NON-U.S. GUARANTEE AGREEMENT
NON-U.S. GUARANTEE AGREEMENT dated as of February 26, 2003, among CROWN
CORK & SEAL AMERICAS, INC., a Pennsylvania corporation (the "U.S. Borrower"),
CCK INVESTMENTS LLC, a Delaware limited liability company, CCK UK INVESTMENTS
LLC, a Delaware limited liability company, CCK MEXICAN INVESTMENTS LLC, a
Delaware limited liability company, CROWN CANADA INVESTMENTS LLC, a Delaware
limited liability company, and CCK DEUTSCHLAND INVESTMENTS LLC (each such
limited liability company individually, a "Guarantor" and collectively with the
U.S. Borrower, the "Guarantors"), and CITIBANK INTERNATIONAL plc, as
administrative agent (the "U.K. Administrative Agent") for the secured parties
under the Euro Security Documents (the "Euro Secured Parties").
Reference is made to the Credit Agreement dated as of February 26, 2003 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Credit Agreement"), among U.S. Borrower, Crown European Holdings
S.A., a corporation organized under the laws of France (the "Euro Borrower"),
each of the subsidiary borrowers referred to therein (the "Subsidiary Borrowers"
and together with the U.S. Borrower and the Euro Borrower, the "Borrowers"),
CROWN CORK & SEAL COMPANY, INC. ("CCSC"), CROWN HOLDINGS, INC. ("Crown
Holdings") and CROWN INTERNATIONAL HOLDINGS, INC. ("Crown International"), as
Parent Guarantors, the financial institutions listed on Schedule 2.01 thereto,
as such Schedule may from time to time be supplemented or amended (the
"Lenders"); CITICORP NORTH AMERICA, INC. as administrative agent (in such
capacity, the "Administrative Agent") for the Term B Dollar Lenders and
Revolving Dollar Lenders, CITIBANK INTERNATIONAL plc, as administrative agent
(in such capacity, the "U.K. Administrative Agent") for the Term B Euro Lenders
and the Revolving Euro Lenders, DEUTSCHE BANK SECURITIES INC. ("DBSI"), as
syndication agent (in such capacity, the "Syndication Agent"), DBSI and SALOMON
SMITH BARNEY INC. as joint lead arrangers and joint bookrunners (in such
capacity, the "Joint Lead Arrangers") and ABN AMRO BANK N.V., as documentation
agent (in such capacity, the "Documentation Agent"). Terms used herein without
definition shall have the meanings assigned to such terms in the Credit
Agreement.
The Term B Euro Lenders and the Revolving Euro Lenders (collectively,
the "Euro Lenders") have agreed to make Term B Euro Loans and Revolving Euro
Loans (collectively, the "Euro Loans") to the Euro Borrower, pursuant to, and
upon the terms and subject to the conditions specified in, the Credit Agreement.
