Exhibit 4.2
THIS BEARER SECURITY DEPOSITARY AGREEMENT is made as
of , 1996 (this "Agreement") by and between CROWN CORK &
SEAL COMPANY, INC., a Pennsylvania corporation (the "Company"),
CROWN CORK & SEAL FINANCE PLC, a public limited company organized
under the laws of England and Wales (the "Issuer") and THE BANK
OF NEW YORK, a New York banking corporation, as Bearer Security
Depositary (the "Bearer Security Depositary").
ARTICLE I
Definitions and Other General Provisions
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SECTION 1.01. Definitions. Terms not defined herein have the
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meanings ascribed to them in the Indenture. The following terms, as used
herein, have the following meanings:
"Bearer Security Depositary" means the party named as such in this
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Agreement or its nominee or the custodian of either until a successor shall have
become such pursuant to Section 3.08 hereof, and thereafter "Bearer Security
Depositary" shall mean such successor or its nominee or the custodian of either.
"Book-Entry Interest" means beneficial interests in the Notes that
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will be shown on records maintained in book-entry form by the Depositary.
"Book-Entry Register" has the meaning ascribed thereto in Section 2.03
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hereof.
"Business Day" means each day that is not a Legal Holiday.
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"Certificateless Depositary Interests" means, with respect to any
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series of Notes, the beneficial interests that shall at all times prior to the
issuance of Definitive Notes in respect thereof represent the right to receive
100% of the principal and any premium, interest and Additional Amounts in
respect of the underlying Global Note, and that is issued to the Depositary or
its nominee by the Bearer Security Depositary.
"Corporate Trust Office" means the office of the Bearer Security
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Depositary in the Borough of Manhattan, The City of New York, at which any
particular time its corporate trust business shall be principally administered,
which at the date hereof is located at 101 Barclay Street, Floor 21 West, New
York, NY 10286.
"Definitive Notes" means, with respect to any series of Notes, the
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Notes in definitive form issued pursuant to Section 3.12 of the Indenture.
"Depositary" means The Depository Trust Company or its nominee, or any
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successor thereto, as the Holder of the Certificateless Depositary Interests as
recorded on the Book-Entry Register.
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"Global Notes" means the Global Securities in bearer form issued
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pursuant to Section 3.12 of the Indenture.
"Holder" means the Depositary.
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"Indenture" means the indenture dated as of , 1996, among
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the Company, the Subsidiary Issuers named therein and The Bank of New York, as
Trustee, as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental thereto entered into pursuant
to the applicable provisions thereof, including for all purposes to the extent
applicable, the provisions of the TIA that are deemed to be a part of and govern
such instrument.
"Interest Payment Date" means and of each
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year, commencing on , 1997.
"Issuer" means the party named as such in this Agreement until a
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successor replaces it pursuant to the applicable provisions of the Indenture
and, thereafter, means the successor.
"Issuer Order" means a written order or request signed in the name of
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the Issuer by its Chief Executive or Deputy Chief Executive, and by its Chief
Financial Officer, Treasurer, Assistant Treasurer, Secretary or any other
officer so authorized and delivered to the Trustee.
"Legal Holiday" has the meaning ascribed thereto in the Indenture.
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"Letter of Representations" means the Letter of Representations to the
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Depositary dated , 1996, from the Bearer Security Depositary and the
Issuer.
"Note" means any % Note due 2003 or % Note due 2006 of the
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Issuer issued under the Indenture.
"Opinion of Counsel" means a written opinion from legal counsel, who
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may be an employee of or counsel to the Issuer and who shall otherwise be
satisfactory to the Bearer Security Depositary.
"Responsible Officer", with respect to the Bearer Security Depositary,
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means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Bearer
Security Depositary customarily performing functions similar to those performed
by any of the above-designated officers and also means, with respect to a
particular corporate trust or agency matter, any other officer to whom such
matter is referred because of his or her knowledge and familiarity with the
particular subject.
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SECTION 1.02. Rules of Construction. Unless the context otherwise
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requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
(c) "including" means including without limitation; and
(d) words in the singular include the plural and words in the plural
include the singular.
ARTICLE II
Book-Entry Interests
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SECTION 2.01 Deposit of the Global Notes. The Bearer Security
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Depositary hereby accepts custody of the Global Notes from the Trustee and shall
act as Bearer Security Depositary in accordance with the terms of this
Agreement. The Bearer Security Depositary shall hold each such Global Note at
its Corporate Trust Office in The City of New York or at such place or places as
it shall determine with the consent of the Issuer and shall issue the
Certificateless Depositary Interests in accordance with the Letter of
Representations.
