Exhibit 4.p
EXECUTION
SECOND AMENDED AND RESTATED
EURO INTERCREDITOR AND
COLLATERAL AGENCY
AGREEMENT
This SECOND 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, amended and restated as
of September 1, 2004 and further amended and restated as of
November 18, 2005 among (i) DEUTSCHE BANK AG NEW YORK BRANCH, as
U.K. administrative agent (as successor to Citibank International
PLC, as U.K. administrative agent under the 2004 Credit Agreement)
(in such capacity, together with its successors and assigns,
“ U.K. Administrative Agent ” or “ Bank
Agent ”) for the Euro Revolving Lenders, Term B Euro
Lenders and any other Lenders that from time to time make
Additional Term Loans to any Non-U.S. Subsidiary of Crown Cork
& Seal Company, Inc. (“ CCSC ”) from time to
time party to the Credit Agreement (as defined below), (ii) THE
BANK OF NOVA SCOTIA, as Canadian administrative agent for the
Canadian Revolving Lenders from time to time party to the Credit
Agreement (in such capacity, together with its successors and
assigns, “ Canadian Administrative Agent ”),
(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) DEUTSCHE BANK AG NEW YORK
BRANCH, as Euro Collateral Agent (as defined below) (as successor
to Citicorp Trustee Company Limited), (v) CROWN EUROPEAN HOLDINGS
SA (“ Crown Euroco ”), (vi) the subsidiaries of
Crown Euroco identified on Schedule 1 hereto and (vii) the
other persons who may become parties to this Agreement from time to
time pursuant to and in accordance with Section 6 of this
Agreement, and any other obligor under any Financing Documents
(Crown Euroco and the entities described in clauses (vi) and (vii)
are collectively referred to herein as the “ Obligors
”).
R E C I T A L S
WHEREAS, on February 26, 2003 (the
“ Original Effective Date ”), Citibank
International PLC (“ Existing U.K. Administrative
Agent ” or “ Existing Bank Agent ”),
Citicorp Trustee Company Limited (“ Existing Euro
Collateral Agent ”), the Second Priority Notes Trustee
(as defined below), the Third Priority Notes Trustee (as defined
below) and the Euro Pledgors named therein entered into the Euro
Intercreditor and Collateral Agency Agreement (the “
Original Agreement ”).
WHEREAS, on the Original Effective
Date, Crown Americas LLC (f/k/a Crown Americas, Inc. and Crown Cork
& Seal Americas, Inc.) (“ Crown Usco ”),
Crown Euroco, the subsidiary borrowers named therein, Crown
Holdings, Inc. (“ Crown Holdings ”), Crown
International Holdings, Inc. and CCSC (collectively, the “
Credit Parties ”) entered into that certain credit
agreement (the “ Original Credit Agreement ”)
with the lenders named therein, Citicorp North America, Inc., as
administrative agent (the “ Existing Administrative
Agent ”), and Existing Bank Agent.
WHEREAS, on the Original Effective
Date, Crown Euroco issued $1,085,000,000 in aggregate principal
amount of Second Priority Dollar Notes and
€285,000,000
in aggregate principal amount of Second Priority
Euro Notes (collectively with the Second Priority Dollar Notes, the
“ Second Priority Notes ”), in each case under
an Indenture dated as of the Original Effective Date among Crown
Euroco, the guarantors named therein and 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 ”) (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 $725,000,000 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 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 ”) (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 September 1, 2004 (the
“ First Amendment Effective Date ”), Crown
Euroco issued €350,000,000 of First Priority Notes under an
Indenture dated as of the First Amendment Effective Date 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 were used
(together with the proceeds of the Loans under the 2004 Credit
Agreement) to refinance 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, on the First Amendment
Effective Date, Existing Bank Agent, the First Priority Notes
Trustee, the Second Priority Notes Trustee, the Third Priority
Notes Trustee, Existing Euro Collateral Agent, Crown Euroco and the
other Euro Pledgors (as defined in the First Amendment) entered
into the First Amended and Restated Euro Intercreditor and
Collateral Agency Agreement (the “ First Amendment
”).
WHEREAS, on the First Amendment
Effective Date, the Credit Parties entered into that certain credit
agreement (the “ 2004 Credit Agreement ”) with
the lenders named therein, the Existing Administrative Agent and
Existing Bank Agent.
WHEREAS, on or about October 6, 2004
Crown Euroco issued an additional €110,000,000 of First
Priority Notes under the First Priority Notes Indenture, the
proceeds of which were used to extend a loan to Crown Usco to repay
its outstanding term loan under the 2004 Credit Agreement and for
general corporate purposes.