Each of the Guarantors (other than the U.S. Borrower) is a Non-U.S. Guarantee
Subsidiary of the Euro Borrower and acknowledges that it will derive substantial
benefit from the making of the Euro Loans by the Euro Lenders. The obligations
of the Euro Lenders to make Euro Loans are conditioned on, among other things,
the execution and delivery by the Guarantors of a Non-U.S. Guarantee
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Agreement in the form hereof. As consideration therefor and in order to induce
the Euro Lenders to make Euro Loans, the Guarantors are willing to execute this
Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. Each Guarantor unconditionally guarantees,
jointly with the other Guarantors and severally, as a primary obligor and not
merely as a surety, (a) the due and punctual payment of (i) the principal of and
premium, if any, and interest (including interest accruing during the pendency
of any bankruptcy, insolvency, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the Euro
Loans, when and as due, whether at maturity, by acceleration, upon one or more
dates set for prepayment or otherwise, and (ii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Euro Loan Parties to the Euro Secured Parties under the Credit Agreement and
the other Loan Documents, (b) the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Euro Loan Parties under or
pursuant to the Credit Agreement and the other Loan Documents, (c) the due and
punctual payment and performance of all monies, obligations and other
liabilities of the Euro Borrower or any of its Subsidiaries under each Hedging
Agreement existing on the date hereof with any counterparty that was a Euro
Lender or an Affiliate of a Euro Lender on the date hereof and each Hedging
Agreement entered into with a counterparty that was a Euro Lender (or an
Affiliate of a Euro Lender) at the time such Hedging Agreement was entered into
and (d) the due and punctual payment and performance of all monies, obligations
and other liabilities in respect of overdrafts and related liabilities and
obligations arising from treasury, depository and cash management services which
are in existence on the date hereof owed by the Euro Borrower or any of its
Subsidiaries to any entity that was a Euro Lender or an Affiliate of a Euro
Lender on the date hereof and all such obligations owed by the Euro Borrower or
any of its Subsidiaries to any entity that was a Euro Lender or an Affiliate of
a Euro Lender at the time such obligation arose (all the monetary and other
obligations referred to in the preceding clauses (a) through (d) being
collectively called the "Obligations"). Each Guarantor further agrees that the
Obligations may be extended or renewed, in whole or in part, without notice to
or further assent from it, and that it will remain bound upon its guarantee
notwithstanding any extension or renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, each Guarantor waives presentment to, demand of payment from and
protest to the Euro Loan Parties of any of the Obligations, and also waives
notice of acceptance of its guarantee and notice of protest for nonpayment. To
the fullest extent permitted by applicable law, the obligations of each
Guarantor hereunder shall not be affected by (a) the failure of the U.K.
Administrative Agent or any other Euro Secured Party to assert any claim or
demand or
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to enforce or exercise any right or remedy against the Euro Loan Parties under
the provisions of the Credit Agreement, any other Loan Document or otherwise,
(b) any rescission, waiver, amendment or modification of, or any release from
any of the terms or provisions of, this Agreement, any other Loan Document, any
Non-U.S. Guarantee or any other agreement, including with respect to any other
Guarantor under this Agreement, or (c) the failure to perfect any security
interest in or lien on, or the release of, any of the security held by or on
behalf of the U.K. Administrative Agent or any other Euro Secured Party.
SECTION 3. Security. Each of the Guarantors authorizes the U.K.
Administrative Agent and each of the other Euro Secured Parties to (a) take and
hold security for the payment of this Guarantee and the Obligations and
exchange, enforce, waive and release any such security, (b) apply such security
and direct the order or manner of sale thereof as they in their sole discretion
may determine and (c) release or substitute any one or more endorsees, other
guarantors of other obligors.
SECTION 4. Guarantee of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the U.K. Administrative
Agent or any other Euro Secured Party to any of the security held for payment of
the Obligations or to any balance of any deposit account or credit on the books
of the U.K. Administrative Agent or any other Euro Secured Party in favor of the
Euro Borrower or any other Person.
SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Obligations), including any claim of waiver, release,
surrender, alteration or compromise of any of the Obligations, and shall not be
subject to any defense or setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the foregoing, the
obligations of each Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the U.K. Administrative Agent or any other
Euro Secured Party to assert any claim or demand or to enforce any remedy under
the Credit Agreement, any other Loan Document or any other agreement, by any
waiver or modification of any provision of any thereof, by any default, failure
or delay, willful or otherwise, in the performance of the Obligations, or by any
other act or omission that may or might in any manner or to any extent vary the
risk of any Guarantor or that would otherwise operate as a discharge of each
Guarantor as a matter of law or equity (other than the indefeasible payment in
full in cash of all the Obligations).