SECTION 2.02. Book-Entry System. (a) Upon acceptance by the
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Depositary of the Certificateless Depositary Interests for entry into its book-
entry settlement system in accordance with the terms of the Letter of
Representations, Book-Entry Interests will be issued by the Depositary and
traded through the Depositary's book-entry system, and ownership of such Book-
Entry Interests shall be shown in, and the transfer of such ownership shall be
effected only through, records maintained by (i) the Depositary or its
successors or (ii) institutions that have accounts with the Depositary or its
successors. Book-Entry Interests shall be transferable only as units
representing authorized denominations of the Notes.
(b) The Certificateless Depositary Interests shall be issuable only
to the Depositary, or successors of the Depositary or their respective nominees.
Except as provided in Section 2.07, no owner of beneficial interests in the
Certificateless Depositary Interests shall be entitled to receive a Note on
account of such beneficial interest, and such beneficial owner's interest
therein shall be shown only in accordance with the procedures of the Depositary
as set forth in the Letter of Representations.
SECTION 2.03. Registration of Transfer of the Certificateless
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Depositary Interests. The Bearer Security Depositary agrees to maintain at the
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Bearer Security Depositary's Corporate Trust Office a register (the "Book-Entry
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Register") in which the Bearer Security Depositary shall (i) record the
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Depositary as the initial registered owner of the Certificateless Depositary
Interests and (ii) record the registration and transfer of the Certificateless
Depositary Interests. The Certificateless Depositary Interests cannot be
transferred unless such transfer is recorded on the Book-Entry Register. The
Bearer Security Depositary shall not constitute the agent of the Issuer for any
other purpose and, in particular, it shall not constitute the agent of the
Issuer in relation to any payments it may make to
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owners of the Certificateless Depositary Interests or be authorized to undertake
any obligations on behalf of the Issuer.
The foregoing paragraph shall not (i) impose an obligation on the
Bearer Security Depositary to record the interests in or transfers of Book-Entry
Interests held by institutions that have accounts with the Depositary or its
successors or Persons that may hold Book-Entry Interests through such
institutions and (ii) restrict transfers of such Book-Entry Interests held by
such institutions or persons. The person in whose name the Certificateless
Depositary Interests are registered on the Book-Entry Register shall be the
"Holder" of the Certificateless Depositary Interests for the purposes of this
Agreement. The Bearer Security Depositary shall treat the Holder or its nominee
or their respective successors as the absolute owner thereof for all purposes
whatsoever and shall not be bound or affected by any notice to the contrary,
other than an order of a court having jurisdiction over the Bearer Security
Depositary.
SECTION 2.04. Transfer of the Global Notes. The Bearer Security
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Depositary shall hold each Global Note in custody for the benefit of the
Depositary. The Bearer Security Depositary shall not transfer or lend the
Global Notes or any interest therein, except that the Bearer Security Depositary
may transfer the Global Notes as a whole to a successor Bearer Security
Depositary with the consent of the Issuer. Notwithstanding the foregoing, the
Depositary may not under any circumstances request the Bearer Security
Depositary to surrender or deliver the Global Notes to the Depositary. If (i)
the Depositary notifies the Issuer that it is unwilling or unable to continue as
Depositary with respect to the Certificateless Depositary Interests or if at any
time it is unable to continue as, or ceases to be, a clearing agency under the
Exchange Act and a successor Depositary registered as a clearing agency under
the Exchange Act is not appointed by the Issuer within 90 days; (ii) the Bearer
Security Depositary notifies the Issuer and the Trustee under Section 3.08
hereof that it is at any time unwilling or unable to continue as Bearer Security
Depositary and no successor Bearer Security Depositary has been appointed by the
Issuer within 90 days of such notification or (iii) the Issuer shall request
that Definitive Notes be issued, then the Bearer Security Depositary will
promptly notify the Trustee and request the Trustee to issue Definitive Notes in
such names and denominations as the Holder shall specify in accordance with
Section 3.12 of the Indenture and the Bearer Security Depositary agrees that in
such event it will promptly surrender the Global Notes held by it to the Trustee
in connection with such exchange and that such Global Notes will be cancelled
upon issuance of such Definitive Notes.
SECTION 2.05. Cancellation. If the Global Notes are surrendered for
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payment, or for redemption or purchase of Notes evidenced thereby or for
exchange for Definitive Notes to any Person other than the Trustee, such Global
Notes shall, subject to Section 3.09, be delivered to the Trustee for
cancellation.
