===============================================================================
SHARED PLEDGE AGREEMENT
By
CROWN HOLDINGS, INC.,
CROWN CORK & SEAL COMPANY, INC.
CROWN CORK & SEAL AMERICAS, INC.
CROWN INTERNATIONAL HOLDINGS, INC.
and
THE DOMESTIC SUBSIDIARIES PARTY HERETO,
as Pledgors
and
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
----------------------
Dated as of February 26, 2003
===============================================================================
TABLE OF CONTENTS
Page
SECTION 1. Pledge.........................................................5
SECTION 2. Delivery of the Collateral.....................................7
SECTION 3. Representations, Warranties and Covenants......................7
SECTION 4. Registration in Nominee Name; Denominations....................8
SECTION 5. Voting Rights; Dividends and Interest, etc.....................8
SECTION 6. Remedies upon Default.........................................10
SECTION 7. Application of Proceeds of Sale...............................11
SECTION 8. Collateral Agent Appointed Attorney-in-Fact...................11
SECTION 9. Waivers; Amendment............................................12
SECTION 10. Securities Act, etc...........................................12
SECTION 11. Registration, etc.............................................13
SECTION 12. Security Interest Absolute....................................13
SECTION 13. Termination or Release........................................14
SECTION 14. Notices.......................................................14
SECTION 15. Further Assurances............................................14
SECTION 16. Binding Effect; Several Agreement; Assignment.................14
SECTION 17. Survival of Agreement; Severability...........................15
SECTION 18. GOVERNING LAW.................................................15
SECTION 19. Counterparts..................................................15
SECTION 20. Rules of Interpretation.......................................15
SECTION 21. Jurisdiction; Consent to Service of Process...................16
SECTION 22. WAIVER OF JURY TRIAL..........................................16
SECTION 23. Additional Pledgors...........................................16
SECTION 24. Execution of Financing Statements.............................16
SECTION 25. U.S. Intercreditor Agreement..................................17
SECTION 26. Certain Definitions...........................................17
SCHEDULES
Schedule I........Domestic Subsidiaries
Schedule II.......Pledged Stock and Pledged Debt Securities
-i-
SHARED PLEDGE AGREEMENT
SHARED PLEDGE AGREEMENT (as amended, amended and restated,
supplemented or otherwise modified from time to time, this "Agreement") dated as
of February 26, 2003, among CROWN HOLDINGS, INC., a Pennsylvania corporation
("Crown Holdings"), Crown Cork & Seal Company, Inc., a Pennsylvania corporation
("CCSC"), Crown Cork & Seal Americas, Inc., a Pennsylvania corporation ("Crown
Usco"), Crown International Holdings, Inc., a Delaware corporation ("Crown
International"), each other Domestic Subsidiary of Crown Holdings listed on
Schedule I hereto (collectively, together with each Domestic Subsidiary that
becomes a party hereto pursuant to Section 23 of this Agreement, the "Subsidiary
Guarantors" and, together with Crown Holdings, CCSC, Crown Usco and Crown
International, the "Pledgors"), and CITICORP NORTH AMERICA, INC. ("Citi/SSB"),
as collateral agent (in such capacity, and together with any successors in such
capacity, the "Collateral Agent") for the Secured Parties (as hereinafter
defined).
R E C I T A L S
A. Contemporaneously with the execution and delivery of this
Agreement, Crown Usco, as U.S. borrower (in such capacity, the "U.S. Borrower"),
Crown European Holdings SA, a societe anonyme organized under the laws of France
("Crown Euroco") as non-U.S. borrower (in such capacity, the "Non-U.S.
Borrower"), the subsidiary borrowers named therein, (the "Subsidiary Borrowers",
together with the U.S. Borrower and the Non-U.S. Borrower, the "Borrowers"),
Crown Holdings, CCSC, Crown International, the lenders from time to time party
thereto (the "Lenders"), Citi/SSB, as administrative agent (in such capacity,
together with its successors and assigns in such capacity, the "Administrative
Agent"), Citibank International plc, as U.K. administrative agent (in such
capacity, together with its successors and assigns in such capacity, the "U.K.
Administrative Agent"), Deutsche Bank Securities Inc. ("DBSI"), as syndication
agent (in such capacity, together with its successors and assigns in such
capacity, the "Syndication Agent"), DBSI and Salomon Smith Barney, Inc., as
joint lead arrangers and as joint bookrunners (in such capacities, together with
its successors and assigns in such capacities, the "Joint Lead Arrangers") and
ABN AMRO Incorporated, as joint bookrunner and ABN AMRO N.V., as documentation
agent (in such capacities, together with its successors and assigns in such
capacities, the "Documentation Agent") have entered into that certain credit
agreement dated as of the date hereof, (as amended, amended and restated,
supplemented 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 Second
Priority Notes Indenture (as hereinafter defined) and the Third Priority Notes
Indenture (as hereinafter defined) and any refinancing or replacement of the
Credit Agreement or one or more successor or replacement facilities whether or
not with a different group of agents or lenders and whether or not with
different obligors upon the Administrative Agent's acknowledgment of the
termination of the predecessor Credit Agreement, pursuant to which the Lenders
have agreed to make certain Loans (as defined in the Credit Agreement and
hereinafter referred to as the "Loans") and issue certain Letters of Credit (as
defined in the Credit Agreement) to or for the account of the Borrowers upon the
terms and subject to the conditions set forth in the Credit Agreement.
B. Contemporaneously with the execution and delivery of this
Agreement, Crown Holdings and each of the direct and indirect Domestic
Subsidiaries of Crown Holdings (other than the Insurance Subsidiary and the
Receivables Subsidiary) (together with each other Domestic Subsidiary of Crown
Holdings that from time to time after the date hereof guarantee the Obligations
(as hereinafter defined) of the Borrowers under the Credit Agreement and the
other Loan Documents, the "Guarantors") will guarantee or become co-obligors of
the Obligations of the Borrowers under the Credit Agreement and the other Loan
Documents (as amended, amended and restated, supplemented or otherwise modified
from time to time and together with any further guarantees by the Guarantors of
the Obligations of the Borrowers under the Credit Agreement, the "Credit
Guarantees").
C. It is contemplated that, from time to time, to the extent
permitted by the Credit Agreement, Crown Holdings or any of the direct or
indirect Domestic Subsidiaries of Crown Holdings may enter into one or more
Hedging Agreements (collectively, the "Bank Related Hedging Agreements") with
the Administrative Agent or any Lender or Affiliate thereof or any other Person
permitted under the Credit Agreement at the time such Bank Related Hedging
Agreement was entered into (individually, a "Bank Related Hedging Exchanger"
and, collectively, the "Bank Related Hedging Exchangers") and it is desired that
the obligations of Crown Holdings or its Domestic 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 a Lien on and security interest in
the Collateral pursuant to this Agreement; provided that for any Bank Related
Hedging Exchanger to receive the benefit of such Lien on and security interest
in the Collateral, it shall execute and deliver to the Collateral Agent an
acknowledgment to the U.S. Intercreditor Agreement (as hereinafter defined) in
the form annexed thereto (each such acknowledgment, a "Intercreditor
Acknowledgment") agreeing to be bound by the terms thereof.