SECTION 6. Defenses of Euro Borrower Waived. To the fullest extent
permitted by applicable law, each of the Guarantors waives any defense based on
or arising out of any defense of any Euro Loan Party or the unenforceability of
the Obligations or any
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part thereof from any cause, or the cessation from any cause of the liability of
any Euro Loan Party, other than the final and indefeasible payment in full in
cash of the Obligations. The Collateral Agent and the other Euro Secured Parties
may, at their election, foreclose on any security held by one or more of them by
one or more judicial or nonjudicial sales, accept an assignment of any such
security in lieu of foreclosure, compromise or adjust any part of the
Obligations, make any other accommodation with any Euro Loan Party or any other
guarantor or exercise any other right or remedy available to them against any
Euro Loan Party or any other guarantor, without affecting or impairing in any
way the liability of any Guarantor hereunder except to the extent the
Obligations have been fully, finally and indefeasibly paid in cash. Pursuant to
applicable law, each of the Guarantors waives any defense arising out of any
such election even though such election operates, pursuant to applicable law, to
impair or to extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against any Loan Party or any other Guarantor or
guarantor, as the case may be, or any security.
SECTION 7. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the U.K. Administrative
Agent or any other Euro Secured Party has at law or in equity against any
Guarantor by virtue hereof, upon the failure of any Euro Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the U.K.
Administrative Agent or such other Euro Secured Party as designated thereby in
cash the amount of such unpaid Obligations. Upon payment by any Guarantor of any
sums to the Collateral Agent or any Secured Party as provided above, all rights
of such Guarantor against any Euro Loan Party arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Obligations. In addition, any
indebtedness of any Loan Party now or hereafter held by any Guarantor is hereby
subordinated in right of payment to the prior payment in full in cash of the
Obligations. If any amount shall erroneously be paid to any Guarantor on account
of (i) such subrogation, contribution, reimbursement, indemnity or similar right
or (ii) any such indebtedness of any Euro Loan Party, such amount shall be held
in trust for the benefit of the Euro Secured Parties and shall forthwith be paid
to the U.K. Administrative Agent to be credited against the payment of the
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 8. Information. Each of the Guarantors assumes all
responsibility for being and keeping itself informed of each other Euro Loan
Party's financial condition and assets, and of all other circumstances bearing
upon the risk of nonpayment of the Obligations and the nature, scope and extent
of the risks that such Guarantors and incurs hereunder, and agrees that none of
the U.K. Administrative Agent or the other Euro Secured Parties will have
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any duty to advise any of the Guarantors of information known to it or any of
them regarding such circumstances or risks.
SECTION 9. Representations and Warranties. Each of the Guarantors
represents and warrants as to itself that all representations and warranties
relating to it contained in the Credit Agreement are true and correct.
SECTION 10. Termination. (a) The Guarantees made hereunder (i) shall
terminate when all the Obligations have been paid in full in cash and the
Lenders have no further commitment to lend under the Credit Agreement and (ii)
shall continue to be effective or be reinstated, as the case may be, if at any
time payment, or any part thereof, of any Obligation is rescinded or must
otherwise be restored by any Euro Secured Party or any Guarantor upon the
bankruptcy or reorganization of the Euro Borrower, any Guarantor or otherwise.
In connection with the foregoing, the U.K. Administrative Agent shall execute
and deliver to such Guarantor or Guarantor's designee, at such Guarantor's
expense, any documents or instruments which such Guarantor shall reasonably
request from time to time to evidence such termination and release.
(b) If the Equity Interests of a Guarantor (other than the U.S.
Borrower) are sold, transferred or otherwise disposed of to a Person that is not
an Affiliate that results in such Guarantor ceasing to be a Subsidiary and such
Guarantor, after giving effect to such sale, transfer or disposition is released
from all of its Obligations in respect of any Indebtedness of Crown Holdings or
any of its Subsidiaries, or upon the effectiveness of any written consent
pursuant to Section 10.09 of the Credit Agreement to the release of the
guarantee granted by such Guarantor (other than the U.S. Borrower) hereby, such
Guarantor shall be released from its obligations under this Agreement without
further action. In connection with such release, the U.K. Administrative Agent
shall execute and deliver to such Guarantor, at such Guarantor's expense, all
documents that such Guarantor shall reasonably request to evidence such
termination or release. Any execution and delivery of documents pursuant to this
Section 10(b) shall be without recourse to or warranty by the U.K.