SECTION 2.06. Payments in Respect of the Certificateless Depositary
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Interests and Global Notes. (a) Whenever the Bearer Security Depositary shall
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receive from the Trustee (or other paying agent under the Indenture) any payment
on the Global Notes, such payments shall be distributed promptly to the Holder
on the payment date for the Global Notes. So long as the Depositary is the
Holder, such payments shall be made in accordance with the Letter of
Representations.
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(b) The Bearer Security Depositary will forward to the Company, the
Issuer or their agents such information from its records as such persons may
reasonably request to enable such persons to file necessary reports with
governmental agencies, and the Bearer Security Depositary, the Company, the
Issuer or their agents may (but shall not be required to) file any such reports
necessary to obtain benefits under any applicable tax treaties for the Holder
of, or beneficial owners of interests in, the Certificateless Depositary
Interests.
SECTION 2.07. Change in Principal Amount of Global Notes. (a) In
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the event that the Issuer exercises any right of redemption in respect of, or is
required to purchase, any Notes constituting a part of a Global Note pursuant to
the Indenture, the Bearer Security Depositary shall promptly deliver such Global
Note to the Trustee and request the Trustee to endorse Schedule A to such Global
Note to reflect the reduction in the principal amount of such Global Note as a
result of such redemption or purchase. The redemption price or purchase price
payable in connection with the redemption or purchase of a portion of such
Global Note shall be equal to the amount received by the Bearer Security
Depositary in respect of the aggregate principal amount of the Notes so redeemed
or purchased.
(b) If an Event of Default (as defined in the Indenture) occurs and
is continuing, the Bearer Security Depositary shall, at the request of the
Holder of, or beneficial owner of an interest in a Certificateless Depositary
Interest (such request of the beneficial owner to be given only through the
Holder), promptly deliver the Global Note relating to such Certificateless
Depositary Interest to the Trustee and request that the Trustee exchange all or
part of such Global Note for one or more Definitive Notes registered as
specified by the Holder and endorse Schedule A to such Global Note to reflect
the reduction in principal amount of such Global Note resulting from such
exchange; provided that the principal amount at maturity of such Definitive
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Notes and of such Global Note after such exchange shall be $1,000 or integral
multiples thereof.
(c) Whenever the principal amount at maturity of a Global Note held
by the Bearer Security Depositary is changed by the Trustee the Bearer Security
Depositary shall notify the Depositary of the corresponding change in the
principal amount of the related Certificateless Depositary Interest.
SECTION 2.08. Record Date. (a) Any interest payment to be made in
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respect of the Global Notes shall be made to the Holder who is registered on the
Book-Entry Register at the close of business (whether or not a business day) on
the or immediately preceding each Interest Payment
Date, as the case may be.
(b) Whenever the Bearer Security Depositary shall receive notice of
any action to be taken by the Holder of a Global Note or holders of interests
therein, or whenever the Bearer Security Depositary otherwise deems it
appropriate in respect of any other matter, the Bearer Security Depositary shall
fix a record date for the determination of the Holder who shall be entitled to
take any such action or to act in respect of any such matter.
SECTION 2.09. Action in Respect of the Certificateless Depositary
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Interests or the Global Notes. (a) Not later than 10 days after receipt by the
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Bearer Security Depositary of notice of any solicitation of consents or request
for a waiver or other action by the Holder of a Global Note or
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holders of interests therein under this Agreement or the Indenture, the Bearer
Security Depositary shall mail, at the expense of the Company, to the Holder a
notice containing (i) such information as is contained in such notice, (ii) a
statement that the Holder at the close of business on a specified record date
(established in accordance with Section 2.08 hereof) will be entitled, subject
to the provisions of or governing the Certificateless Depositary Interests or
Global Notes, as the case may be, to instruct the Bearer Security Depositary as
to the consent, waiver or other action, if any, pertaining to the
Certificateless Depositary Interests or Global Notes, as the case may be, and
(iii) a statement as to the manner in which such instructions may be given.
Upon the written request of the Holder received on or before the date
established by the Bearer Security Depositary for such purpose, the Bearer
Security Depositary shall endeavor insofar as practicable and permitted under
the provisions of or governing the Certificateless Depositary Interests or
Global Notes, as the case may be, to take such action regarding the requested
consent, waiver or other action in respect of such Certificateless Depositary
Interests or Global Notes, as the case may be, in accordance with any
instructions set forth in such request. The Bearer Security Depositary shall
not itself exercise any discretion in the granting of consents or waivers or the
taking of any other action in respect of the Certificateless Depositary
Interests or Global Notes.
(b) The Holder may direct the time, method and place of conducting
any proceeding for any remedy available to the Bearer Security Depositary or of
exercising any trust or power conferred on the Bearer Security Depositary.
