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 U.S. Collateral granted to secure any
Obligations in respect of Third Priority Indebtedness, and any Lien
or security interest in the U.S. 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 U.S. Collateral held by or for
the benefit of holders of Second Priority Indebtedness.
(e) The U.S. Collateral Agent may at
any time request directions from the Requisite Obligees with
respect to the U.S. Security Documents as to any course of action
or other matter relating hereto or to any U.S. Security Document.
Except as set forth in Section 3(f) below, directions given
by Requisite Obligees to the U.S. Collateral Agent hereunder shall
be binding on all U.S. Secured Parties for all purposes.
(f) (i) Subject to the application
of Proceeds (as defined below) pursuant to Section 4 , (A)
the U.S. Collateral Agent may release the Lien of the U.S. Security
Documents against any portion or all of the U.S. Collateral, to the
extent approved by the Requisite Obligees, and (B) the U.S.
Collateral Agent shall release the Lien of the U.S. Security
Documents against all of the U.S. Collateral and terminate the U.S.
Security Documents after all Bank Indebtedness has 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 U.S. Collateral by the U.S.
Collateral Agent hereunder in connection with the enforcement of
rights and exercise of remedies in respect of such U.S.
-17-
Collateral) of U.S. 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 U.S. 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