Administrative Agent.
SECTION 11. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements or on behalf of the Guarantors that are contained in
this Agreement shall inure to the benefit of each party hereto and their
respective successors and assigns. This Agreement shall become effective as to
any Guarantor when a counterpart hereof executed on behalf of such Guarantor
shall have been delivered to the U.K. Administrative Agent, and a counterpart
hereof shall have been executed on behalf of the U.K. Administrative Agent, and
thereafter shall be binding upon such Guarantor and the U.K. Administrative
Agent and their respective successors and assigns, and shall inure to the
benefit of such Guarantor, the U.K. Administrative Agent and the other Euro
Secured Parties, and their respective successors and
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assigns, except that no Guarantor shall have the right to assign its rights or
obligations hereunder or any interest herein (and any such attempted assignment
shall be void). This Agreement shall be construed as a separate agreement with
respect to each Guarantor and may be amended, modified, supplemented, waived or
released with respect to any Guarantor without the approval of any other
Guarantor and without affecting the obligations of any other Guarantor
hereunder.
SECTION 12. Waivers; Amendment. (a) No failure or delay of the U.K.
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the U.K. Administrative Agent
hereunder and of the other Euro Secured Parties under the other Loan Documents
are cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Guarantor therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) below, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. No notice or demand on any Guarantor in any case shall entitle such
Guarantor to any other or further notice or demand in similar or other
circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantors with respect to which such waiver, amendment or modification
relates and the U.K. Administrative Agent, with the prior written consent of the
Requisite Lenders (except as otherwise provided in the Credit Agreement).
SECTION 13. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.01 of the Credit Agreement. All
communications and notices hereunder to any Guarantor shall be given to made to
it at One Crown Way, Philadelphia, Pennsylvania 19154.
SECTION 15. Survival of Agreement; Severability. (a) All covenants,
agreements, representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the U.K. Administrative Agent and the other Euro
Secured Parties and shall survive the making by the Lenders of the Loans
regardless of any investigation made by the Euro Secured Parties or on their
behalf, and shall continue in full force and effect as long as the principal of
or any
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accrued interest on any Loan or any other fee or amount payable under this
Agreement or any other Loan Document is outstanding and unpaid.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 16. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 11), and
shall become effective as provided in Section 11. Delivery of an executed
signature page to this Agreement by telecopy shall be as effective as delivery
of a manually executed counterpart of this Agreement. It is understood and
agreed among the parties that this Agreement shall create separate guarantees in
favor of each of the Revolving Euro Lenders, and that any determination by any
court with jurisdiction that the guarantee in favor of either group of Lenders
is invalid for any reason shall not in and of itself invalidate the guarantee
with respect to any other beneficiary hereunder.
SECTION 17. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 18. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the U.K.
Administrative Agent or any other Euro Secured Party may otherwise have to bring
any action or proceeding relating to this Agreement or the other Loan Documents
against any Guarantor or its properties in the courts of any jurisdiction.
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(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 14. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 19. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 19.
SECTION 20. Additional Guarantors. Pursuant to Section 5.11 of the
Credit Agreement, each Non-U.S. Guarantee Subsidiary of the Euro Borrower that
was not in existence on the date of the Credit Agreement is required to enter
into this Agreement as a Guarantor upon becoming a Non-U.S. Guarantee
Subsidiary. Upon execution and delivery after the date hereof by the Collateral
Agent and such Non-U.S. Guarantee Subsidiary of an instrument in the form of
Annex 1, such Non-U.S. Guarantee Subsidiary shall become a Guarantor hereunder
with the same force and effect as if originally named as a Guarantor herein. The
execution and delivery of any instrument adding an additional Guarantor as a
party to this Agreement shall not require the consent of any other Guarantor
hereunder. The rights and obligations of each Guarantor hereunder shall remain
in full force and effect notwithstanding the addition of any new Guarantor as a
party to this Agreement.