However, the Bearer Security Depositary may refuse to follow any direction that
conflicts with law or this Agreement or the Indenture or, subject to Section
3.01 hereof, that the Bearer Security Depositary determines would involve it in
personal liability.
SECTION 2.10. Changes Affecting the Global Notes. Upon any
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reclassification of the Global Notes or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Issuer
or to which the Issuer is a party, any securities that shall be received by the
Bearer Security Depositary in exchange for or in respect of a Global Note shall
be treated as a new Global Note under this Agreement and any corresponding
Certificateless Depositary Interest shall thenceforth represent such new
securities so received.
SECTION 2.11. Surrender of the Global Notes. In the event of the
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redemption, payment or purchase in full of all the Notes represented by the
Global Notes, then the Global Notes shall become void and the Bearer Security
Depositary shall surrender the Global Notes to the Trustee for cancellation.
SECTION 2.12. Reports. The Bearer Security Depositary shall
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immediately (and in no event later than 10 days from receipt) send to the Holder
a copy of any notices, reports and other communications received from the
Company or the Issuer that are received by the Bearer Security Depositary as
holder of the Global Notes.
SECTION 2.13. Additional Amounts. All payments made by the Bearer
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Security Depositary pursuant to this Agreement in respect of the Certificateless
Depositary Interests shall be made without withholding or deduction for, or on
account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature (collectively, "Taxes") imposed or levied by or on
behalf of the United Kingdom or any political subdivision thereof or any
authority having power
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to tax therein (each a "U.K. Tax Authority"), unless such Taxes are required by
law to be withheld or deduced. In that event, the Bearer Security Depositary
will pay by way of additional interest such additional amounts (the "Additional
Amounts") as will result (after deduction of such Taxes payable in respect of
such Additional Amounts) in the payment to the Holder of the amounts which would
have been payable in respect of the Certificateless Depositary Interests had no
such withholding or deduction been required (subject to the limitations
contained in the Note, such limitations to be applied for these purposes by
treating the owner of any interest in the Certificateless Depositary Interests
as a holder or beneficial owner for purposes of the limitations contained in the
Note). Notwithstanding anything to the contrary provided above, the Bearer
Security Depositary shall pay or cause to be paid any Additional Amounts only
out of funds that shall be received by it from the Company or the Issuer for
that purpose.
At least 10 days prior to the first date on which payment of
principal, premium (if any), interest and Additional Interest (as defined in the
Indenture) (if any) on the Certificateless Depositary Interests is to be made,
and at least 10 days prior to any subsequent such date if there has been any
change with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Issuer will furnish the Bearer Security Depositary with an
Officers' Certificate instructing the Bearer Security Depositary whether such
payment of principal, premium (if any), interest or Additional Interest (if any)
on such Certificateless Depositary Interests shall be made to the Holder without
withholding for or on account of any tax, assessment or other governmental
charge. If any such withholding shall be required, then such Officers'
Certificate shall specify the amount required to be withheld on such payments to
the Holder. The Bearer Security Depositary shall have no responsibility for
determining whether the Holder or any owner of a Global Note is entitled to the
payment of Additional Amounts in accordance with the preceding paragraph, but
shall be entitled to rely conclusively for this purpose on an Officers'
Certificate or on certifications from the Depositary, which need only specify
the amount of Additional Amounts payable to the Holder, net of amounts to which
the Holder or any owner of a Global Note is not entitled in accordance with the
preceding paragraph. The Company and the Issuer shall, jointly and severally,
indemnify the Bearer Security Depositary for, and hold it harmless against, any
loss, liability or expense reasonably incurred without negligence or bad faith
on its part arising out of or in connection with actions taken or omitted by it
in reliance on any Officers' Certificate furnished to it pursuant to this
Section 2.13.
ARTICLE III
The Bearer Security Depositary
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SECTION 3.01. Certain Duties and Responsibilities. (a) The Bearer
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Security Depositary undertakes to perform such duties and only such duties as
are specifically set forth in this Agreement.
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(b) No provision of this Agreement shall be construed to relieve the
Bearer Security Depositary from liability for its own negligent action, its own
negligent failure to act or its own wilful misconduct, except that:
(i) the duties and obligations of the Bearer Security Depositary with
respect to the Certificateless Depositary Interests and the Global Notes
shall be determined solely by the express provisions of this Agreement and
the Bearer Security Depositary shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Agreement, and no implied covenants or obligations shall be read into
this Agreement against the Bearer Security Depositary; and
(ii) in the absence of bad faith on its part, the Bearer Security
Depositary may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Bearer Security Depositary and
conforming to the requirements of this Agreement, but in the case of any
such statements, certificates or opinions that by any provision hereof are
specifically required to be furnished to the Bearer Security Depositary,
the Bearer Security Depositary shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Agreement.