D. It is contemplated that, to the extent permitted by the
Credit Agreement, Crown Holdings or any of the direct or indirect Domestic
Subsidiaries of Crown Holdings may from time to time enter into one or more Bank
Related Cash Management Agreements (as defined herein) with one or more Lenders
or their respective Affiliates or any other Person Permitted under the Credit
Agreement at the time such Bank Related Cash Management Agreement was entered
into (collectively, the "Bank Related Cash Management Exchangers") and it is
desired that the obligations of Crown Holdings or its Domestic Subsidiaries
under such Bank Related Cash Management Agreements, including the obligation to
make payments in the event of early termination thereunder (all such obligations
being the "Bank Related Cash Management Obligations"), be secured by a Lien on
and security interest in the Collateral pursuant to this Agreement and be
guaranteed by the Guarantors pursuant to the Credit Guarantees; provided that
for any Bank Related Cash Management Exchanger to receive the benefit of such
Lien on and security interest in the Collateral and the Credit Guarantees, it
shall execute and deliver to the Collateral Agent an Intercreditor
Acknowledgment agreeing to be bound by the terms thereof.
E. Contemporaneously with the execution and delivery of this
Agreement, (i) Crown Euroco, as issuer (in such capacity, the "Second Priority
Issuer") is issuing $1.085 billion aggregate principal amount of 9 1/2% Second
Priority Senior Secured Notes due 2011 (the "Second Lien Dollar Notes") and
(euro)285 million aggregate principal amount of 10 1/4% Second Priority Senior
Secured Notes due 2011 (the "Second Lien Euro Notes" and, together with the
-2-
Second Lien Dollar Notes, the "Second Lien Notes", which term shall include (a)
any exchange notes which are issued in a registered exchange offer for the
Second Lien Notes and (b) any additional Second Lien Notes issued by the Second
Priority Issuer after the date hereof under the Second Priority Indenture (as
hereinafter defined) to the extent that such issuance is permitted by the
Financing Documents, and any exchange notes issued in a registered exchange
offer for such additional Second Lien Notes), in each case, under an indenture
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "Second Priority Notes Indenture") among Crown Euroco and Wells
Fargo Bank Minnesota, National Association, as trustee for the holders of the
Second Lien Notes (in such capacity, together with its successors and assigns in
such capacity, the "Second Priority Notes Trustee") and (ii) each of the
Guarantors are guaranteeing or becoming co-obligors of the obligations of the
Second Priority Issuer under the Second Priority Notes Indenture (as amended,
amended and restated, supplemented or otherwise modified from time to time and
together with any future guarantees or co-issuances by the Guarantors of the
Obligations of Crown Euroco under the Indenture, the "Second Priority Notes
Guarantees").
F. Contemporaneously with the execution and delivery of this
Agreement, (i) Crown Euroco, as issuer (in such capacity, the "Third Priority
Issuer") is issuing $725 million aggregate principal amount of 10 7/8% Third
Priority Senior Secured Notes due 2013 (the "Third Lien Notes"), which term
shall include (a) any exchange notes which are issued in a registered exchange
offer for the Third Lien Notes and (b) any additional Third Lien Notes issued by
the Third Priority Issuer after the date hereof under the Third Priority
Indenture (as hereinafter defined) to the extent that such issuance is permitted
by the Financing Documents, and any exchange notes issued in a registered
exchange offer for such additional Third Lien Notes), in each case under an
indenture (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Third Priority Notes Indenture") among Crown Euroco and
Wells Fargo Bank Minnesota, National Association, as trustee for the holders of
the Third Lien Notes (in such capacity, together with its successors and assigns
in such capacity, the "Third Priority Notes Trustee") and (ii) each of the
Guarantors are guaranteeing or becoming co-obligors of the obligations of the
Third Party Issuer under the Third Priority Notes Indenture (as amended, amended
and restated, supplemented or otherwise modified from time to time and together
with any future guarantees or co-issuances by the Guarantors of the Obligations
of Crown Euroco under the Indenture, the "Third Priority Notes Guarantees").
G. It is contemplated that, from time to time, to the extent
permitted by the Credit Agreement and the Indentures, Crown Euroco may issue
certain Additional Second Priority Indebtedness (as hereinafter defined), which
may be guaranteed or co-issued by the Pledgors (any indenture, debenture, note,
guaranty, loan agreement, credit agreement or other document executed by Crown
Euroco or any other Pledgors in connection with the issuance of any such
Additional Second Priority Indebtedness is referred to herein as an "Additional
Second Priority Indebtedness Document" individually, and the "Additional Second
Priority Indebtedness Documents" collectively, and any trustee or like
representative of the holders of any such Additional Second Priority
Indebtedness is referred to herein as an "Additional Second Priority
Indebtedness Representative"), which Additional Second Priority Indebtedness
-3-
Documents may be secured by the Collateral; provided that for any holder of any
Additional Second Priority Indebtedness to receive the benefit of this
Agreement, it shall cause an Additional Second Priority Indebtedness
Representative to execute and deliver to the Collateral Agent an Intercreditor
Acknowledgment.
H. It is contemplated that, from time to time, to the extent
permitted by the Credit Agreement and the Indentures, Crown Euroco may issue
certain Additional Third Priority Indebtedness (as hereinafter defined), which
may be guaranteed or co-issued by the Pledgors (any indenture, debenture, note,
guaranty, loan agreement, credit agreement or other document executed by Crown
Euroco or any other Pledgors in connection with the issuance of any such
Additional Third Priority Indebtedness is referred to herein as an "Additional
Third Priority Indebtedness Document" individually, and the "Additional Third
Priority Indebtedness Documents" collectively, and any trustee or like
representative of the holders of any such Additional Third Priority Indebtedness
is referred to herein as an "Additional Third Priority Indebtedness
Representative"), which Additional Third Priority Indebtedness Documents may be
secured by the Collateral; provided that for any holder of any Additional Third
Priority Indebtedness to receive the benefit of this Agreement, it shall cause
an Additional Third Priority Indebtedness Representative to execute and deliver
to the Collateral Agent an Intercreditor Acknowledgment.
I. (a) The Administrative Agent and the U.K. Administrative
Agent (for their benefit and the benefit of the Lenders and the other Agents),
(b) the Collateral Agent (for its benefit and the benefit of the Secured
Parties), (c) the Bank Related Hedging Exchangers who have executed and
delivered an Intercreditor Acknowledgement, if any, (d) the Bank Related Cash
Management Exchangers who have executed and delivered an Intercreditor
Acknowledgement, if any, (e) the Second Priority Trustee (for its benefit and
for the benefit of the holders of the Second Lien Notes) and in the event any
obligations in respect of any Additional Second Priority Indebtedness are to be
secured by this Agreement, the Additional Second Priority Indebtedness
Representative in respect of such Additional Second Priority Indebtedness (for
its benefit and for the benefit of the holders of such Additional Second
Priority Indebtedness) (the foregoing, collectively, the "Second Priority
Secured Parties"), and (f) the Third Priority Trustee (for its benefit and for
the benefit of the holders of the Third Lien Notes) and in the event any
obligations in respect of any Additional Third Priority Indebtedness are to be
secured by this Agreement, the Additional Third Priority Indebtedness
Representative in respect of such Additional Third Priority Indebtedness (for
its benefit and for the benefit of the holders of such Additional Third Priority
Indebtedness) (the foregoing, collectively, the "Third Priority Secured
Parties"; together with the First Priority Secured Parties and the Second
Priority Secured Parties, collectively, the "Secured Parties"), have entered
into that certain U.S. Intercreditor and Collateral Agency Agreement dated as of
the date hereof (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "U.S. Intercreditor Agreement") with Crown
Holdings, CCSC, Crown International, Crown Usco, the Subsidiary Guarantors and
the other persons who may from time to time become party thereto in accordance
with the provisions thereof, which agreement provides for the respective
interests of the various Secured Parties relating to the Collateral.
-4-
J. It is a condition precedent to the effectiveness of the
Financing Documents that the Pledgors shall have executed and delivered this
Agreement in favor of the Collateral Agent for (i) its benefit and (ii) for the
benefit of the Secured Parties, to secure the payment and performance with
respect to any of the Financing Documents of 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, the U.S. Borrower and each of the Pledgors 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 the
U.S. Borrower and each of the Pledgors under the Bankruptcy Code or any state
insolvency law or similar statute (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 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 (all
such monetary and other obligations described in this Recital being collectively
called the "Obligations").
K. Each Pledgor will receive substantial benefits from the
execution, delivery and performance of the obligations under the Credit
Agreement and the Indentures and is, therefore, willing to enter into this
Agreement.
L. Each Pledgor is or, as to Collateral (as hereinafter
defined) acquired by such Pledgor after the date hereof will be, the legal
and/or beneficial owner of the Collateral pledged by it hereunder.
M. Contemporaneously with the execution and delivery of this
Agreement, the Pledgors and the Collateral Agent have entered into that certain
security agreement (as amended, amended and restated, supplemented, refinanced,
replaced or otherwise modified from time to time, the "Security Agreement").
N. Contemporaneously with the execution and delivery of this
Agreement, CCSC, Crown Usco, Crown International and the Collateral Agent have
entered into that certain bank pledge agreement (as amended, amended and
restated, supplemented, refinanced, replaced or otherwise modified from time to
time, the "Bank Pledge Agreement").
NOW THEREFORE, in consideration of the foregoing and other
benefits accruing Pledgor, the receipt and sufficiency of which are hereby
acknowledged, Pledgor hereby makes the following representations and warranties
to the Collateral Agent for the benefit of the Secured Parties (and each of
their respective successors and assigns), as follows:
-5-
SECTION 1. Pledge. (a) The following Liens on the Collateral are hereby
granted:
1. As security for the payment and performance, as the case may
be, in full of the First Priority Obligations, Pledgor
hereby transfers, grants, bargains, sells, conveys,
hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby
grants to the Collateral Agent, its successors and assigns,
for the benefit of the First Priority Secured Parties, a
first priority security interest in all of Pledgor's right,
title and interest in, to and under the Collateral.
2. As security for the payment and performance, as the case may
be, in full of the Second Priority Obligations, Pledgor
hereby transfers, grants, bargains, sells, conveys,
hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby
grants to the Collateral Agent, its successors and assigns,
for the benefit of the Second Priority Secured Parties, a
second priority security interest in all of Pledgor's right,
title and interest in, to and under the Collateral.
3. As security for the payment and performance, as the case may
be, in full of the Third Priority Obligations, Pledgor
hereby transfers, grants, bargains, sells, conveys,
hypothecates, pledges, sets over and delivers unto the
Collateral Agent, its successors and assigns, and hereby
grants to the Collateral Agent, its successors and assigns,
for the benefit of the Third Priority Secured Parties, a
third priority security interest in all of Pledgor's right,
title and interest in, to and under the Collateral.
(b) Upon delivery to the Collateral Agent, (a) any stock certificates,
notes required to be delivered pursuant to Section 2(b) or other securities now
or hereafter included in the Collateral (the "Pledged Securities") shall be
accompanied by stock powers duly executed in blank or other instruments of
transfer satisfactory to the Collateral Agent and by such other instruments and
documents as the Collateral Agent may reasonably request and (b) all other
property comprising part of the Collateral shall be accompanied by proper
instruments of assignment duly executed by the applicable Pledgor and such other
instruments or documents as the Collateral Agent may reasonably request. Each
subsequent delivery of Pledged Securities shall be accompanied by a schedule
describing the securities then being pledged hereunder, which schedule shall be
attached hereto as a supplement to Schedule II and made a part hereof. Each
schedule so delivered shall supplement any prior schedules so delivered.
TO HAVE AND TO HOLD the Collateral, together with all right,
title, interest, powers, privileges and preferences pertaining or incidental
thereto, unto the Collateral Agent, its successors and assigns, for the benefit
of the Secured Parties, forever; subject, however, to the terms, covenants and
conditions hereinafter set forth.
Notwithstanding any other provision hereof, if any Collateral
constitutes Restricted Securities, then such Collateral shall not secure any
Obligations constituting Exempted Indebtedness except to the extent that such
Obligations constitute Restricted Secured Indebtedness; provided that (i) if any
Public Debt is required to be secured by a Lien on such Collateral as a result
of the operation of any negative pledge covenant in any indenture, agreement or
instrument governing such Public Debt or (ii) the Public Debt ceases to be
-6-
outstanding or no longer restricts the ability of any Pledgor to pledge
Restricted Securities without also securing the Public Debt, then the
Obligations secured hereunder shall be equal to the maximum aggregate amount of
Obligations then outstanding. If any Collateral constitutes Restricted
Securities any payments or repayments of the Obligations shall not be deemed to
be applied against, or to reduce, the amount of Restricted Secured Indebtedness
that may be secured hereby.
SECTION 2. Delivery of the Collateral. (a) Each Pledgor agrees promptly
to deliver or cause to be delivered to the Collateral Agent any and all Pledged
Securities, and any and all certificates or other instruments or documents
representing the Collateral.
(b) Each Pledgor will cause any Indebtedness for borrowed money, in an
amount individually in excess of $50,000 or in the aggregate in excess of
$500,000, owed to such Pledgor by any Person to be evidenced by a duly executed
promissory note that is pledged and delivered to the Collateral Agent pursuant
to the terms hereof.
SECTION 3. Representations, Warranties and Covenants. Each Pledgor
hereby represents, warrants and covenants, as to itself and the Collateral
pledged by it hereunder, to and with the Collateral Agent that:
(a) the Pledged Stock represents that percentage as set forth on
Schedule II of the issued and outstanding shares of each
class of the capital stock or other Equity Interests of the
issuer with respect thereto;
(b) except for the security interest granted hereunder, such
Pledgor (i) is and will at all times continue to be the
direct owner, beneficially and of record, of the Pledged
Securities indicated on Schedule II, (ii) holds the same
free and clear of all Liens (iii) will make no assignment,
pledge, hypothecation or transfer of, or create or permit to
exist any security interest in or other Lien on, the
Collateral, other than pursuant hereto, or as otherwise
permitted pursuant to the Credit Agreement and (iv) subject
to Section 5, will cause any and all Collateral, whether for
value paid by the Pledgor or otherwise, to be forthwith
deposited with the Collateral Agent and pledged or assigned
hereunder;
(c) each Pledgor (i) has the power and authority to pledge the
Collateral in the manner hereby done or contemplated and
(ii) will defend its title or interest thereto or therein
against any and all Liens (other than the Lien created by
this Agreement), however arising, of all Persons whomsoever;
(d) no consent of any other Person (including stockholders or
creditors of any Pledgor) and no consent or approval of any
Governmental Authority or any securities exchange was or is
necessary to the validity of the pledge effected hereby;
(e) by virtue of the execution and delivery by the Pledgors of
this Agreement, when the Pledged Securities, certificates or
other documents representing or evidencing the Collateral
are delivered to the Collateral Agent in accordance with
-7-
this Agreement, the Collateral Agent will obtain a valid and
perfected first lien upon and security interest in such
Pledged Securities as security for the payment and
performance of the Obligations;
(f) the pledge effected hereby is effective to vest in the
Collateral Agent, on behalf of the Secured Parties, the
rights of the Collateral Agent in the Collateral as set
forth herein;
(g) all of the Pledged Stock has been duly authorized and
validly issued and is fully paid and nonassessable;
(h) all information set forth herein relating to the Pledged
Securities is accurate and complete in all material respects
as of the date hereof; and
(i) the pledge of the Pledged Securities pursuant to this
Agreement does not violate Regulation U or X of the Federal
Reserve Board or any successor thereto as of the date
hereof.