SECTION 21. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Euro Secured Party is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other Indebtedness at any time owing by such Euro Secured
Party to or for the credit or the account of any
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Guarantor against any or all the obligations of such Guarantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Euro
Secured Party, irrespective of whether or not such Euro Secured Party shall have
made any demand under this Agreement or any other Loan Document and although
such obligations may be unmeasured. The rights of each Euro Secured Party under
this Section 21 are in addition to other rights and remedies (including other
rights of setoff) which such Euro Secured Party may have.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
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CORK & SEAL AMERICAS, INC.
By: /s/ Michael B. Burns
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Name: Michael B. Burns
Title: Vice President and Treasurer
Non-U.S. Guarantee Agreement
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CCK INVESTMENTS LLC
By: /s/ Alan W. Rutherford
--------------------------------------------
Name: Alan W. Rutherford
Title: President
Non-U.S. Guarantee Agreement
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CCK UK INVESTMENTS LLC
By: /s/ Alan W. Rutherford
--------------------------------------------
Name: Alan W. Rutherford
Title: President
Non-U.S. Guarantee Agreement
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CCK MEXICAN INVESTMENTS LLC
By: /s/ Alan W. Rutherford
--------------------------------------------
Name: Alan W. Rutherford
Title: President
Non-U.S. Guarantee Agreement
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CROWN CANADA INVESTMENTS LLC
By: /s/ Alan W. Rutherford
--------------------------------------------
Name: Alan W. Rutherford
Title: President
Non-U.S. Guarantee Agreement
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CCK DEUTSCHLAND INVESTMENTS LLC
By: /s/ Alan W. Rutherford
--------------------------------------------
Name: Alan W. Rutherford
Title: President
Non-U.S. Guarantee Agreement
CITIBANK INTERNATIONAL PLC,
as U.K. Administrative Agent,
By: /s/ Paul Gibbs
--------------------------------------------
Name: Paul Gibbs
Title: Vice President
ANNEX 1 TO THE
NON-U.S. GUARANTEE AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Non-U.S. Guarantee Agreement
(the "Non-U.S. Guarantee Agreement") dated as of February 26, 2003, among CROWN
CORK & SEAL AMERICAS, INC., a Pennsylvania corporation (the "U.S. Borrower"),
CCK INVESTMENTS LLC, a Delaware limited liability company, CCK UK INVESTMENTS
LLC, a Delaware limited liability company, CCK MEXICAN INVESTMENTS LLC, a
Delaware limited liability company, CROWN CANADA INVESTMENTS LLC, a Delaware
limited liability company, and CCK DEUTSCHLAND INVESTMENTS LLC (each such
limited liability company individually, a "Guarantor" and collectively with the
U.S. Borrower, the "Guarantors") and CITIBANK INTERNATIONAL plc, as
administrative agent (the "U.K. Administrative Agent") for the Euro Secured
Parties (as defined in the Credit Agreement referred to below).