(c) The Bearer Security Depositary shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the Bearer Security
Depositary, unless it shall be proved that the Bearer Security Depositary was
negligent in ascertaining the pertinent facts.
(d) The Bearer Security Depositary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holder relating to the time, method and place of
conducting any proceeding for any remedy available to the Bearer Security
Depositary, or exercising any power conferred upon the Bearer Security
Depositary, under this Agreement or the Indenture.
(e) No provision of this Agreement shall require the Bearer Security
Depositary to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Bearer Security Depositary shall be subject to the
provisions of this Section 3.01.
(g) The Bearer Security Depositary owes no fiduciary duties to any
person by virtue of this Agreement except as expressly set forth herein.
SECTION 3.02. Notice of Default. Within 90 days after the occurrence
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of any Event of Default with respect to a Global Note (a "Note Default") of
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which a Responsible Officer of the Bearer Security Depositary assigned to its
corporate trust department has actual knowledge, the
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Bearer Security Depositary shall transmit by mail to the Holder in the manner
provided in Section 4.02 hereof, notice of such Note Default, unless such Note
Default shall have been cured or waived.
SECTION 3.03. Certain Rights of Bearer Security Depositary. Subject
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to the provisions of Section 3.01 hereof:
(a) the Bearer Security Depositary may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, security or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or
Issuer Order and any resolution of the Board of Directors of the Issuer, as
the case may be, may be sufficiently evidenced by a Board Resolution;
(c) the Bearer Security Depositary may consult with counsel of its
selection and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection with respect to any
action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon in accordance with such advice or Opinion of Counsel;
(d) the Bearer Security Depositary shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security or other paper or document, but the Bearer Security Depositary, in
its discretion, may make reasonable further inquiry or investigation into
such facts or matters directly related to the issuance of the Global Notes
and if the Bearer Security Depositary shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Issuer, at reasonable times during normal
business hours, personally or by agent or attorney, but not more than once
in any twelve month period;
(e) the Bearer Security Depositary may execute any of the powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys;
(f) the Bearer Security Depositary shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement or the
Indenture at the request, order or direction of the Holder pursuant to this
Agreement, unless the Holder shall have offered to the Bearer Security
Depositary reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction; provided that such request, order or direction shall not expose
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the Bearer Security Depositary to personal liability; and
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(g) whenever in the administration of its duties under this Agreement
the Bearer Security Depositary shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting
any action hereunder, such matter (unless other evidence in respect thereof
be herein specifically prescribed) may, in the absence of negligence or bad
faith on the part of the Bearer Security Depositary, be deemed to be
conclusively proved and established by an Officers' Certificate delivered
to the Bearer Security Depositary, and such certificate, in the absence of
negligence or bad faith on the part of the Bearer Security Depositary,
shall be full warrant to the Bearer Security Depositary for any action
taken, suffered or omitted by it under the provisions of the Agreement,
upon the faith thereof.
SECTION 3.04. Not Responsible for Recitals or Issuance of Notes. The
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recitals contained in the Indenture and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Issuer,
or the Guarantor, as the case may be, and the Bearer Security Depositary assumes
no responsibility for their correctness. The Bearer Security Depositary makes
no representations as to the validity or sufficiency of this Agreement or of the
Notes. The Bearer Security Depositary shall not be accountable for the use or
application by the Issuer of the proceeds with respect to the Notes.
SECTION 3.05. Money Held in Trust. Money held by the Bearer Security
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Depositary in trust hereunder need not be segregated from other funds held by
the Bearer Security Depositary, except to the extent required by law. The
Bearer Security Depositary shall be under no obligation to invest or pay
interest on any money received by it hereunder, except as otherwise agreed in
writing with the Issuer. Any interest accrued on funds deposited with the
Bearer Security Depositary under this Agreement shall be paid to the Issuer from
time to time and the Holder shall have no claim to any such interest.