WHEREAS, on the date hereof, Crown
Usco and Crown Americas Capital Corp. (“ Crown Capital
”) intend to issue $1,100,000,000 of senior unsecured notes
(the “ Senior Notes ”) under two Indentures
dated as of the date hereof among Crown Usco and Crown Capital,
as
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applicable, the guarantors named therein and
Citibank, N.A., as senior notes trustee (collectively, as amended,
amended and restated, supplemented, refinanced, replaced or
otherwise modified from time to time as permitted by the Credit
Agreement, the “ Senior Notes Indenture ”), the
proceeds of which shall be used (together with the proceeds of the
Loans under the Credit Agreement and certain cash proceeds from the
sale of Crown Holdings’ plastic closures division) to
refinance (the “ Refinancing ”) not less than
66 2
/ 3 % of the outstanding Second Priority
Notes and 66 2 / 3 % of the outstanding Third Priority
Notes, to repay in full all Loans under and terminate the
Obligations and Commitments (each as defined in the 2004 Credit
Agreement) under the 2004 Credit Agreement and for general
corporate purposes.
WHEREAS, simultaneously with the
issuance of the Senior Notes, the Credit 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 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 Bank Agents’
acknowledgment of the termination of the predecessor Credit
Agreement, the new Bank Agents joinder and execution by the
successor Bank Agents’ of an agreement to be bound by the
terms of this Agreement), which Credit Agreement constitutes a
refinancing and replacement of the 2004 Credit Agreement. Bank
Agent under this Agreement is the agent for the Euro Revolving
Lenders, Term B Euro Lenders and any other Lender that from time to
time makes Additional Term Loans to any Non-U.S. Subsidiary of
CCSC, Canadian Administrative Agent is the agent for the Canadian
Revolving Lenders and Deutsche Bank AG, as administrative agent
(the “ Administrative Agent ”) is the agent for
the Term B Dollar Lenders, Dollar Revolving Lenders and any Lenders
that from time to time advance Term Loans to CCSC or any U.S.
Subsidiary of CCSC (as defined in the Credit Agreement) only from
time to time under the Credit Agreement (the “ Lenders
”) (it being understood that the Term B Dollar Lenders,
Dollar Revolving Lenders and any Lenders that from time to time
advance Term Loans to CCSC or any U.S. Subsidiary of CCSC (as
defined in the Credit Agreement) under the Credit Agreement shall
have no rights and obligations under this Agreement).
WHEREAS, on the date hereof,
Existing U.K. Administrative Agent and Existing Euro Collateral
Agent have resigned as U.K. Administrative Agent and Euro
Collateral Agent, respectively, and the Lenders under the Credit
Agreement have appointed Deutsche Bank AG New York Branch as U.K.
Administrative Agent and Euro Collateral Agent.
WHEREAS, on the date hereof, the
parties to the Second Priority Notes Indenture and the Third
Priority Notes Indenture shall amend each of the Second Priority
Notes Indenture and the Third Priority Notes Indenture to, among
other things, eliminate the requirement for any security to secure
the Second Priority Notes and Third Priority Notes and to authorize
the Second Priority Notes Trustee and Third Priority Notes Trustee
to effectuate the release of the Second Priority Notes
Trustee’s and Third Priority Notes Trustee’s respective
Liens on the Collateral.
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WHEREAS, pursuant to the terms
hereof, on the date hereof, Crown Euroco represents to Euro
Collateral Agent and the First Priority Notes Trustee, that the
entering into of the Credit Agreement is permitted by the First
Priority Notes Indenture and that no consents or approvals are
required thereunder.
WHEREAS, on 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 Existing
Euro Collateral Agent the Euro Security Documents (as defined in
the First Amendment), which Euro Security Documents were amended
and restated on the First Amendment Effective Date.
WHEREAS, on or after the date hereof
the Euro Pledgors executed and delivered to Euro Collateral Agent
either (i) further amendments to the Euro Security Documents (as
defined in the First Amendment) or (ii) new Euro Security
Documents, all as set forth on Schedule 2 hereto and any
such Euro Security Documents for the sole benefit of the Second
Priority Notes Trustee and/or the Third Priority Notes Trustee have
been terminated.
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 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 (as
defined below) pursuant to the Euro 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 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 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 SAS, Crown Euroco or any of
its subsidiaries under such Bank Related Cash Management
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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 Euro Collateral
Agent an acknowledgment on or after the Original Effective Date 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
and the First 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 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, (a) the First Priority
Notes Trustee (for its benefit and for the benefit of the
respective holders of the First Priority Notes), Bank Agent and the
Canadian Administrative Agent (for their respective benefit and for
the benefit of Euro Collateral Agent, U.K. Administrative Agent and
the Lenders), (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, 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) and (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) desire
to set forth (i) certain additional provisions regarding the
appointment, duties and responsibilities of 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.
5
WHEREAS, pursuant to Section 10(b)
of the Original Agreement, as amended by the First Amendment, the
parties hereto are entering into this Agreement in order to amend
and restate the Original Agreement, as amended by the First
Amendment, to, among other things, add appropriate references to
the Credit Agreement, Euro Collateral Agent, Canadian
Administrative Agent and Bank Agent.
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
and the Additional Subsidiary Borrower Collateral pledged to Euro
Collateral Agent for the benefit of the Euro Revolving Lenders,
Term B Euro Lenders, any other Lender that from time to time makes
Additional Term Loans to any Non-U.S. Subsidiary of CCSC and the
Canadian Revolving 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 Euro Collateral Agent for
the benefit of Bank Indebtedness only.