A. Reference is made to the Credit Agreement dated as of February 26,
2003 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Credit Agreement"), among the U.S. Borrower, Crown European
Holdings S.A., a corporation organized under the laws of France (the "Euro
Borrower"), each of the subsidiary borrowers referred to therein (the
"Subsidiary Borrowers" and together with the U.S. Borrower and the Euro
Borrower, the "Borrowers"), CROWN CORK & SEAL COMPANY, INC. ("CCSC"), CROWN
HOLDINGS, INC. ("Crown Holdings") and CROWN INTERNATIONAL HOLDINGS, INC. ("Crown
International"), as Parent Guarantors, the financial institutions listed on
Schedule 2.01 thereto, as such Schedule may from time to time be supplemented or
amended (the "Lenders"); CITICORP NORTH AMERICA, INC. as administrative agent
(in such capacity, the "Administrative Agent") for the Term B Dollar Lenders and
Revolving Dollar Lenders, CITIBANK INTERNATIONAL plc, as administrative agent
(in such capacity, the "U.K. Administrative Agent") for the Term B Euro Lenders
and the Revolving Euro Lenders, DEUTSCHE BANK SECURITIES INC. ("DBSI"), as
syndication agent (in such capacity, the "Syndication Agent"), DBSI and SALOMON
SMITH BARNEY INC. as joint lead arrangers and joint bookrunners (in such
capacity, the "Joint Lead Arrangers"), and ABN AMRO BANK N.V., as documentation
agent (in such capacity, the "Documentation Agent").
B. Capitalized terms used without definition shall have the meanings
assigned to such terms in the Non-U.S. Guarantee Agreement and the Credit
Agreement.
C. The Guarantors have entered into the Non-U.S. Guarantee Agreement in
order to induce the Euro Lenders to make Euro Loans. Pursuant to Section 5.11 of
the Credit Agreement, each Non-U.S. Guarantee Subsidiary of the Euro Borrower
that was not in existence or not a Non-U.S. Guarantee Subsidiary on the date of
the Credit Agreement is required to enter into the Non-U.S. Guarantee Agreement
as a Guarantor upon becoming a
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Non-U.S. Guarantee Subsidiary. Section 20 of the Non-U.S. Guarantee Agreement
provides that additional Non-U.S. Guarantee Subsidiaries of the Euro Borrower
may become Guarantors under the Non-U.S. Guarantee Agreement by execution and
delivery of an instrument in the form of this Supplement. The undersigned
Subsidiary of the Euro Borrower (the "New Guarantor") is executing this
Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Non-U.S. Guarantee Agreement in order to induce the Euro
Lenders to make additional Euro Loans and as consideration for Euro Loans
previously made.
Accordingly, the U.K. Administrative Agent and the New Guarantor agree
as follows:
SECTION 1. In accordance with Section 20 of the Non-U.S. Guarantee
Agreement, the New Guarantor by its signature below becomes a Guarantor under
the Non-U.S. Guarantee Agreement with the same force and effect as if originally
named therein as a Guarantor and the New Guarantor hereby (a) agrees to all the
terms and provisions of the Non-U.S. Guarantee Agreement applicable to it as a
Guarantor thereunder and (b) represents and warrants that the representations
and warranties made by it as a Guarantor thereunder are true and correct on and
as of the date hereof. Each reference to a Guarantor in the Non-U.S. Guarantee
Agreement shall be deemed to include the New Guarantor. The Non-U.S. Guarantee
Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the U.K.
Administrative Agent and the other Euro Secured Parties that this Supplement has
been duly authorized, executed and delivered by it and constitutes its legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement may be executed in counterparts, each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
U.K. Administrative Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Guarantor and the U.K.
Administrative Agent. Delivery of an executed signature page to this Supplement
by telecopy shall be as effective as delivery of a manually executed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Non-U.S.
Guarantee Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH, AND
GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Non-U.S. Guarantee Agreement shall not in any way be affected
or impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Non-U.S. Guarantee Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Euro
Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Collateral Agent
for its out-of-pocket expenses in connection with this Supplement, including the
fees, disbursements and other charges of counsel for the U.K. Administrative
Agent.
[Signature Page Follows]
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IN WITNESS WHEREOF, the New Guarantor and the U.K. Administrative Agent
have duly executed this Supplement to the Non-U.S. Guarantee Agreement as of the
day and year first above written.
[Name of New Guarantor],
By:
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Name:
Title:
Address:
CITIBANK INTERNATIONAL PLC,
as U.K. Administrative Agent,
By: /s/ Paul Gibbs
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Name: Paul Gibbs
Title: Vice President