SECTION 3.06. Compensation and Reimbursement. The Company and the
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Issuer, jointly and severally, agree:
(a) to pay to the Bearer Security Depositary from time to time such
compensation as the Company, the Issuer and the Trustee shall from time to
time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law with regard to
the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Bearer Security Depositary and any predecessor Bearer Security Depositary
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Bearer Security Depositary in accordance with any
provision of this Agreement (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(c) to indemnify the Bearer Security Depositary and any predecessor
Bearer Security Depositary for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of
this Agreement and its duties hereunder, including the costs and expenses
of
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defending itself against or investigating any claim of liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
SECTION 3.07. Bearer Security Depositary Required; Eligibility. At
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all times when there is a Bearer Security Depositary hereunder, such Bearer
Security Depositary shall be a corporation organized and doing business under
the laws of the United States of America, any state thereof or the District of
Columbia, having, together with its parent, a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by Federal, state or
District of Columbia authority and willing to act on reasonable terms. Such
corporation shall have its principal place of business in the Borough of
Manhattan, The City of New York, if there be such a corporation in such location
willing to act upon reasonable and customary terms and conditions. If such
corporation, or its parent, publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 3.07, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Bearer Security Depositary hereunder shall at all times be the Trustee under the
Indenture, subject to receipt of an Opinion of Counsel that the same Person is
precluded by law from acting in such capacities. If at any time the Bearer
Security Depositary shall cease to be eligible in accordance with the provisions
of this Section 3.07, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article.
SECTION 3.08. Resignation and Removal; Appointment of Successor.
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(a) No resignation or removal of the Bearer Security Depositary and no
appointment of a successor Bearer Security Depositary pursuant to this Article
shall become effective until (i) the acceptance of appointment by the successor
Bearer Security Depositary in accordance with the applicable requirements of
Section 3.09 hereof or (ii) the issuance of Definitive Notes in accordance with
Section 2.04 or Section 2.07 hereof and the Indenture.
(b) The Bearer Security Depositary may resign with respect to the
Global Notes by giving written notice thereof to the Company, the Issuer and the
Holder, in accordance with Section 4.01 and Section 4.02 hereof, 90 days prior
to the effective date of such resignation. If an instrument of acceptance by a
successor Bearer Security Depositary required by Section 3.09 hereof shall have
been delivered to the Bearer Security Depositary, the Bearer Security Depositary
may be removed at any time upon the filing with it of an instrument in writing
signed on behalf of the Company and the Issuer and specifying such removal and
the date when it is intended to become effective. If the instrument of
acceptance by a successor Bearer Security Depositary required by Section 3.09
hereof shall not have been delivered to the Bearer Security Depositary within 30
days after the giving of such notice of resignation, the resigning Bearer
Security Depositary may petition any court of competent jurisdiction for the
appointment of a successor Bearer Security Depositary eligible under this
Article, including without limitation Section 3.07.
(c) If at any time:
(i) the Bearer Security Depositary shall cease to be eligible under
Section 3.07 hereof, or shall cease to be eligible as Trustee under the
Indenture, and shall fail to resign after written request therefor by the
Issuer or by the Holder, or
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(ii) the Bearer Security Depositary shall become incapable of acting
with respect to the Certificateless Depositary Interests or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the Bearer
Security Depositary or of its property shall be appointed or any public
officer shall take charge or control of the Bearer Security Depositary or
of its property or affairs for the purpose of rehabilitation, conservation
or liquidation,
then, in any such case, (i) the Issuer, by Board Resolution, may remove the
Bearer Security Depositary and appoint a successor Bearer Security Depositary,
or (ii) the Holder may, on behalf of itself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Bearer
Security Depositary and the appointment of a successor Bearer Security
Depositary or Book-Entry Depositaries, unless Definitive Notes have been issued
in accordance with the Indenture. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Bearer Security
Depositary and appoint a successor Bearer Security Depositary.
(d) If the Bearer Security Depositary shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Bearer
Security Depositary for any cause, the Issuer, by Board Resolution, shall
promptly appoint a successor Bearer Security Depositary (other than the Issuer)
and shall comply with the applicable requirements of Section 3.09 hereof. If no
successor Bearer Security Depositary with respect to the Global Notes shall have
been so appointed by the Issuer and accepted appointment in the manner required
by Section 3.09, the Holder may, on behalf of itself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Bearer Security Depositary eligible under this Article, including
without limitation Section 3.07, unless Definitive Notes have been issued in
accordance with the Indenture.
(e) The Issuer shall give, or shall cause such successor Bearer
Security Depositary to give, notice of each resignation and each removal of a
Bearer Security Depositary and each appointment of a successor Bearer Security
Depositary to the holder in accordance with Section 4.02 hereof. Each notice
shall include the name of the successor Bearer Security Depositary and the
address of its Corporate Trust Office.