“ Additional First Priority
Bank Indebtedness ” means (i) Additional Term 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
and (ii) Loans (as defined in the Credit Agreement) pursuant to an
Additional Facility (as defined in the Credit Agreement) incurred
by any Non-U.S. Subsidiary of CCSC.
“ 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 and the
First 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 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.
“ 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
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 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 entered into pursuant to Section 12(c) of the
Credit Agreement or any other documents executed or delivered with
respect to any Additional First Priority Bank
7
Indebtedness and the Euro Security Documents) in
each case, as amended, amended and restated, supplemented,
refinanced, replaced or otherwise modified from time to
time.
“ Debentures ”
means each of the following:
|
|
(i)
|
$200,000,000 8%
Debentures due 2023 of CCSC issued under the 1993
Indenture;
|
|
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(ii)
|
$350,000,000
7 3
/ 8 % Debentures due 2026 of CCSC issued
under the 1996 Indenture; and
|
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(iii)
|
$150,000,000
7 1
/ 2 % Debentures due 2096 of CCSC issued
under the 1996 Indenture.
|
“ Enforcement Action
” means any action whatsoever to:
(1) 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;
(2) recover all or any part of any
Intercompany Debt (including by exercising any right of set-off or
combination of accounts);
(3) 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;
(4) 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
(5) commence legal proceedings
against the applicable Intercompany Creditor.
“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
Permitted Public Debt (as defined in the Credit Agreement);
provided that such person becomes a Credit Party (as defined
in the Credit Agreement) and complies with Section 7.11 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.
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“ 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 Indebtedness to the
extent outstanding on the date hereof after giving effect to the
Transactions (as defined in the Credit Agreement):
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(ii)
|
$300,000,000
original principal amount of 7% Notes due 2006 of Crown Cork &
Seal Finance PLC issued under the 1996 Indenture, of which
approximately $166,000,000 remain outstanding as of the date
hereof.
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“ Financing Documents
” means, collectively, the Credit Documents, the First
Priority Notes Documents, the Bank Related Debt Agreements and the
Additional First Priority Capital Markets 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,
Canadian Borrower, 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.
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“ First Priority Notes
” means the €460,000,000 in aggregate principal amount
of 6 1
/ 4 % First Priority Senior Secured
Notes due 2011 of Crown Euroco 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.
“ 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 Second Amended and Restated Global
Participation and Proceeds Sharing Agreement dated as of the date
hereof among Bank Agent, Deutsche Bank AG New York Branch, as
administrative agent, The Bank of Nova Scotia, as Canadian
administrative agent, the First Priority Notes Trustee, the Second
Priority Notes Trustee, the Third Priority Notes Trustee, Euro
Collateral Agent on behalf of the Euro Secured Parties and 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.
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“ 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.
“ 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, Canadian Borrower 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 Dollar
Notes ” means the $1,085,000,000 in original aggregate
principal amount of 9.50% Second Priority Senior Secured Notes due
2011 of Crown Euroco issued under the Second Priority Notes
Indenture.
“ Second Priority Euro
Notes ” means the €285,000,000 in original
aggregate principal amount of 10.25% Second Priority Senior Secured
Notes due 2011 of Crown Euroco issued under the Second Priority
Notes Indenture.
“ Third Priority Notes
” means the $725,000,000 in original aggregate principal
amount of 10 .875% Third Priority Senior Secured Notes due 2013 of
Crown Euroco issued under the Third Priority Notes
Indenture.
“ U.S. Intercreditor
Agreement ” means the Second Amended and Restated U.S.
Intercreditor and Collateral Agency Agreement dated as of the date
hereof among Deutsche Bank AG New York Branch, as administrative
agent, U.S. collateral agent and U.K. administrative agent, The
Bank of Nova Scotia, as Canadian administrative agent, the First
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 .
Bank Agent, the Canadian Administrative Agent
and the First Priority Notes Trustee each hereby irrevocably and
unconditionally appoints, and each Bank Related Hedging Exchanger,
Bank
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Related Cash Management Exchanger and Additional
First Priority Capital Markets Indebtedness Representative (each
such party, a “ Euro Secured Party ”) signing an
acknowledgment hereto on or after the Original Effective Date, by
such signing, irrevocably and unconditionally appoints, Deutsche
Bank AG New York Branch 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
Euro Collateral Agent to act as agent for the Euro Secured Parties
and to continue to act as fondé de pouvoir within the
meaning of Article 2692 of the Civil Code of Quebec (but only
insofar as the hypothecs governed by the laws of Quebec are
concerned) 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 Euro
Collateral Agent (acting on the instructions of the Requisite
Obligees (as defined below)), desirable to perfect the Liens
granted to 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, 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. 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.
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, 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 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 Euro Collateral Agent with respect to any of the
foregoing actions to be taken pursuant to any of the Euro Security
Documents, Bank Agent (including on behalf of any Canadian
Revolving Lenders and 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
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