SECTION 4. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right (in its sole and
absolute discretion) to hold the Pledged Securities in its own name as pledgee,
the name of its nominee (as pledgee or as sub-agent) or the name of the
Pledgors, endorsed or assigned in blank or in favor of the Collateral Agent;
provided that the Collateral Agent shall not exercise such right without the
consent of the Borrowers in the event an Event of Default is not continuing.
Each Pledgor will promptly give to the Collateral Agent copies of any notices or
other communications received by it with respect to Pledged Securities
registered in the name of such Pledgor. The Collateral Agent shall at all times
have the right to exchange the certificates representing Pledged Securities for
certificates of smaller or larger denominations for any purpose consistent with
this Agreement.
SECTION 5. Voting Rights; Dividends and Interest, etc. (a) Unless and
until an Event of Default shall have occurred and be continuing:
(i) Each Pledgor shall be entitled to exercise any and all
voting and/or other consensual rights and powers inuring to
an owner of Pledged Securities or any part thereof for any
purpose consistent with the terms of this Agreement, the
Credit Agreement and the other Financing Documents;
provided, however, that such Pledgor will not be entitled to
exercise any such right if the result thereof could
materially and adversely affect the rights inuring to a
holder of the Pledged Securities or the rights and remedies
of any of the Secured Parties under this Agreement, the
Credit Agreement or any other Financing Document or the
ability of the Secured Parties to exercise the same;
(ii) The Collateral Agent shall execute and deliver to each
Pledgor, or cause to be executed and delivered to each
Pledgor, all such proxies, powers of attorney and other
instruments as such Pledgor may reasonably request for the
purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to
exercise pursuant to subparagraph (i) above and to receive
the cash dividends it is entitled to receive pursuant to
subparagraph (iii) below; and
-8-
(iii) Each Pledgor shall be entitled to receive and retain any
and all cash dividends, interest and principal paid on the
Pledged Securities to the extent and only to the extent that
such cash dividends, interest and principal are permitted
by, and otherwise paid in accordance with, the terms and
conditions of the Credit Agreement, the other Financing
Documents and applicable laws. All noncash dividends,
interest and principal, and all dividends, interest and
principal paid or payable in cash or otherwise in connection
with a partial or total liquidation or dissolution, return
of capital, capital surplus or paid-in surplus, and all
other distributions (other than distributions referred to in
the preceding sentence) made on or in respect of the Pledged
Securities, whether paid or payable in cash or otherwise,
whether resulting from a subdivision, combination or
reclassification of the outstanding capital stock of the
issuer of any Pledged Securities or received in exchange for
Pledged Securities or any part thereof, or in redemption
thereof, or as a result of any merger, consolidation,
acquisition or other exchange of assets to which such issuer
may be a party or otherwise, shall be and become part of the
Collateral, and, if received by any Pledgor, shall not be
commingled by such Pledgor with any of its other funds or
property but shall be held separate and apart therefrom,
shall be held in trust for the benefit of the Collateral
Agent and shall be forthwith delivered to the Collateral
Agent in the same form as so received (with any necessary
endorsement).
(b) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to dividends, interest or principal that such
Pledgor is authorized to receive pursuant to paragraph (a)(iii) above shall
cease, and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to receive
and retain such dividends, interest or principal. All dividends, interest or
principal received by the Pledgor contrary to the provisions of this Section 5
shall be held in trust for the benefit of the Collateral Agent, shall be
segregated from other property or funds of such Pledgor and shall be forthwith
delivered to the Collateral Agent upon demand in the same form as so received
(with any necessary endorsement). Any and all money and other property paid over
to or received by the Collateral Agent pursuant to the provisions of this
paragraph (b) shall be retained by the Collateral Agent in an account to be
established by the Collateral Agent upon receipt of such money or other property
and shall be applied in accordance with the provisions of Section 7. After all
Events of Default have been cured or waived, the Collateral Agent shall, within
five (5) Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor all cash dividends, interest or principal (without
interest), that such Pledgor would otherwise be permitted to retain pursuant to
the terms of paragraph (a)(iii) above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of
Default, all rights of any Pledgor to exercise the voting and consensual rights
and powers it is entitled to exercise pursuant to paragraph (a)(i) of this
Section 5, and the obligations of the Collateral Agent under paragraph (a)(ii)
of this Section 5, shall cease, and all such rights shall thereupon become
vested in the Collateral Agent, which shall have the sole and exclusive right
and authority to exercise such voting and consensual rights and powers; provided
that, unless otherwise required pursuant to the provisions of the Intercreditor
Agreement, the Collateral Agent shall have the right from time to time following
and during the continuance of an Event of Default to permit the Pledgors to
exercise such rights and such permission shall be deemed to have been granted
-9-
absent notice to the contrary to the Pledgors from the Collateral Agent. After
all Events of Default have been cured or waived, such Pledgor will have the
right to exercise the voting and consensual rights and powers that it would
otherwise be entitled to exercise pursuant to the terms of paragraph (a)(i)
above.
SECTION 6. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, subject to applicable regulatory and legal
requirements, the Collateral Agent may sell or otherwise dispose of the
Collateral, or any part thereof, at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery as the Collateral Agent shall deem appropriate. The Collateral Agent
shall be authorized at any such sale (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to Persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the property
sold absolutely free from any claim or right on the part of any Pledgor, and, to
the extent permitted by applicable law, the Pledgors hereby waives all rights of
redemption, stay, valuation and appraisal any Pledgor now has or may at any time
in the future have under any rule of law or statute now existing or hereafter
enacted.
The Collateral Agent shall give a Pledgor ten (10) days' prior
written notice (which each Pledgor agrees is reasonable notice within the
meaning of Section 9-611 of the Uniform Commercial Code as in effect in the
State of New York or its equivalent in other jurisdictions) of the Collateral
Agent's intention to make any sale of such Pledgor's Collateral. Such notice, in
the case of a public sale, shall state the time and place for such sale and, in
the case of a sale at a broker's board or on a securities exchange, shall state
the board or exchange at which such sale is to be made and the day on which the
Collateral, or portion thereof, will first be offered for sale at such board or
exchange. Any such public sale shall be held at such time or times within
ordinary business hours and at such place or places as the Collateral Agent may
fix and state in the notice of such sale. At any such sale, the Collateral, or
portion thereof, to be sold may be sold in one lot as an entirety or in separate
parcels, as the Collateral Agent may (in its sole and absolute discretion)
determine. The Collateral Agent shall not be obligated to make any sale of any
Collateral if it shall determine not to do so, regardless of the fact that
notice of sale of such Collateral shall have been given. The Collateral Agent
may, without notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. In case any sale of all or any
part of the Collateral is made on credit or for future delivery, the Collateral
so sold may be retained by the Collateral Agent until the sale price is paid in
full by the purchaser or purchasers thereof, but the Collateral Agent shall not
incur any liability in case any such purchaser or purchasers shall fail to take
up and pay for the Collateral so sold and, in case of any such failure, such
Collateral may be sold again upon like notice. At any public (or, to the extent
permitted by applicable law, private) sale made pursuant to this Section 6, any
Secured Party may bid for or purchase, free from any right of redemption, stay,
valuation or appraisal on the part of any Pledgor (all said rights being also
hereby waived and released), the Collateral or any part thereof offered for sale
and may make payment on account thereof by using any Obligation then due and
-10-
payable to such Secured Party from any Pledgor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Pledgor therefor. For purposes hereof, (a) a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof, (b) the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and (c) no Pledgor shall be entitled to the return of the Collateral or any
portion thereof subject thereto, notwithstanding the fact that after the
Collateral Agent shall have entered into such an agreement all Events of Default
shall have been remedied and the Obligations paid in full. As an alternative to
exercising the power of sale herein conferred upon it, the Collateral Agent may
proceed by a suit or suits at law or in equity to foreclose upon the Collateral
and to sell the Collateral orally portion thereof pursuant to a judgment or
decree of a court or courts having competent jurisdiction or pursuant to a
proceeding by a court-appointed receiver. Any sale pursuant to the provisions of
this Section 6 shall be deemed to conform to the commercially reasonable
standards as provided in Section 9-611 of the Uniform Commercial Code as in
effect in the State of New York or its equivalent in other jurisdictions.
SECTION 7. Application of Proceeds of Sale. The proceeds of any sale of
Collateral pursuant to Section 6, as well as any Collateral consisting of cash,
shall be applied by the Collateral Agent as provided in the U.S. Intercreditor
Agreement.
The Collateral Agent shall have absolute discretion as to the
time of application of any such proceeds, moneys or balances in accordance with
this Agreement. Upon any sale of the Collateral by the Collateral Agent
(including pursuant to a power of sale granted by statute or under a judicial
proceeding), the receipt of the purchase money by the Collateral Agent or of the
officer making the sale shall be a sufficient discharge to the purchaser or
purchasers of the Collateral so sold and such purchaser or purchasers shall not
be obligated to see to the application of any part of the purchase money paid
over to the Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 8. Collateral Agent Appointed Attorney-in-Fact. Each Pledgor
hereby appoints the Collateral Agent the attorney-in-fact of such Pledgor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest provided that the Collateral Agent shall only take
any action pursuant to such appointment upon the occurrence and during the
continuation of an Event of Default. Without limiting the generality of the
foregoing, the Collateral Agent shall have the right, upon the occurrence and
during the continuance of an Event of Default, with full power of substitution
either in the Collateral Agent's name or in the name of such Pledgor, to ask
for, demand, sue for, collect, receive and give acquittance for any and all
moneys due or to become due under and by virtue of any Collateral, to endorse
checks, drafts, orders and other instruments for the payment of money payable to
the Pledgor representing any interest or dividend or other distribution payable
in respect of the Collateral or any part thereof or on account thereof and to
give full discharge for the same, to settle, compromise, prosecute or defend any
action, claim or proceeding with respect thereto, and to sell, assign, endorse,
pledge, transfer and to make any agreement respecting, or otherwise deal with,
the same; provided, however, that nothing herein contained shall be construed as
-11-
requiring or obligating the Collateral Agent to make any commitment or to make
any inquiry as to the nature or sufficiency of any payment received by the
Collateral Agent, or to present or file any claim or notice, or to take any
action with respect to the Collateral or any part thereof or the moneys due or
to become due in respect therefor any property covered thereby. The Collateral
Agent and the other Secured Parties shall be accountable only for amounts
actually received as a result of the exercise of the powers granted to them
herein, and neither they nor their officers, directors, employees or agents
shall be responsible to any Pledgor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct.
SECTION 9. Waivers; Amendment. (a) No failure or delay of the
Collateral 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 Collateral Agent hereunder
and of the other Secured Parties under the other Financing Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provisions of this Agreement or any other
Financing Document or consent to any departure by any Pledgor 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 to or demand on any
Pledgor in any case shall entitle such Pledgor or any other Pledgor 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 Collateral Agent (as directed by the Requisite Obligees specified in the
U.S. Intercreditor Agreement) and the Pledgor with respect to which such waiver,
amendment or modification is to apply.
SECTION 10. Securities Act, etc. In view of the position of the
Pledgors in relation to the Pledged Securities, or because of other current or
future circumstances, a question may arise under the Securities Act of 1933, as
now or hereafter in effect, or any similar statute hereafter enacted analogous
in purpose or effect (such Act and any such similar statute as from time to time
in effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Securities permitted hereunder. Each Pledgor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Securities, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Securities could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Securities under applicable
Blue Sky or other state securities laws or similar laws analogous in purpose or
effect. Each Pledgor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Securities, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Securities for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Pledgor acknowledges and
agrees that in light of such restrictions and limitations, the Collateral Agent,
in its sole and absolute discretion, (a) may proceed to make such a sale whether
-12-
or not a registration statement for the purpose of registering such Pledged
Securities or part thereof shall have been filed under the Federal Securities
Laws and (b) may approach and negotiate with a single potential purchaser to
effect such sale. Each Pledgor acknowledges and agrees that any such sale might
result in prices and other terms less favorable to the seller than if such sale
were a public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Securities at a price that the Collateral Agent, in its
sole and absolute discretion, may in good faith deem reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a single purchaser were approached. The provisions of
this Section 10 will apply notwithstanding the existence of a public or private
market upon which the quotations or sales prices may exceed substantially the
price at which the Collateral Agent sells.
SECTION 11. Registration, etc. Each Pledgor agrees that, upon the
occurrence and during the continuance of an Event of Default hereunder, if for
any reason the Collateral Agent desires to sell any of the Pledged Securities of
such Pledgor at a public sale, it will, at any time and from time to time, upon
the written request of the Collateral Agent, use its best efforts to take or to
cause the issuer of such Pledged Securities to take such action and prepare,
distribute and/or file such documents, as are required or advisable in the
reasonable opinion of counsel for the Collateral Agent to permit the public sale
of such Pledged Securities. Each Pledgor further agrees to indemnify, defend and
hold harmless the Collateral Agent, each other Secured Party, any underwriter
and their respective officers, directors, affiliates and controlling Persons
from and against all loss, liability, expenses, costs of counsel (including,
without limitation, reasonable fees and expenses to the Collateral Agent of
legal counsel), and claims (including the costs of investigation) that they may
incur insofar as such loss, liability, expense or claim arises out of or is
based upon any alleged untrue statement of a material fact contained in any
prospectus (or any amendment or supplement thereto) or in any notification or
offering circular, or arises out of or is based upon any alleged omission to
state a material fact required to be stated therein or necessary to make the
statements in any thereof not misleading, except insofar as the same may have
been caused by any untrue statement or omission based upon information furnished
in writing to such Pledgor or the issuer of such Pledged Securities by the
Collateral Agent or any other Secured Party expressly for use therein. Such
Pledgor further agrees, upon such written request referred to above, to use its
best efforts to qualify, file or register, or cause the issuer of such Pledged
Securities to qualify, file or register, any of the Pledged Securities under the
Blue Sky or other securities laws of such states as may be requested by the
Collateral Agent and keep effective, or cause to be kept effective, all such
qualifications, filings or registrations. Such Pledgor will bear all costs and
expenses of carrying out its obligations under this Section 11. Such Pledgor
acknowledges that there is no adequate remedy at law for failure by it to comply
with the provisions of this Section 11 and that such failure would not be
adequately compensable in damages, and therefore agrees that its agreements
contained in this Section 11 may be specifically enforced.
SECTION 12. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the grant of a security interest in the Collateral and all
obligations of each Pledgor hereunder, shall be absolute and unconditional
irrespective of (a) any lack of validity or enforceability of the Credit
Agreement, the Intercreditor Agreement, any other Financing Document, any
-13-
agreement with respect to any of the Obligations or any other agreement or
instrument relating to any of the foregoing, (b) any change in the time, manner
or place of payment of, or in any other term of, all or any of the Obligations,
or any other amendment or waiver of or any consent to any departure from the
Credit Agreement, the Intercreditor Agreement, any other Financing Document or
any other agreement or instrument relating to any of the foregoing, (c) any
exchange, release or nonperfection of any other collateral, or any release or
amendment or waiver of or consent to or departure from any guaranty, for all or
any of the Obligations or (d) any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any Pledgor in respect of
the Obligations or in respect of this Agreement (other than the indefeasible
payment in full of all the Obligations).
SECTION 13. Termination or Release. (a) This Agreement and the security
interest in the Collateral shall terminate pursuant to and in accordance with
the terms of the U.S. Intercreditor Agreement; provided, however, this Agreement
and the security interest in the Collateral 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 Secured Party
or any Pledgor upon the bankruptcy or reorganization of the Borrowers, Pledgor
or otherwise.
(b) In connection with any release of Collateral, release of a Pledgor
party to this Agreement or terminations of this Agreement, in each case,
pursuant to and in accordance with the terms of the U.S. Intercreditor
Agreement, the Collateral Agent shall execute and deliver to the applicable
Pledgor, at such Pledgor's expense, all UCC termination statements and similar
documents that such Pledgor shall reasonably request to evidence such
termination or release. Any execution and delivery of such UCC termination
statements or other documents pursuant to this Section 13(b) shall be without
recourse to or warranty by the Collateral Agent.
SECTION 14. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.01 of the Credit Agreement and
Article 12 of each Indenture and the notice provisions of each other Financing
Document. All communications and notices hereunder to any Pledgor that is a U.S.
Subsidiary shall be given to it at the address for notices set forth on Schedule
I, with a copy to Pledgors.
SECTION 15. Further Assurances. Each Pledgor agrees to do such further
acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Collateral Agent may at any time
reasonably request in connection with the administration and enforcement of this
Agreement or with respect to the Collateral or any part thereof or in order
better to assure and confirm unto the Collateral Agent its rights and remedies
hereunder.
SECTION 16. Binding Effect; Several Agreement; Assignment. 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 by or on behalf of any Pledgor that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. This Agreement shall become effective as to any Pledgor when a
counterpart hereof executed on behalf of such Pledgor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon such
Pledgor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of Pledgor, the Collateral Agent and the other
Secured Parties, and their respective successors and assigns, except that no
Pledgor shall have the right to assign its rights hereunder or any interest
herein or in the Collateral (and any such attempted assignment shall be void),
-14-
except as expressly contemplated by this Agreement or the other Financing
Documents. This Agreement shall be construed as a separate agreement with
respect to each Pledgor and may be amended, modified, supplemented, waived or
released with respect to any Pledgor without the approval of any other Pledgor
and without affecting the obligations of any other Pledgor hereunder.
SECTION 17. Survival of Agreement; Severability. (a) covenants,
agreements, representations and warranties made by any Pledgor herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Financing Document shall be considered
to have been relied upon by the Collateral Agent and the other Secured Parties
and shall survive the making by the Lenders of the Loans, and the Lender's
issuance of and participations in Letters of Credit, the issuance of the Second
Lien Notes and the Third Lien Notes, regardless of any investigation made by the
Secured Parties or on their behalf, and shall continue in full force and effect
until this Agreement shall terminate.
(b) In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein 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. It is understood and agreed that this
Agreement shall create separate security interests in the Collateral securing
the Obligations, as provided in Section 1, and that any determination by any
court with jurisdiction that the security interest securing any Obligation or
class of Obligations is invalid for any reason shall not in and of itself
invalidate the security interest securing any other Obligations hereunder.
SECTION 18. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute a single contract, and shall become effective
as provided in Section 16. Delivery of an executed counterpart of a signature
page to this Agreement by facsimile transmission shall be as effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 20. Rules of Interpretation. The rules of interpretation
specified in Section 1.03 of the Credit Agreement shall be applicable to this
Agreement. Section headings used herein are for convenience of reference only,
are not part
-15-
of this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting this Agreement.
SECTION 21. Jurisdiction; Consent to Service of Process. (a) Each
Pledgor 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 Financing Documents, or for recognition
or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that, to the extent permitted by
applicable law, 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 referred to in paragraph (a) of this Section. 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 Collateral Agent or any other Secured Party may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Financing Documents against any Pledgor or its properties in the
courts of any jurisdiction.
(b) Each Pledgor 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 Financing Documents in
any New York State or Federal court referred to in paragraph (a) of this
Section. 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 22. 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 ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR ANY OF 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 BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 23. Additional Pledgors. Pursuant to Section 5.11 of the Credit
Agreement, each Domestic Subsidiary of Crown Holdings that was not in existence
or not a Domestic Subsidiary on the date of the Credit Agreement is required to
enter into this Agreement as a Pledgor upon becoming a Domestic Subsidiary. Upon
execution and delivery by the Collateral Agent and a Domestic Subsidiary of an
instrument in the form of Annex 1 hereto, such Domestic Subsidiary shall become
a Pledgor hereunder with the same force and effect as if originally named as a
Pledgor herein. The execution and delivery of such instrument shall not require
the consent of any Pledgor hereunder. The rights and obligations of each Pledgor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Pledgor as a party to this Agreement.
SECTION 24. Execution of Financing Statements. Pursuant to Section
9-509 of the Uniform Commercial Code as in effect in the State of New York or
its equivalent
-16-
in other jurisdictions, each Pledgor authorizes the Collateral Agent to file
financing statements with respect to the Collateral owned by it without the
signature of such Pledgor in such form and in such filing offices as the
Collateral Agent reasonably determines appropriate to perfect the security
interests of the Collateral Agent under this Agreement. A carbon, photographic
or other reproduction of this Agreement shall be sufficient as a financing
statement for filing in any jurisdiction.
SECTION 25. U.S. Intercreditor Agreement. Notwithstanding anything to
the contrary in this Agreement, the rights of the parties hereunder shall be
subject to the terms of the U.S. Intercreditor Agreement.
SECTION 26. Certain Definitions. Capitalized terms used and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
For the purposes of this Agreement, the following terms shall have the following
meaning:
"Additional Second Priority Indebtedness" means unsubordinated
indebtedness of Crown Euroco issued or incurred on or after the date hereof, to
the extent permitted to be incurred by the Credit Agreement and each other
Financing Document, which indebtedness is secured by a second priority Lien on
the Collateral.
"Additional Third Priority Indebtedness" means unsubordinated
indebtedness of Crown Euroco issued or incurred on or after the date hereof, to
the extent permitted to be incurred by the Credit Agreement and each other
Financing Document, which indebtedness is secured by a third priority Lien on
the Collateral.
"Collateral" shall mean, collectively, (a) all the shares of
capital stock and other Equity Interests owned by Crown Holdings in CCSC or any
other direct Subsidiary of Crown Holdings (including, without limitation, those
listed on Schedule II hereto) and any shares of capital stock and other Equity
Interests of CCSC or any other direct Subsidiary of Crown Holdings obtained in
the future by Crown Holdings and the certificates representing all such shares
or interests (collectively, the "Pledged Stock"); provided that the Pledged
Stock shall not include (i) directors' qualifying shares, to the extent that
applicable law requires that CCSC or any other direct Subsidiary of Crown
Holdings issue such qualifying shares; (b)(i) all debt securities issued to any
Pledgor (including, without limitation, those listed opposite the name of such
Pledgor on Schedule II hereto), (ii) all debt securities, in the future issued
to the Pledgors and (iii) all promissory notes and any other instruments
-17-
evidencing such debt securities (the "Pledged Debt Securities"); (c) all other
property that may be delivered to and held by the Collateral Agent pursuant to
the terms hereof; (d) subject to Section 5, all payments of principal or
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed, in respect of, in exchange for or
upon the conversion of the securities referred to in clauses (a) and (b) above;
(e) subject to Section 5, all rights and privileges of the Pledgor with respect
to the securities and other property referred to in clauses (a), (b), (c) and
(d) above; and (f) all proceeds of any and all of the foregoing.
"Event of Default" shall mean any "Event of Default" under the
Credit Agreement as such term is defined in the Credit Agreement until all
Obligations under the Credit Agreement, the other Loan Documents, the Bank
Related Hedging Agreements and the Bank Related Cash Management Agreements have
been indefeasibly repaid in full without any refinancing thereof through the
incurrence of Indebtedness having a Lien on any Collateral and all Letters of
Credit issued in connection with the Credit Agreement have terminated, and
thereafter shall mean any "Event of Default" under the Second Priority Notes
Indenture until all Obligations under the Second Priority Notes Indenture have
been indefeasibly repaid in full without any refinancing thereof through the
incurrence of Indebtedness having a Lien on any Collateral, and thereafter shall
mean any "Event of Default" the Third Priority Notes Indenture.
"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
Public Debt, as such indenture, agreement or interest is in effect on the date
hereof.
"Financing Documents" means, collectively, the Loan Documents,
the Second Priority Notes Documents, the Third Priority Notes Documents, the
Bank Related Hedging Agreements, the Bank Related Cash Management Agreements,
the Additional Second Priority Indebtedness Documents and the Additional Third
Priority Indebtedness Documents.
"First Priority Obligations" shall mean, collectively, the
following:
(i) the full and prompt payment when due (whether at the
stated maturity, by acceleration or otherwise) of all Obligations of
the Pledgor to the Lenders, whether now existing or hereafter incurred
under, arising out of, or in connection with, the Credit Agreement and
the other Loan Documents and the due performance and compliance by the
Pledgor with all of the terms, conditions and agreements contained in
the Credit Agreement and in such other Loan Documents;
(ii) to the extent any Bank Related Hedging Exchanger or Bank
Related Cash Management Exchanger has executed and delivered to the
Collateral Agent an Intercreditor Acknowledgment in accordance with the
provisions of the U.S. Intercreditor Agreement, the full and prompt
payment when due (whether at the stated maturity, by acceleration or
otherwise) of all Obligations owing by the Pledgor to the Bank Related
Hedging Exchanger party or the Bank Related Cash Management Exchanger
party, respectively, whether now existing or hereafter incurred,
arising out of or in connection with such Bank Related Hedging
-18-
Agreement or such Bank Related Cash Management Agreement respectively,
and the due performance and compliance by the Pledgor with all the
terms, conditions and agreements contained therein;
(iii) any and all sums advanced by the Collateral Agent
pursuant to this Agreement or the other Financing Documents in order to
preserve the Collateral or protect its lien and security interest in
the Collateral;
(iv) in the event of any proceeding for the collection or
enforcement of any indebtedness, obligations or liabilities of the
Pledgor, after an Event of Default shall have occurred and be
continuing, all reasonable expenses of re-taking, holding, preparing
for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, or of any exercise by the Collateral Agent of its
rights hereunder, together with reasonable attorneys' fees and
disbursements and court costs; and
(v) any and all renewals, extensions and modifications of any
of the obligations and liabilities referred to in clauses (i) through
(iv) above, whether outstanding on the date hereof or extended from
time hereafter, inclusive.
"First Priority Secured Parties" shall mean each of (a) the
Collateral Agent (for its benefit and for the benefit of the Lenders); (b) the
Administrative Agent, (c) the U.K Administrative Agent, (d) the Syndication
Agent, (e) the Joint Lead Arrangers, (f) the Documentation Agent, (g) the
Lenders, (h) in the event any Bank Related Hedging Obligations are to be secured
by this Agreement, the Bank Related Hedging Exchanger party to the relevant Bank
Related Hedging Agreement and (i) in the event any Bank Related Cash Management
Obligations are to be secured by this Agreement, the Bank Related Cash
Management Exchanger party to the relevant Cash Management Agreement.
"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 Public Debt to be required to be equally and
ratably secured, which "Restricted Secured Indebtedness" shall (i) first, secure
the Obligations in respect of the First Priority Obligations, (ii) second,
secure the Obligations in respect of the Second Priority Obligations and (iii)
third, secure the Obligations in respect of the Third Priority Obligations.
"Restricted Securities" shall mean any shares of capital stock
or evidences of indebtedness for borrowed money issued by any Restricted
Subsidiary and owned by CCSC or any Restricted Subsidiary.
"Restricted Subsidiary" means any subsidiary of CCSC that
would be considered a "Restricted Subsidiary" under (and as defined in) any
indenture, agreement or instrument governing or evidencing any Public Debt as
such indentures, agreements or instruments are in effect on the date hereof.
"Second Priority Notes Documents" means the Second Priority
Notes Indenture, the Second Lien Notes, the Second Priority Notes Guarantees and
any other document executed by the Second Priority Issuer, Crown Holdings or any
-19-
Guarantor in connection with the issuance of the Second Lien Notes, in each
case, as amended, amended and restated, supplemented, refinanced, replaced or
otherwise modified from time to time.
"Second Priority Obligations" shall mean the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all Obligations of any Pledgor to the holders of the Second Lien Notes or of
Indebtedness issued pursuant to any Additional Second Priority Indebtedness
Document, whether now existing or hereafter incurred under, arising out of, or
in connection with, the Second Priority Notes Documents or any Additional Second
Priority Indebtedness Document and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the Second
Priority Notes Indenture or any Additional Second Priority Indebtedness
Document.
"Third Priority Notes Documents" means the Third Priority
Notes Indenture, the Third Lien Notes, the Third Priority Notes Guarantees and
any other document executed by the Third Priority Issuer, Crown Holdings or any
Guarantor in connection with the issuance of the Third Lien Notes, in each case,
as amended, amended and restated, supplemented, refinanced, replaced or
otherwise modified from time to time.
"Third Priority Obligations" shall mean the full and prompt
payment when due (whether at the stated maturity, by acceleration or otherwise)
of all Obligations of any Pledgor to the holders of the Third Lien Notes or
Indebtedness issued pursuant to any Additional Third Priority Indebtedness
Document, whether now existing or hereafter incurred under, arising out of, or
in connection with, the Third Priority Notes Documents or any Additional Third
Priority Indebtedness Document and the due performance and compliance by such
Pledgor with all of the terms, conditions and agreements contained in the Third
Priority Notes Indenture or any Additional Third Priority Indebtedness Document.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
-20-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
CROWN HOLDINGS, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Senior Vice President
CROWN CORK & SEAL COMPANY, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Senior Vice President
CROWN INTERNATIONAL HOLDINGS, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK & SEAL AMERICAS, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK & SEAL COMPANY (PA), INC.
By: /s/ Alan W. Rutherford
Name: Alan W. Rutherford
Title: Vice President
CROWN FINANCIAL CORPORATION
By: /s/ Patrick D. Szmyt
Name: Patrick D. Szmyt
Title: Senior Vice President
FOREIGN MANUFACTURERS FINANCE CORPORATION
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
NATIONWIDE RECYCLERS' INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN BEVERAGE PACKAGING, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CONSULTANTS, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK & SEAL TECHNOLOGIES CORPORATION
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN FINANCIAL MANAGEMENT, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK & SEAL COMPANY (USA), INC.
By: /s/ Patrick D. Szmyt
Name: Patrick D. Szmyt
Title: Senior Vice President
CROWN OVERSEAS INVESTMENTS CORPORATION
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
HOCKING VALLEY LEASING COMPANY
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
RISDON-AMS (USA) INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
EYELET INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
EYELET SPECIALTY CO., INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
ZELLER PLASTIK, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK DE PUERTO RICO, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CENTRAL STATES CAN CO. OF PUERTO RICO, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN CORK & SEAL COMPANY (DE), LLC
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN NEW DELAWARE HOLDINGS, INC.
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CROWN HOLDINGS (PA), LLC
By: /s/ William T. Gallagher
Name: William T. Gallagher
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
By: /s/ Myles Kassin
Name: Myles Kassin
Title: Vice President
Schedule I to the
Shared Pledge Agreement
DOMESTIC SUBSIDIARIES
Name Address
Crown Cork & Seal Company, Inc. One Crown Way, Philadelphia, PA 19154
Crown Cork & Seal Company (PA), Inc. One Crown Way, Philadelphia, PA 19154
Crown Financial Corporation One Crown Way, Philadelphia, PA 19154
Foreign Manufacturers Finance Corporation 919 N. Market Street Suite 406, Wilmington, DE 19801
Nationwide Recyclers' Inc. One Crown Way, Philadelphia PA 19154
Crown Beverage Packaging, Inc. One Crown Way, Philadelphia, PA 19154
Crown Consultants, Inc. One Crown Way, Philadelphia, PA 19154
Crown Cork & Seal Technologies Corporation 11535 South Central Avenue, Alsip, Illinois, 60482
Crown Financial Management, Inc. One Crown Way, Philadelphia, PA 19154
Crown Cork & Seal Company (USA), Inc. One Crown Way, Philadelphia, PA 19154
Crown Overseas Investments Corporation 919 N. Market Street, Suite 406, Wilmington, DE 19801
Hocking Valley Leasing Company One Crown Way, Philadelphia, PA 19154
Risdon-AMS (USA) Inc. 1100 Buckingham Street., Watertown, CT 06795
Eyelet Inc. One Crown Way, Philadelphia, PA 19154
Eyelet Specialty Co., Inc. One Crown Way, Philadelphia, PA 19154
Zeller Plastik, Inc. 1515 Franklin Boulevard, Libertyville, IL 60048-4459
Crown Cork de Puerto Rico, Inc. Km 12 Hm6 65th Infantry Avenue, P. O. Box 817,
Carolina, Puerto Rico 00986
Central States Can Co. of Puerto Rico, Inc. One Crown Way, Philadelphia, PA 19154
Crown Cork & Seal Company (DE), LLC 919 N. Market Street., Suite 406, Wilmington, DE 19801
Crown New Delaware Holdings, Inc. One Crown Way, Philadelphia, PA 19154
Crown Holdings (PA), LLC One Crown Way, Philadelphia, PA 19154
Schedule II to the
Shared Pledge Agreement
Pledged Stock
Issuer Number of Certificate Registered Owner Number and Class of Percentage of
Shares/Type of Shares/Interest
Interest Pledged
------ --------------------- ---------------- -------------------- -------------
Crown Cork & Seal 1 Crown Holdings, Inc. 100 shares 100%
Company, Inc.
Pledged Debt Securities
Issuer Payee Principal Amount Date of Note Maturity Date
------ ----- ---------------- ------------ -------------
Each Pledgor Each Pledgor Variable February 26, 2003 N/A
Annex I to the
Shared Pledge Agreement
SUPPLEMENT NO. [ ] dated as of [ ], to the SHARED PLEDGE
AGREEMENT (the "Shared Pledge Agreement") dated as of February 26, 2003, among
CROWN HOLDINGS, INC., a Pennsylvania corporation ("Crown Holdings"), CROWN CORK
& SEAL COMPANY, INC., a Pennsylvania corporation ( "CCSC"), CROWN CORK & SEAL
AMERICAS, INC., a Delaware corporation ("Crown Usco"), CROWN INTERNATIONAL,
INC., a Delaware corporation ("Crown International"), each Domestic Subsidiary
listed on Schedule I thereto (collectively, together with each Domestic
Subsidiary that becomes a party thereto pursuant to Section 23 of the Shared
Pledge Agreement, the "Subsidiary Guarantors" and, together with Crown Holdings,
Crown Usco and CCSC, the "Pledgors") and CITICORP NORTH AMERICA, INC.
("Citi/SSB"), as collateral agent (in such capacity, and together with any
successors in such capacity, the "Collateral Agent") for the Secured Parties (as
defined in the Shared Pledge Agreement).
A. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
B. The Pledgors have entered into the Shared Pledge Agreement
in order to induce the Lenders to make Loans. Pursuant to Section 5.11 of the
Credit Agreement, each Domestic Subsidiary of Crown Holdings that was not in
existence or not a Domestic Subsidiary on the date of the Credit Agreement is
required to enter into the Shared Pledge Agreement as a Pledgor upon becoming a
Domestic Subsidiary. Section 23 of the Shared Pledge Agreement provides that
such Subsidiaries may become Pledgors under the Shared Pledge Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Pledgor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Pledgor
under the Shared Pledge Agreement.
Accordingly, the Collateral Agent and the New Pledgor agree
as follows:
SECTION 1. In accordance with Section 23 of the Shared Pledge
Agreement, the New Pledgor by its signature below becomes a Pledgor under the
Shared Pledge Agreement with the same force and effect as if originally named
therein as a Pledgor and the New Pledgor hereby agrees (a) to all the terms and
provisions of the Shared Pledge Agreement applicable to it as a Pledgor
thereunder and (b) represents and warrants that the representations and
warranties made by it as a Pledgor thereunder are true and correct on and as of
the date hereof. In furtherance of the foregoing, the New Pledgor, as security
for the payment and performance in full of the Obligations (as defined in the
Shared Pledge Agreement), does hereby create and grant to the Collateral Agent,
its successors and assigns, for the benefit of the Secured Parties, their
successors and assigns, a security interest in and lien on all of the New
Pledgor's right, title and interest in and to the Collateral (as defined in the
Shared Pledge Agreement) of the New Pledgor. Each reference to a "Pledgor" in
the Shared Pledge Agreement shall be deemed to include the New Pledgor. The
Shared Pledge Agreement is hereby incorporated herein by reference.
-20-
SECTION 2. The New Pledgor represents and warrants to the Collateral
Agent and the other 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 (and by
different parties hereto and different 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 Collateral
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Pledgor and the Collateral Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. The New Pledgor hereby represents and warrants that set
forth on Schedule I attached hereto is a true and correct schedule of all its
Pledged Securities (which Schedule I shall be deemed to modify and amend
Schedule II annexed to the Shared Pledge Agreement).
SECTION 5. Except as expressly supplemented hereby, the Shared Pledge
Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. 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 Shared Pledge Agreement 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 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 8. All communications and notices hereunder shall be in writing
and given as provided in Section 14 of the Shared Pledge Agreement. All
communications and notices hereunder to the New Pledgor shall be given to it at
the address set forth under its signature hereto.
SECTION 9. The New Pledgor agrees to reimburse the Collateral Agent for
its reasonable out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, other charges and disbursements of counsel for
the Collateral Agent.
-2-
IN WITNESS WHEREOF, the New Pledgor and the Collateral Agent
have duly executed this Supplement to the Shared Pledge Agreement as of the day
and year first above written.
[NEW PLEDGOR]
By:
----------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC., as
Collateral Agent,
By:
----------------------------------
Name:
Title:
Schedule I to
Supplement No. [ ]
to the Shared Pledge Agreement
Pledged Securities of the New Pledgor
Pledged Stock
Number of Certificate Registered Owner Number and Percentage
Issuer Class of Shares of Shares
- -------------------------------------------------------------------------------------------------------------------
Pledged Debt Securities
Principal Amount
Issuer Payee Date of Note Maturity Date
- -------------------------------------------------------------------------------------------------------------------