SECTION 3.09. Acceptance of Appointment by Successor. (a) In case
---------------------------------------
of the appointment hereunder of a successor Bearer Security Depositary, every
such successor Bearer Security Depositary so appointed shall execute,
acknowledge and deliver to the Issuer and to the retiring Bearer Security
Depositary an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Bearer Security Depositary shall become
effective and such successor Bearer Security Depositary, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
agencies and duties of the retiring Bearer Security Depositary, with like effect
as if originally named as Bearer Security Depositary hereunder; but, on the
request of the Issuer or the successor Bearer Security Depositary, such retiring
Bearer Security Depositary shall, upon payment of all amounts due and payable to
it pursuant to Section 3.06 hereof, execute and deliver an instrument
transferring to such successor Bearer Security Depositary all the rights and
powers of the retiring Bearer Security Depositary and shall duly assign,
transfer and deliver to such successor Bearer Security Depositary all property
and money held by such retiring Bearer Security Depositary hereunder.
13
(b) Upon request of any such successor Bearer Security Depositary,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Bearer Security Depositary all such
rights, powers and agencies referred to in paragraph (a) of this Section 3.09.
(c) No successor Bearer Security Depositary shall accept its
appointment unless at the time of such acceptance such successor Bearer Security
Depositary shall be eligible under this Article, including without limitation
Section 3.07.
(d) Upon acceptance of appointment by any successor Bearer Security
Depositary as provided in this Section 3.09, the Issuer shall give notice
thereof to the Holder in accordance with Section 4.02 hereof. If the acceptance
of appointment is substantially contemporaneous with the resignation of the
Bearer Security Depositary, then the notice called for by the preceding sentence
may be combined with the notice called for by Section 3.08(b) hereof. If the
Issuer fails to give such notice within 10 days after acceptance of appointment
by the successor Bearer Security Depositary, the successor Bearer Security
Depositary shall cause such notice to be given at the expense of the Issuer.
SECTION 3.10. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Bearer Security Depositary may be
- ---------
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Bearer
Security Depositary shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Bearer Security
Depositary, shall be the successor of the Bearer Security Depositary hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
ARTICLE IV
Miscellaneous Provisions
------------------------
SECTION 4.01. Notices to Bearer Security Depositary or Company. Any
-------------------------------------------------
request, demand, authorization, direction, notice, consent, or waiver or other
document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with,
(a) the Bearer Security Depositary by the Holder, by the Trustee, the
Company or the Issuer shall be sufficient for every purpose hereunder
(unless otherwise herein expressly provided) if made, given, furnished or
filed in writing and personally delivered or mailed, first-class postage
prepaid, to the Bearer Security Depositary at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or at any other address
previously furnished in writing by the Bearer Security Depositary to the
Holder, the Trustee and the Issuer, or
(b) the Company or the Issuer, by the Bearer Security Depositary or by
the Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in
writing and personally delivered or mailed, first-class postage prepaid to
Crown Cork & Seal Company, Inc., 9300 Ashton Road, Philadelphia, PA
14
19136, Attention: Chief Financial Officer, or at any other address
previously furnished in writing to the Bearer Security Depositary by the
Company.
SECTION 4.02. Notice to Holders; Waiver. Where this Agreement
--------------------------
provides for notice to the Holder of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided or as provided in
the Letter of Representations) if in writing and mailed, first-class postage
prepaid, to the Holder at the address notified to the Bearer Security
Depositary, in each case not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice. Where this
Agreement provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by the Holder shall be filed with the Bearer Security Depositary, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Bearer Security
Depositary shall constitute a sufficient notification for every purpose
hereunder.
SECTION 4.03. Effect of Headings and Table of Contents. The Article
-----------------------------------------
and Section headings herein are for convenience only and shall not affect the
construction hereof.
SECTION 4.04. Successors and Assigns. All covenants and agreements
-----------------------
in this Agreement and the Notes by the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 4.05. Separability Clause. In case any provision in this
--------------------
Agreement or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions hereof and
thereof shall not in any way be affected or impaired thereby.
SECTION 4.06. Benefits of Agreement. Nothing in this Agreement, the
----------------------
Notes, or Indenture, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any benefits or any legal or
equitable right, remedy or claim under this Agreement. The holders from time to
time of the Global Notes shall be parties to this Agreement and shall be bound
by all of the terms and conditions hereof and of the Indenture and the Notes, by
their acceptance of delivery of the Book-Entry Interests.
SECTION 4.07. GOVERNING LAW. EXCEPT AS OTHERWISE REQUIRED BY
--------------
MANDATORY PROVISIONS OF LAW, THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT
TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 4.08. Jurisdiction. Each of the Issuer and the Company
-------------
agrees that any legal suit, action or proceeding against it brought by the
Bearer Security Depositary arising out of or
15
based upon this Agreement may be instituted in any state or Federal court in the
Borough of Manhattan, The City of New York, and waives any objection which it
may now or hereafter have to the laying of venue of any such proceeding and
irrevocably submits to the nonexclusive jurisdiction of such courts in any suit,
action or proceeding. Each of the Issuer and the Company has appointed CT
Corporation, 1633 Broadway, New York, New York 10019, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any legal suit,
action or proceeding arising out of or based upon this Agreement which may be
instituted in any state or Federal court in the Borough of Manhattan, The City
of New York, by the Holder or the Bearer Security Depositary, and expressly
accepts the nonexclusive jurisdiction of any such court in respect of any such
action. Such appointment shall be irrevocable. Each of the Issuer and the
Company represents and warrants that the Authorized Agent has agreed to act as
said agent for service of process, and Issuer agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent shall be deemed, in every respect,
effective service of process upon the Company or the Issuer, as applicable.
SECTION 4.09. Counterparts. This Agreement may be executed in any
-------------
number of counterparts by the parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 4.10. Inspection of Agreement. A copy of this Agreement
------------------------
shall be available at all reasonable times during normal business hours at the
Corporate Trust Office of the Bearer Security Depositary for inspection by any
Holder.
SECTION 4.11. Satisfaction and Discharge. This Agreement upon Issuer
---------------------------
Order shall cease to be of further effect, and the Bearer Security Depositary,
at the expense of the Company and the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Agreement, when (i) the
Indenture has been satisfied and discharged pursuant to the provisions thereof
or Definitive Notes have been issued and the Global Notes have been cancelled in
accordance with the provisions of Section 2.05 hereof and the Indenture, (ii)
the Company and the Issuer have paid or caused to be paid all sums payable
hereunder by them and (iii) the Issuer has delivered to the Bearer Security
Depositary an Officer's Certificate and an Opinion of Counsel, stating that all
conditions precedent herein provided relating to the satisfaction and discharge
of this Agreement have been complied with.
SECTION 4.12. Amendments. The Company, the Issuer and the Bearer
-----------
Security Depositary may amend this Agreement without the consent of the
Depositary:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to add to the covenants and agreements of the Bearer Security
Depositary or the Issuer;
(c) to effectuate the assignment of the Bearer Security Depositary's
rights and duties to a qualified successor, as provided herein;
16
(d) to comply with any requirements of the Securities Act, the
Exchange Act or the Investment Company Act of 1940, as amended, and the
TIA; or
(e) to modify, alter, amend or supplement this Agreement in any other
manner that is not adverse to the Depositary or the holders of Book-Entry
Interests.
Except as set forth in this Section 4.12, no amendment that adversely
affects the Depositary or the holders of Book-Entry Interests may be made to
this Agreement or the Book-Entry Interests without the consent of the Depositary
or the holders of the Book-Entry Interests.
SECTION 4.13. Bearer Security Depositary To Sign Amendments. The
----------------------------------------------
Bearer Security Depositary shall sign any amendment authorized pursuant to
Section 4.12 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Bearer Security Depositary. If it does, the
Bearer Security Depositary may but need not sign it. In signing such amendment
the Bearer Security Depositary shall be entitled to receive indemnity reasonably
satisfactory to it and shall be fully protected in reasonably relying upon, an
Officers' Certificate (which need only cover the matters set forth in clause (a)
below) and an Opinion of Counsel stating that:
(a) such amendment is authorized or permitted by this Agreement;
(b) each of the Company and the Issuer has all necessary corporate
power and authority to execute and deliver the amendment and that the
execution, delivery and performance of such amendment has been duly
authorized by all necessary corporate action;
(c) the execution, delivery and performance of the amendment do not
conflict with, or result in the breach of or constitute a default under any
of the terms, conditions or provisions of (i) this Agreement, (ii) the
articles of incorporation of the Company or the Memorandum or Articles of
Association of the Issuer, (iii) any law or regulation applicable to the
Company or the Issuer, (iv) any material order, writ, injunction or decree
of any court or governmental instrumentality applicable to the Company or
the Issuer or (v) any material agreement or instrument to which the Company
or the Issuer is subject; and
(d) such amendment has been duly and validly executed and delivered by
the Company and the Issuer, and this Agreement together with such amendment
constitutes a legal, valid and binding obligation of the Company and the
Issuer enforceable against each of them in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
CROWN CORK & SEAL COMPANY, INC.,
by
---------------------------------------
Name:
Title:
CROWN CORK & SEAL COMPANY, PLC,
by
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Bearer Security
Depositary,
by
---------------------------------------
Name:
Title: