EXECUTION COPY
================================================================================
U.S. SECURITY 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 Grantors
and
CITICORP NORTH AMERICA, INC.,
as Collateral Agent
______________________
Dated as of February 26, 2003
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01. Uniform Commercial Code Defined Terms........................6
SECTION 1.02. Credit Agreement Defined Terms...............................6
SECTION 1.03. Definition of Certain Terms Used Herein......................7
SECTION 1.05. Resolution of Drafting Ambiguities..........................19
ARTICLE II
SECURITY INTEREST
SECTION 2.01. Security Interest...........................................19
SECTION 2.02. No Assumption of Liability..................................20
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Title and Authority.........................................20
SECTION 3.02. Filings.....................................................21
SECTION 3.03. Validity of Security Interest...............................21
SECTION 3.04. Limitations on and Absence of Other Liens...................22
SECTION 3.05. Other Actions...............................................22
SECTION 3.06. Chief Executive Office; Change of Name;
Jurisdiction of Organization ...............................25
SECTION 3.07. Location of Equipment.......................................26
SECTION 3.08. Condition and Maintenance of Equipment......................26
SECTION 3.09. Corporate Names; Prior Transactions.........................26
SECTION 3.10. No Claims...................................................26
ARTICLE IV
COVENANTS
SECTION 4.01. Change of Name; Location of Collateral;
Records; Place of Business .................................27
SECTION 4.02. Protection of Security......................................28
SECTION 4.03. Further Assurances..........................................28
SECTION 4.04. Inspection and Verification.................................28
SECTION 4.05. Taxes; Encumbrances.........................................29
SECTION 4.06. Assignment of Security Interest.............................29
SECTION 4.07. Continuing Obligations of the Grantors......................29
SECTION 4.09. Limitation on Modification of Accounts......................30
SECTION 4.10. Insurance...................................................30
SECTION 4.11. Legend......................................................30
SECTION 4.12. Certain Covenants and Provisions
Regarding Patent, Trademark and Copyright
Collateral .................................................31
-i-
ARTICLE V
REMEDIES
SECTION 5.01. Remedies upon Default.......................................32
SECTION 5.02. Application of Proceeds.....................................34
ARTICLE VI
COLLATERAL ACCOUNT
SECTION 6.01. Establishment Of Collateral Account.........................35
SECTION 6.02. Application of Proceeds.....................................36
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Notices.....................................................36
SECTION 7.03. Survival of Agreement.......................................37
SECTION 7.04. Binding Effect..............................................37
SECTION 7.05. Successors and Assigns......................................37
SECTION 7.06. U.S. Intercreditor Agreement; Accounts
Receivable Intercreditor Agreement .........................37
SECTION 7.07. GOVERNING LAW...............................................38
SECTION 7.08. Waivers; Amendment; Several Agreement.......................38
SECTION 7.09. WAIVER OF JURY TRIAL........................................38
SECTION 7.10. Severability................................................38
SECTION 7.11. Counterparts................................................39
SECTION 7.12. Headings....................................................39
SECTION 7.13. Jurisdiction; Consent to Service of Process.................39
SECTION 7.14. Termination; Release........................................40
SECTION 7.15. Additional Grantors.........................................40
SECTION 7.16. Concerning Collateral Agent.................................40
SECTION 7.17. Collateral Agent May Perform; Collateral
Agent Appointed Attorney-in Fact ...........................41
SECTION 7.18. Expenses....................................................41
SECTION 7.19. Indemnity...................................................42
-ii-
SCHEDULES
Schedule I Domestic Subsidiaries
Schedule II Commercial Tort Claims
Schedule III Prior Liens
Schedule IV Required Consents
Schedule V Violations and/or Proceedings
Schedule VI Excluded Letters of Credit
ANNEXES
Annex I Form of Joinder Agreement
Annex II Form of Perfection Certificate
-iii-
U.S. SECURITY AGREEMENT
-----------------------
U.S. SECURITY 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 7.15 of this Agreement, the
"Subsidiary Guarantors" and, together with Crown Holdings, CCSC, Crown Usco and
Crown International, the "Grantors"), and Citicorp North America, Inc.
("Citi/SSB"), as U.S collateral agent (in such capacity, and together with any
successors in such capacity, the "Collateral Agent") for the Secured Parties (as
defined herein).
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 joint bookrunners (in such capacity, together with its
successors and assigns in such capacity, the "Joint Lead Arrangers") and ABN
AMRO Incorporated, as joint book runner and ABN AMRO Bank 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.
-2-
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 U.S. 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
-3-
million aggregate principal amount of 10 1/4% Second Priority Senior Secured
Notes due 2011 (the "Second Lien Euro Notes" and, together with the 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 107/8% 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, which may be guaranteed or co-issued by
the Grantors (any indenture, debenture, note, guaranty, loan agreement, credit
agreement or other document executed by Crown Euroco or any other Grantors 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 Documents may be secured by the Collateral; provided that for any
holder of any Additional Second Priority Indebtedness to receive the benefit of
-4-
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, which may be guaranteed or co-issued by
the Grantors (any indenture, debenture, note, guaranty, loan agreement, credit
agreement or other document executed by Crown Euroco or any other Grantors 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 Acknowledgment, if any, and (d) the Bank Related Cash Management
Exchangers who have executed and delivered an Intercreditor Acknowledgment, 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.
J. It is a condition precedent to the effectiveness of the Financing
Documents that the Grantors 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
-5-
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 Grantors 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 Borrowers
and each of the Grantors 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 Grantor is or, as to Collateral (as defined herein) acquired by
such Grantor after the date hereof will be, the legal and/or beneficial owner of
the Collateral pledged by it hereunder.
L. Contemporaneously with the execution and delivery of this Agreement,
the Grantors have executed and delivered to the Collateral Agent a shared pledge
agreement (as amended, amended and restated, supplemented or otherwise modified
from time to time, the "Shared Pledge Agreement").
M. Contemporaneously with the execution and delivery of this Agreement,
the Grantors (other than Crown Holdings) have executed and delivered to the
Collateral Agent a bank pledge agreement (as amended, amended and restated,
supplemented or otherwise modified from time to time, the "Bank Pledge
Agreement," together with the Shared Pledge Agreement, the "Pledge Agreements").
N. This Agreement is given by each Grantor in favor of the Collateral
Agent for its benefit and the benefit of the other Secured Parties to secure the
payment and performance of all of the Obligations.
O. Crown Holdings, Crown Usco, CCSC, Crown International and each
Subsidiary Guarantor will receive substantial benefits from the execution,
delivery and performance of the obligations under the Credit Agreement, the
Credit Guarantees, the Bank Related Hedging Agreements, the Bank Related Cash
Management Agreements, the Second Priority Notes Indenture, the Second Lien
Notes, the Third Priority Notes Indenture, the Third Lien Notes, the Additional
Second Priority Indebtedness and the Additional Third Priority Indebtedness and
the and are, therefore, willing to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and other benefits
accruing each Grantor, the receipt and sufficiency of which are hereby
-6-
acknowledged, each Grantor 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:
ARTICLE I
Definitions
SECTION 1.01. Uniform Commercial Code Defined Terms. Unless otherwise
defined herein, terms used herein that are defined in the UCC shall have the
meanings assigned to them in the UCC, including the following which are
capitalized herein:
"Accounts"; "Bank"; "Certificates of Title"; "Chattel Paper";
"Commercial Tort Claim"; "Commodity Account"; "Commodity Contract"; "Commodity
Customer"; "Commodity Intermediary"; "Deposit Accounts"; "Documents";
"Electronic Chattel Paper"; "Entitlement Holder"; "Entitlement Order";
"Equipment"; "Financial Asset"; "Fixtures"; "Goods"; "Instruments" (as defined
in Article 9 rather than Article 3); "Inventory"; "Investment Property";
"Letter-of-Credit Rights"; "Letters of Credit"; "Securities"; "Securities
Account"; "Securities Intermediary"; "Security Entitlement"; "Supporting
Obligations"; and "Tangible Chattel Paper".
SECTION 1.02. Credit Agreement Defined Terms. Capitalized terms used
but not otherwise defined herein that are defined in the Credit Agreement shall
have the meanings given to them in the Credit Agreement, including the
following:
"Affiliate"; "Agents"; "Asset Sale"; "Bank Related Cash Management
Agreement"; "Business Day"; "Capital Lease Obligations";; "Dollar Equivalent";
"Effective Date"; "Equity Interests"; "Financial Officer"; "GAAP"; "Governmental
Authority"; "Guarantee Agreement"; "Hedging Agreement"; "Indebtedness";
"Insurance Subsidiary"; "LC Exposure"; "Loan Documents"; "Loans"; "Lien"; "Net
Proceeds"; "Non-Domestic Subsidiary"; "Note"; "Permitted Investments";
"Permitted Liens"; "Permitted Receivables Financing"; "Person"; "Public Debt";
"Receivables Subsidiary"; "Refinanced Public Debt"; "Revolving Dollar Loans";
"Requirements of Law"; "Subsidiary"; "Subsidiary Borrower"; "Term B Dollar
Loans"; "U.S. Security Documents"; and "Domestic Subsidiary".
Notwithstanding the foregoing, on and after the Obligations under the
Loan Documents, the Bank Related Hedging Obligations and the Bank Related Cash
Management Obligations have been indefeasibly paid in full without any
refinancing thereof through the incurrence of Indebtedness having a Lien on any
Collateral (as defined in the Credit Agreement) and the Credit Agreement, the
other Loan Documents, the Bank Related Hedging Agreements, the Bank Related Cash
Management Agreements and all Letters of Credit issued in connection with the
Credit Agreement have terminated the capitalized terms used herein but not
otherwise defined shall have meanings assigned to such terms in the Credit
Agreement as in effect on such date immediately prior to the termination
thereof.
-7-
SECTION 1.03. Definition of Certain Terms Used Herein. As used herein,
the following terms shall have the following meanings:
"Account Debtor" shall mean any Person who is or who may become
obligated to any Grantor under, with respect to or on account of an Account.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired; provided that "Accounts" shall not
include any Receivable Assets that have been sold or otherwise transferred in
connection with, or are subject to any Liens created pursuant to or in
accordance with, any Permitted Receivables Financing except to the extent
permitted by the Accounts Receivable Intercreditor Agreement.
"Accounts Receivable Intercreditor Agreement" shall mean that certain
Accounts Receivable Intercreditor Agreement dated as of February 26, 2002 among
Citibank, N.A., as program agent, CCSC, Crown Cork & Seal Receivables (DE)
Corporation, and the Collateral Agent, and any replacement intercreditor
agreement permitted by the Credit Agreement.
"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 Second Priority Indebtedness Document" and "Additional
Second Priority Indebtedness Documents" shall have the respective meanings
assigned to such terms in the Recitals of this Agreement.
"Additional Second Priority Indebtedness Representative" shall have the
meaning assigned to such term in the Recitals of this Agreement.
"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.
"Additional Third Priority Indebtedness Document" and "Additional Third
Priority Indebtedness Documents" shall have the respective meanings assigned to
such terms in the Recitals of this Agreement.
"Additional Third Priority Indebtedness Representative" shall have the
meaning assigned to such term in the Recitals of this Agreement.
-8-
"Administrative Agent" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Bank Pledge Agreement" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Bank Related Cash Management Exchangers" shall have the meaning
assigned to such term in the Recitals of this Agreement.
"Bank Related Cash Management Obligations" shall have the meaning
assigned to such term in the Recitals of this Agreement.
"Bank Related Debt" means, collectively, the Bank Related Cash
Management Obligations and the Bank Related Hedging Obligations.
"Bank Related Hedging Agreements" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Bank Related Hedging Exchangers" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Bank Related Hedging Obligations" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Bankruptcy Code" means Title 11, United States Code, or any similar
Federal or state or non-U.S. law or statute for the supervision, administration
or relief of debtors including, without limitation, bankruptcy or insolvency
laws.
"Books and Records" shall mean all instruments, files, records, ledger
sheets and documents evidencing, covering or relating to any of the Collateral.
"Borrowers" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"CCSC" shall mean Crown Cork & Seal Company, Inc.,
a Pennsylvania corporation.
"Charges" shall mean any and all property and other taxes, assessments
and special assessments, levies, fees and all governmental charges imposed upon
or assessed against, and all claims (including, without limitation, landlords',
carriers', mechanics', maritime, workmen's, repairmen's, laborers',
materialmen's, suppliers' and warehousemen's Liens and other claims arising by
operation of law) against, all or any portion of the Collateral.
"Collateral" shall mean all of the following, in each case, whether now
owned or hereafter acquired:
(a) Accounts Receivable;
-9-
(b) Books and Records;
(c) cash and Deposit Accounts;
(d) Chattel Paper;
(e) Collateral Account and Collateral Account Funds;
(f) Commercial Tort Claims described on Schedule II
annexed hereto;
(g) Documents;
(h) Equipment;
(i) Fixtures;
(j) General Intangibles;
(k) Goods;
(l) Instruments;
(m) Inventory;
(n) Investment Property;
(o) Letter-of-Credit Rights;
(p) Letters of Credit;
(q) Supporting Obligations;
(r) to the extent not covered by clauses (a) through (q) of
this definition, all other personal property, whether
tangible or intangible; and
(s) Proceeds of any and all of the foregoing;
provided that "Collateral" shall not include (i) any Receivable Assets that have
been sold or otherwise transferred in connection with, or are subject to any
Liens created pursuant to or in accordance with, any Permitted Receivables
Financing, and (ii) any "Collateral" (as defined in the Pledge Agreements).
"Collateral Account" shall mean that collateral account established
pursuant to Section 6.01 of this Agreement.
"Collateral Account Funds" shall mean, collectively, the following from
time to time on deposit in the Collateral Account: (a) all funds (including,
-10-
without limitation, all Trust Monies), investments (including, without
limitation, all Permitted Investments) and all certificates and instruments from
time to time representing or evidencing such investments; (b) all notes,
certificates of deposit, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the Collateral Agent for or on
behalf of any Grantor in substitution for, or in addition to, any or all of the
Collateral; and (c) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the items constituting Collateral.
"Collateral Agent" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Collateral Material Adverse Effect" shall mean, as of any date of
determination and whether individually or in the aggregate, (a) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
business or operations or prospects as presently conducted; (b) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
value or utility of the Collateral taken as a whole; or (c) any event,
circumstance, occurrence or condition which has caused or resulted in (or would
reasonably be expected to cause or result in) a material adverse effect on the
legality, priority or enforceability of the Lien created by this Agreement or
the rights and remedies of the Collateral Agent hereunder.
"Control" shall mean (i) in the case of each Deposit Account,
"control," as such term is defined in Section 9-104 of the UCC, (ii) in the case
of any Security Entitlement, "control," as such term is defined in Section 8-106
of the UCC, and (iii) in the case of any Commodity Contract, "control," as such
term is defined in Section 9-106 of the UCC.
"Control Agreement" shall mean an agreement in form and substance
acceptable to the Collateral Agent.
"Copyright License" shall mean each written agreement, now or hereafter
in effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or which such Grantor otherwise has the right to
license, or granting any right to such Grantor under any Copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following, in each case whether now
owned or hereafter acquired by any Grantor: (a) all copyright rights in any work
subject to the copyright laws of the United States or any other country, whether
as author, assignee, transferee or otherwise, and (b) all registrations and
applications for registration of any such copyright in the United States or any
other country, including registrations, recordings, supplemental registrations
and pending applications for registration in the United States Copyright Office
or any other country, including those listed on Schedule 15(b) of the Perfection
Certificate.
"Credit Agreement" shall have the meaning assigned to such term in the
Recitals of this Agreement.
-11-
"Credit Guarantees" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Crown Euroco" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Crown Holdings" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Crown International" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Default" shall mean any "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 (as defined in the Credit Agreement) and all Letters of
Credit issued in connection with the Credit Agreement have terminated, and
thereafter shall mean any "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 "Default" under the Third Priority Notes Indenture.
"Destruction" means any and all damage to, or loss or destruction of,
or loss of title to, all or any portion of the Collateral.
"Documentation Agent" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"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 (as defined in the
Credit Agreement) 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" under 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.
-12-
"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 First Priority Obligations of the
Grantors 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 Grantors 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
Grantors 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
Agreement or such Bank Related Cash Management Agreement respectively, and the
due performance and compliance by the Grantors 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 Grantors, 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 (including without limitation all such amounts referred to in
Section 7.18 hereof); 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
-13-
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.
"General Intangibles" shall mean collectively, all "general
intangibles," as such term is defined in the UCC, and in any event shall
include, without limitation, all choses in action and causes of action and all
other intangible personal property of any Grantor of every kind and nature now
owned or hereafter acquired by any Grantor, including all rights and interests
in partnerships, limited partnerships, limited liability companies and other
unincorporated entities, corporate or other business records, indemnification
claims, contract rights (including rights under leases, whether entered into as
lessor or lessee, Hedging Agreements and other agreements), Intellectual
Property, goodwill, registrations, franchises and tax refund claims.
"Grantors" shall have the meaning assigned to such term in the
Introduction of this Agreement.
"Indentures" shall mean the Second Priority Notes Indenture, the Third
Priority Notes Indenture and any indentures entered into by the Issuer in
connection with any Additional Second Priority Indebtedness and Additional Third
Priority Indebtedness.
"Intellectual Property" shall mean all intellectual and similar
property of any Grantor of every kind and nature now owned or hereafter acquired
by any Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Joint Lead Arrangers" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Lenders" shall have the meaning assigned to such term in the Recitals
of this Agreement.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense to which any Grantor is a party,
including, without limitation, those listed on Schedules 15(a) and 15(b) of the
Perfection Certificate (other than those license agreements in existence on the
date hereof and listed on Schedules 15(a) and 15(b) of the Perfection
Certificate and those license agreements entered into after the date hereof,
which by their terms prohibit assignment or a grant of a security interest by
such Grantor as licensee thereunder except to the extent such prohibitions are
rendered ineffective by the provisions of Sections 9-406, 9-407 and 9-408 of the
UCC).
"Obligations" shall have the meaning assigned to such term in the
Recitals of this Agreement.
-14-
"Officers' Certificate" shall mean, as applied to any corporation (or
limited liability company or partnership), a certificate executed on behalf of
such corporation (or limited liability company or partnership) by its Chairman
of the Board (if an officer) or its Chief Executive Officer or one of its Vice
Presidents (or an equivalent officer or, in the case of a limited liability
company, its managing member if no such equivalent officer has been so appointed
or, in the case of a partnership, its general partner) and by its Chief
Financial Officer, Vice President-Finance or its Treasurer (or an equivalent
officer or, in the case of a limited liability company, its managing member if
no such equivalent officer has been so appointed or, in the case of a
partnership, its general partner) or any Assistant Treasurer in their official
(and not individual) capacities.
"Operative Agreement" shall mean (i) in the case of any limited
liability company or partnership or other non-corporate entity, any membership
or partnership agreement or other organizational agreement or document thereof
and (ii) in the case of any corporation, any charter or certificate of
incorporation and by-laws thereof.
"Patent License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to make, use or sell any invention
on which a Patent, now or hereafter owned by any Grantor or which any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a Patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all letters patent of the United States or any
other country, all registrations and recordings thereof, and all applications
for letters patent of the United States or any other country, including
registrations, recordings and pending applications in the United States Patent
and Trademark Office or any other country, including those listed on Schedule
15(a) of the Perfection Certificate, and (b) all reissues, continuations,
divisions, continuations-in-part, renewals or extensions thereof, and the
inventions disclosed or claimed therein, including the right to make, use and/or
sell the inventions disclosed or claimed therein.
"Perfection Certificate" shall mean a certificate substantially in the
form of Annex 3 hereto, completed and supplemented with the schedules and
attachments contemplated thereby, and duly executed by each of the Grantors.
"Pledge Agreements" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Principal Property" shall mean any Fixture which would be considered a
part of a "Principal Property" 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.
"Prior Liens" shall mean, collectively, the Liens identified in
Schedule III annexed hereto relating to those items of Collateral identified in
such Schedule.
-15-
"Proceeds" shall mean, collectively, all "proceeds," as such term is
defined in the UCC, and in any event shall include, without limitation, any
consideration received from the sale, exchange, license, lease or other
disposition of ownership or control of any asset or property that constitutes
Collateral, any value received as a consequence of the possession of any
Collateral and any payment received from any insurer or other Person or entity
as a result of the destruction, loss, theft, damage or other involuntary
conversion of whatever nature of any asset or property that constitutes
Collateral, and shall include (a) all cash and negotiable instruments received
by or held on behalf of the Collateral Agent, (b) any claim of any Grantor
against any third party for (and the right to sue and recover for and the rights
to damages or profits due or accrued arising out of or in connection with) (i)
past, present or future infringement of any Patent now or hereafter owned by any
Grantor, or licensed under a Patent License, (ii) past, present or future
infringement or dilution of any Trademark now or hereafter owned by any Grantor
or licensed under a Trademark License or injury to the goodwill associated with
or symbolized by any Trademark now or hereafter owned by any Grantor, (iii)
past, present or future breach of any License and (iv) past, present or future
infringement of any Copyright now or hereafter owned by any Grantor or licensed
under a Copyright License and (c) any and all other amounts from time to time
paid or payable under or in connection with any of the Collateral.
"Receivable Assets" shall have the meaning assigned thereto in the
Receivables Contribution and Sale Agreement dated as of January 26, 2001 among
CCSC, Risdon-AMS (USA), Inc., Zeller Plastik, Inc. and Crown Cork & Seal Canada
Inc., as the sellers, Crown Cork & Seal Receivables (DE) Corporation, as the
buyer, and CCSC, as the buyer's initial servicer, as such agreement may be
amended, restated, supplemented or otherwise modified from time to time, or the
meaning for any term that corresponds to such term that is contained in any
agreement corresponding to such Receivables Contribution and Sale Agreement and
entered into pursuant to any Permitted Receivables Financing.
"Restricted Secured Indebtedness" shall mean 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.
"Second Lien Dollar Notes" shall have the meaning assigned to such
term in the Recitals of this Agreement.
"Second Lien Euro Notes" shall have the meaning assigned to such term
in the Recitals of this Agreement.
"Second Lien Notes" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"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
-16-
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 Notes Guarantees" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Second Priority Notes Indenture" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Second Priority Notes Trustee" shall have the meaning assigned to such
term in the Recitals of this Agreement.
"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 the Grantors 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 the
Grantors with all of the terms, conditions and agreements contained in the
Second Priority Notes Indenture or any Additional Second Priority Indebtedness
Document.
"Second Priority Secured Parties" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Secured Parties" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Security Interest" shall have the meaning assigned to such term in
Section 2.01 hereof.
"Shared Pledge Agreement" shall have the meaning assigned to such term
in the Recitals of the Agreement.
"Subsidiary Borrowers" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Subsidiary Guarantors" shall have the meaning assigned to such term in
the Recitals of this Agreement.
"Syndication Agent" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"Taking" means any taking of the Collateral or any portion thereof, in
or by condemnation or other eminent domain proceedings pursuant to any law,
general or special, or by reason of the temporary requisition or use of the
Collateral or any portion thereof, by any Governmental Authority.
-17-
"Third Lien Notes" shall have the meaning assigned to such term in the
Recitals of this Agreement.
"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 Notes Guarantees" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Third Priority Notes Indenture" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Third Priority Notes Trustee" shall have the meaning assigned to such
term in the Recitals of this Agreement.
"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 the Grantors 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 the
Grantors with all of the terms, conditions and agreements contained in the Third
Priority Notes Indenture or any Additional Third Priority Indebtedness Document.
"Third Priority Secured Parties" shall have the meaning assigned to
such term in the Recitals of this Agreement.
"Trademark License" shall mean any written agreement, now or hereafter
in effect, granting to any third party any right to use any Trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any Trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" shall mean all of the following now owned or hereafter
acquired by any Grantor: (a) all trademarks, service marks, trade names,
corporate names, company names, business names, fictitious business names, trade
styles, trade dress, logos, other source or business identifiers, designs and
general intangibles of like nature, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all registration and
recording applications filed in connection therewith, including registrations
and registration applications in the United States Patent and Trademark Office,
any State of the United States or any similar offices in any other country or
any political subdivision thereof, and all extensions or renewals thereof,
including those listed on Schedule 15(a) of the Perfection Certificate, (b) all
goodwill associated therewith or symbolized thereby and (c) all other assets,
rights and interests that uniquely reflect or embody such goodwill.
-18-
"Trust Monies" means all cash and Permitted Investments received by the
Collateral Agent:
(a) upon the release of Collateral from the Lien of this Agreement or any
Financing Document, including all Net Proceeds and all moneys received in
respect of the principal of all purchase money, governmental and other
obligations;
(b) pursuant to the U.S. Intercreditor Agreement or any Financing
Document;
(c) as proceeds of any sale or other disposition of all or any part of the
Collateral by or on behalf of the Collateral Agent or any collection, recovery,
receipt, appropriation or other realization of or from all or any part of the
Collateral pursuant to the U.S. Intercreditor Agreement or any of the Financing
Documents; or
(d) for application as provided in the relevant provisions of the U.S.
Intercreditor Agreement or any Financing Document or which disposition is not
otherwise specifically provided for in the U.S. Intercreditor Agreement or in
any Financing Document.
"UCC" shall mean the Uniform Commercial Code as in effect on the date
hereof in the State of New York; provided, however, that if by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of the Collateral Agent's and the Secured Parties' security interest in
any item or portion of the Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than the State of New York, the term "UCC"
shall mean the Uniform Commercial Code as in effect on the date hereof in such
other jurisdiction for purposes of the provisions hereof relating to such
attachment, perfection or priority and for purposes of definitions relating to
such provisions.
"U.K. Administrative Agent" shall have the meaning assigned to such
term in the Recitals of this Agreement.
"U.S. Intercreditor Agreement" shall have the meaning assigned to such
term in the Recitals of this Agreement.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
-19-
(6) references to sections of or rules under the Securities
Act of 1933, as amended, shall be deemed to include substitute,
replacement or successor sections or rules adopted by the Securities
and Exchange Commission from time to time; and
(7) references to "subject to the terms of the U.S.
Intercreditor Agreement" or words of similar meaning shall have effect
if the U.S. Intercreditor Agreement is then in effect.
SECTION 1.05. Resolution of Drafting Ambiguities. Each Grantor
acknowledges and agrees that it was represented by counsel in connection with
the execution and delivery hereof, that it and its counsel reviewed and
participated in the preparation and negotiation hereof and that any rule of
construction to the effect that ambiguities are to be resolved against the
drafting party (i.e., the Collateral Agent) shall not be employed in the
interpretation hereof.
ARTICLE II
Security Interest
SECTION 2.01. Security Interest. (a) The following Liens on the
Collateral are hereby granted:
(1) As security for the payment or performance, as the case may
be, in full of the First Priority Obligations, each Grantor
hereby bargains, sells, conveys, assigns, sets over,
mortgages, pledges, hypothecates and transfers to the
Collateral Agent and its successor and assigns, for the
ratable benefit of the First Priority Secured Parties, a first
priority security interest in, all of such Grantor's right,
title and interest in, to and under the Collateral.
(2) As security for the payment or performance, as the case may
be, in full of the Second Priority Obligations, each Grantor
hereby bargains, sells, conveys, sets over, mortgages,
pledges, hypothecates and transfers to the Collateral Agent
for the ratable benefit of the Second Priority Secured
Parties, a second priority security interest in all of such
Grantor's right, title and interest in, to and under the
Collateral; provided that the Liens granted pursuant to this
clause shall be subject and subordinate to the Liens granted
to secure the First Priority Obligations pursuant to the
immediately preceding clause and further subject to the
provisions of the U.S. Intercreditor Agreement.
(3) As security for the payment or performance, as the case may
be, in full of the Third Priority Obligations, each Grantor
hereby bargains, sells, conveys, sets over, mortgages,
pledges, hypothecates and transfers to the Collateral Agent
for the ratable benefit of the Third Priority Secured Parties,
a third priority security interest in all of such Grantor's
right, title and interest in, to and under the Collateral;
-20-
provided that the Liens granted pursuant to this clause shall
be subject and subordinate (i) first to the Liens granted
pursuant to Section 2.01(a)(1) to secure the First Priority
Obligations and (ii) second to the Liens granted pursuant to
Section 2.01(a)(2) to secure the Second Priority Obligations,
and, in each case, further subject to the provisions of the
U.S. Intercreditor Agreement.
Notwithstanding any other provision hereof, if any Principal Property
constitutes Collateral, then such Principal Property 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
outstanding or no longer restricts the ability of any Pledgor to pledge
Principal Property without also securing the Public Debt, then the Obligations
secured hereunder shall be equal to the maximum aggregate amount of Obligations
outstanding under the Financing Documents. If any Collateral constitutes
Principal Property 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.. The Liens granted hereunder to secure
the First Priority Obligations, the Second Priority Obligations and the Third
Priority Obligations are collectively referred to herein as the "Security
Interest".
(b) Without limiting the foregoing, the Collateral Agent is hereby
authorized to file one or more financing statements (including fixture filings),
continuation statements, filings with the United States Patent and Trademark
Office or United States Copyright Office (or any successor office or any similar
office in any other country) or other documents for the purpose of perfecting,
confirming, continuing, enforcing or protecting the Security Interest granted by
each Grantor, without the signature of any Grantor, and naming any Grantor or
the Grantors as debtors and the Collateral Agent as secured party.
SECTION 2.02. No Assumption of Liability. The Security Interest is
granted as security only and shall not subject the Collateral Agent or any other
Secured Party to, or in any way alter or modify, any obligation or liability of
any Grantor with respect to or arising out of the Collateral.
ARTICLE III
Representations and Warranties
The Grantors jointly and severally represent and warrant to the
Collateral Agent and the Secured Parties that:
SECTION 3.01. Title and Authority. Each Grantor has good and valid
rights in and title to the Collateral with respect to which it has purported to
grant a Security Interest hereunder and has full power and authority to grant to
the Collateral Agent the Security Interest in such Collateral pursuant hereto
and to execute, deliver and perform its obligations in accordance with the terms
of this Agreement, without the consent or approval of any other Person other
-21-
than any consent or approval which has been obtained.
SECTION 3.02. Filings. (a) All information set forth herein and in the
Perfection Certificate, including the Schedules annexed hereto and thereto, has
been duly prepared, completed and executed and the information set forth herein
and therein is correct and complete in all material respects. The Collateral
described on the Schedules annexed to the Perfection Certificate constitutes all
of the property of such type of Collateral owned or held by the Grantors. Fully
completed UCC financing statements (including fixture filings, as applicable) or
other appropriate filings, recordings or registrations containing a description
of the Collateral have been delivered to the Collateral Agent for filing in each
governmental, municipal or other office specified in Schedule 7 to the
Perfection Certificate, which are all the filings, recordings and registrations
that are necessary to publish notice of and protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Collateral Agent for the benefit of the Secured Parties in respect of all
Collateral in which the Security Interest may be perfected by filing, recording
or registration in the United States (or any political subdivision thereof) and
its territories and possessions, and, no further or subsequent filing, refiling,
recording, rerecording, registration or reregistration is necessary in any such
jurisdiction, except as provided under applicable law with respect to the filing
of continuation statements.
(b) Each Grantor represents and warrants that fully executed security
agreements in the form hereof and containing a description of all Collateral
consisting of Intellectual Property with respect to United States Patents and
United States registered Trademarks (and Patents and Trademarks for which United
States registration applications are pending) and with respect to United States
registered Copyrights have been delivered to the Collateral Agent for recording
by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 35 U.S.C. ss. 261, 15 U.S.C. ss. 1060 or 17 U.S.C. ss. 205
and the regulations thereunder, as applicable, to protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Collateral Agent for the benefit of the Secured Parties in respect of all
Collateral consisting of United States Patents, Trademarks and Copyrights in
which a security interest may be perfected by filing, recording or registration
in the United States (or any political subdivision thereof) and its territories
and possessions. Other than the filing of such security agreements with the
United States Patent and Trademark Office and the United States Copyright Office
(as applicable), and the filing of appropriate financing statements in the
relevant government offices pursuant to the UCC, no further or subsequent
filing, refiling, recording, prerecording, registration or preregistration is
necessary to establish a legal, valid and perfected security interest in favor
of the Collateral Agent for its benefit and the benefit of the other Secured
Parties in respect of all such Collateral (other than such actions as are
necessary to perfect the Security Interest with respect to any such Collateral
consisting of Patents, Trademarks and Copyrights (or registration or application
for registration thereof) acquired or developed after the date hereof).
SECTION 3.03. Validity of Security Interest. The Security Interest
constitutes (a) a legal and valid security interest in all the Collateral
securing the payment and performance of the Obligations, (b) subject to the
filings described in Section 3.02 above, a perfected security interest in all
Collateral in which a security interest may be perfected by filing, recording or
registering a financing statement or analogous document in the United States (or
-22-
any political subdivision thereof) and its territories and possessions pursuant
to the UCC or other applicable law in such jurisdictions, (c) a security
interest that shall be perfected in all Collateral in which a security interest
may be perfected upon the receipt and recording of this Agreement with the
United States Patent and Trademark Office and the United States Copyright
Office, as applicable, and (d) a perfected Security Interest in all Collateral
in which a security interest may be perfected by possession or control by the
Collateral Agent, in each case, to the extent required pursuant to the
provisions hereof. The Security Interest is and shall be prior to any other Lien
on any of the Collateral, other than Prior Liens and Permitted Liens of the type
described in clauses (v), (vi), (viii), (x), (xiv), (xv), (xvi), (xvii) and
(xix) of the definition thereof.
SECTION 3.04. Limitations on and Absence of Other Liens. The Collateral
is owned by the Grantors free and clear of any Lien, except for Permitted Liens.
The Grantors have not filed or consented to the filing of (a) any financing
statement or analogous document under the UCC or any other applicable laws
covering any Collateral which has not been released, (b) any assignment in which
any Grantor assigns any Collateral or any security agreement or similar
instrument covering any Collateral with the United States Patent and Trademark
Office or the United States Copyright Office or (c) any assignment in which any
Grantor assigns any Collateral or any security agreement or similar instrument
covering any Collateral with any foreign governmental, municipal or other
office, which financing statement or analogous document, assignment, security
agreement or similar instrument is still in effect, except, in each case, for
Permitted Liens.
SECTION 3.05. Other Actions. In order to further ensure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Collateral Agent's security interest in the Collateral, each Grantor agrees,
in each case at such Grantor's own expense, to take the following actions with
respect to the following Collateral:
(a) Instruments and Tangible Chattel Paper. As of the date hereof, each
Grantor hereby represents and warrants that (i) no amount individually or in the
aggregate in excess of $500,000 payable under or in connection with any of the
Collateral is evidenced by any Instrument or Tangible Chattel Paper other than
such Instruments and Tangible Chattel Paper listed in Schedule 13 of the
Perfection Certificate and (ii) each such Instrument and each such item of
Tangible Chattel Paper has been properly endorsed, assigned and delivered to the
Collateral Agent, accompanied by instruments of transfer or assignment duly
executed in blank. If any amount individually or in the aggregate in excess of
$500,000 payable under or in connection with any of the Collateral shall be
evidenced by any Instrument or Tangible Chattel Paper, the Grantor acquiring
such Instrument or Tangible Chattel Paper shall forthwith endorse, assign and
deliver the same to the Collateral Agent, accompanied by such instruments of
transfer or assignment duly executed in blank as the Collateral Agent may from
time to time specify; provided, however, that so long as no Event of Default
shall have occurred and be continuing, the Collateral Agent shall return such
Instrument or Tangible Chattel Paper to such Grantor from time to time, to the
extent necessary for collection in the ordinary course of such Grantor's
business.
(b) Deposit Accounts. Each Grantor hereby represents and warrants that (i)
it has neither opened nor maintains any Deposit Accounts other than the
Collateral Account established and maintained pursuant to this Agreement and the
accounts listed in Schedule 17 of
-23-
the Perfection Certificate and (ii) the Collateral Agent has a perfected first
priority security interest in the Collateral Account and each Deposit Account
listed in Schedule 17 of the Perfection Certificate by Control (other than such
Deposit Accounts (x) in which the average monthly balance on deposit in all such
Deposit Accounts is less than $1,000,000 in the aggregate, (y) in which the
granting of a security interest and entering into a Control Agreement with
respect to such Deposit Accounts is prohibited by Requirements of Law or (z) in
which the granting of a security interest and entering into a Control Agreement
with respect to such Deposit Account is prohibited by, and would result in a
default under, any Permitted Receivables Financing). No Grantor shall hereafter
establish and maintain any Deposit Account unless (1) the applicable Grantor
shall have given the Collateral Agent 10 days' prior written notice of its
intention to establish such new Deposit Account with a Bank and (2) such Bank
and such Grantor shall have duly executed and delivered to the Collateral Agent
a Control Agreement with respect to such Deposit Account. The Collateral Agent
agrees with each Grantor that the Collateral Agent shall not give any
instructions directing the disposition of funds from time to time credited to
any Deposit Account or withhold any withdrawal rights from such Grantor with
respect to funds from time to time credited to any Deposit Account unless an
Event of Default has occurred and is continuing or, after giving effect to any
withdrawal, would occur. No Grantor shall grant Control of any Deposit Account
to any Person other than the Collateral Agent.
(c) Investment Property. (i) Each Grantor hereby represents and warrants
that it (1) has neither opened nor maintains any Securities Accounts or
Commodity Accounts other than those listed in Schedule 17 of the Perfection
Certificate and the Collateral Agent has a perfected security interest in such
Securities Accounts and Commodity Accounts by Control (other than such
Securities Accounts or Commodity Accounts (x) in which the average monthly
balance on deposit in such account is less than $50,000 or (y) in which the
granting of a security interest and entering into a Control Agreement with
respect to such Securities Accounts or Commodity Accounts is prohibited by
Requirements of Law) and (2) it does not hold, own or have any interest in any
certificated securities or uncertificated securities other than those
constituting Pledged Stock under the U.S. Pledge Agreement and those maintained
in Securities Accounts or Commodity Accounts listed in Schedule 17 of the
Perfection Certificate.
(ii) If any Grantor shall at any time hold or acquire any certificated
securities constituting Investment Property, such Grantor shall promptly, but in
no event later than three (3) Business Days, endorse, assign and deliver the
same to the Collateral Agent, accompanied by such instruments of transfer or
assignment duly executed in blank, all in form and substance reasonably
satisfactory to the Collateral Agent. If any securities now or hereafter
acquired by any Grantor constituting Investment Property are uncertificated and
are issued to such Grantor or its nominee directly by the issuer thereof, such
Grantor shall promptly, but in no event later than three (3) Business Days,
notify the Collateral Agent thereof and pursuant to an agreement in form and
substance satisfactory to the Collateral Agent, either (a) cause the issuer to
agree to comply with instructions from the Collateral Agent as to such
securities, without further consent of any Grantor or such nominee, or (b)
arrange for the Collateral Agent to
-24-
become the registered owner of the securities. No Grantor shall hereafter
establish and maintain any Securities Account or Commodity Account with any
Securities Intermediary or Commodity Intermediary unless (1) the applicable
Grantor shall have given the Collateral Agent 30 days' prior written notice of
its intention to establish such new Securities Account or Commodity Account with
such Securities Intermediary or Commodity Intermediary, (2) such Securities
Intermediary or Commodity Intermediary shall be reasonably acceptable to the
Collateral Agent and (3) such Securities Intermediary or Commodity Intermediary,
as the case may be, and such Grantor shall have duly executed and delivered a
Control Agreement with respect to such Securities Account or Commodity Account,
as the case may be. Each Grantor shall accept any cash and Investment Property
in trust for the benefit of the Collateral Agent and within one (1) Business Day
of actual receipt thereof, deposit any cash or Investment Property and any new
securities, instruments, documents or other property by reason of ownership of
the Investment Property received by it into a Securities Account or Commodity
Account subject to a Control Agreement in favor of the Collateral Agent. The
Collateral Agent agrees with each Grantor that the Collateral Agent shall not
give any Entitlement Orders or instructions or directions to any issuer of
uncertificated securities, Securities Intermediary or Commodity Intermediary,
and shall not withhold its consent to the exercise of any withdrawal or dealing
rights by such Grantor, unless an Event of Default has occurred and is
continuing, or, after giving effect to any such investment and withdrawal
rights, would occur. No Grantor shall grant control over any Investment Property
to any Person other than the Collateral Agent. Notwithstanding anything to the
contrary in this clause (ii), in no event shall the foregoing include any
"Collateral" as defined in the Pledge Agreements.
(iii) As between the Collateral Agent and the Grantors, the Grantors shall
bear the investment risk with respect to the Investment Property, and the risk
of loss of, damage to or the destruction of the Investment Property, whether in
the possession of, or maintained as a security entitlement or deposit by, or
subject to the control of, the Collateral Agent, a Securities Intermediary, a
Commodity Intermediary, any Grantor or any other Person; provided, however, that
nothing contained in this Section 3.05(c) shall release or relieve any
Securities Intermediary or Commodity Intermediary of its duties and obligations
to the Grantors or any other Person under any Control Agreement or under
applicable law. Each Grantor shall promptly pay all Charges and fees of whatever
kind or nature with respect to the Investment Property pledged by it under this
Agreement. In the event any Grantor shall fail to make such payment contemplated
in the immediately preceding sentence, the Collateral Agent may do so for the
account of such Grantor and the Grantors shall promptly reimburse and indemnify
the Collateral Agent from all costs and expenses incurred by the Collateral
Agent under this Section 3.05(c).
(d) Electronic Chattel Paper and Transferable Records. If any amount
individually or in the aggregate in excess of $500,000 payable under or in
connection with any of the Collateral shall be evidenced by any Electronic
Chattel Paper or any "transferable record," as that term is defined in Section
201 of the Federal Electronic Signatures in Global and National Commerce Act, or
in Section 16 of the Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, the Grantor acquiring such Electronic Chattel Paper or
transferable record shall promptly notify the Collateral Agent thereof and shall
-25-
take such action as the Collateral Agent may reasonably request to vest in the
Collateral Agent control under UCC Section 9-105 of such Electronic Chattel
Paper or control under Section 201 of the Federal Electronic Signatures in
Global and National Commerce Act or, as the case may be, Section 16 of the
Uniform Electronic Transactions Act, as so in effect in such jurisdiction, of
such transferable record. The Collateral Agent agrees with such Grantor that the
Collateral Agent will arrange, pursuant to procedures satisfactory to the
Collateral Agent and so long as such procedures will not result in the
Collateral Agent's loss of control, for the Grantor to make alterations to the
Electronic Chattel Paper or transferable record permitted under UCC Section
9-105 or, as the case may be, Section 201 of the Federal Electronic Signatures
in Global and National Commerce Act of Section 16 of the Uniform Electronic
Transactions Act for a party in control to allow without loss of control, unless
an Event of Default has occurred and is continuing or would occur after taking
into account any action by such Grantor with respect to such Electronic Chattel
Paper or transferable record.
(e) Letter-of-Credit Rights. If any Grantor is at any time a beneficiary
under a Letter of Credit now or hereafter issued in favor of such Grantor in an
amount individually or in the aggregate in excess of $500,000 (other than those
Letters of Credit listed on Schedule VI hereto), such Grantor shall promptly
notify the Collateral Agent thereof and such Grantor shall, pursuant to an
agreement in form and substance satisfactory to the Collateral Agent, either (i)
arrange for the issuer and any confirmer of such Letter of Credit to consent to
an assignment to the Collateral Agent of the proceeds of any drawing under the
Letter of Credit or (ii) arrange for the Collateral Agent to become the
transferee beneficiary of such Letter of Credit, with the Collateral Agent
agreeing, in each case, that the proceeds of any drawing under the Letter of
Credit are to be applied as provided by the Borrower, or after an Event of
Default, as provided in the U.S. Intercreditor Agreement.
(f) Commercial Tort Claims. As of the date hereof each Grantor hereby
represents and warrants that it holds no Commercial Tort Claims other than those
listed in Schedule II hereto. If any Grantor shall at any time hold or acquire a
Commercial Tort Claim having a value individually or in the aggregate in excess
of $500,000, such Grantor shall immediately notify the Collateral Agent in
writing signed by such Grantor of the brief details thereof and grant to the
Collateral Agent in such writing a security interest therein and in the Proceeds
thereof, all upon the terms of this Agreement, with such writing to be in form
and substance satisfactory to the Collateral Agent.
SECTION 3.06. Chief Executive Office; Change of Name; Jurisdiction of
Organization. The exact legal name, type of organization, jurisdiction of
organization, Federal Taxpayer Identification Number, organizational
identification number and chief executive office of such Grantor is indicated
next to its name in Schedules 1(a) and 2(a) of the Perfection Certificate. Such
Grantor is a registered organization except to the extent disclosed in Schedule
1(a) of the Perfection Certificate.
SECTION 3.07. Location of Equipment. All Equipment and Inventory of
such Grantor is located at the chief executive office or such other location
listed in Schedule 2(a), 2(b), 2(c), 2(d) or 2(e) of the Perfection Certificate.
-26-
SECTION 3.08. Condition and Maintenance of Equipment. The Equipment of
such Grantor is in good repair, working order and condition, reasonable wear and
tear excepted. Each Grantor shall cause the Equipment to be maintained and
preserved in good repair, working order and condition, reasonable wear and tear
excepted, and shall as quickly as commercially practicable make or cause to be
made all repairs, replacements and other improvements which are necessary or
appropriate in the conduct of such Grantor's business, except where the failure
to make such repairs, replacements or improvements would not have a Collateral
Material Adverse Effect.
SECTION 3.09. Corporate Names; Prior Transactions. Such Grantor has
not, during the past five (5) years, been known by or used any other corporate
or fictitious name or been a party to any merger or consolidation, or acquired
all or substantially all of the assets of any Person, or acquired any of its
property or assets out of the ordinary course of business, except as set forth
in Schedules 1(b), 1(c) and 4 of the Perfection Certificate.
SECTION 3.10. No Claims. The use by such Grantor of the Collateral and
all such rights with respect to the foregoing do not infringe on the rights of
any Person other than such infringement which would not, individually or in the
aggregate, result in a Collateral Material Adverse Effect. No claim has been
made and remains outstanding that such Grantor's use of any Collateral does or
may violate the rights of any third Person that would, individually or in the
aggregate, have a Collateral Material Adverse Effect.
SECTION 3.11. No Conflicts, Consents, etc. Neither the execution and
delivery hereof by each Grantor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (i) violates any Operative
Agreement of such Grantor or any issuer of Pledged Stock, (ii) violates the
terms of any agreement, indenture, mortgage, deed of trust, equipment lease,
instrument or other document to which such Grantor is a party, or by which it is
bound or to which any of its properties or assets are subject, which violation
would, individually or in the aggregate, have a Collateral Material Adverse
Effect, (iii) conflicts with any Requirement of Law applicable to any such
Grantor or its property, which conflict would, individually or in the aggregate,
have a Collateral Material Adverse Effect, or (iv) results in or requires the
creation or imposition of any Lien (other than the Lien contemplated hereby or
by any of the other Financing Documents) upon or with respect to any of the
property now owned or hereafter acquired by such Grantor. Except as set forth in
Schedule IV annexed hereto, no consent, authorization, approval, license or
other action by, and no notice to or filing with, any Governmental Authority or
regulatory body or other Person (including, without limitation, equityholders or
creditors of such Grantor) is required (A) for the pledge by such Grantor of the
Collateral pledged by it pursuant to this Agreement or for the execution,
delivery or performance hereof by such Grantor other than such as have been
obtained or made and are in full force and effect and except for such filings as
may be necessary to perfect the Liens granted pursuant to this Agreement, (B)
for the exercise by the Collateral Agent of the voting or other rights provided
for in this Agreement or (C) for the exercise by the Collateral Agent of the
remedies in respect of the Collateral pursuant to this Agreement subject to the
provisions of Article V hereof. In the event that the Collateral Agent desires
to exercise any remedies, voting or consensual rights or attorney-in-fact powers
set forth in this Agreement and determines it necessary to obtain any approvals
or consents of any Governmental Authority or any other Person therefor, then,
upon the reasonable request of the Collateral Agent, such Grantor agrees to use
its commercially reasonable efforts to assist and aid the Collateral Agent to
-27-
obtain as soon as practicable any necessary approvals or consents for the
exercise of any such remedies, rights and powers.
ARTICLE IV
Covenants
SECTION 4.01. Change of Name; Location of Collateral; Records; Place of
Business. (a) Each Grantor agrees promptly to notify the Collateral Agent in
writing of any change (i) in its corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of its chief executive office, its principal
place of business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in its identity or corporate structure or (iv) in its Federal Taxpayer
Identification Number. Each Grantor agrees not to effect or permit any change
referred to in the preceding sentence unless all filings have been made under
the UCC or otherwise that are required in order for the Collateral Agent to
continue at all times following such change to have a valid, legal and perfected
first priority security interest in all the Collateral for the benefit of the
First Priority Secured Parties, a valid, legal and perfected second priority
security interest in all the Collateral for the benefit of the Second Priority
Secured Parties and a valid, legal and perfected third priority security
interest in all the Collateral for the benefit of the Third Priority Secured
Parties subject to no Liens other than Prior Liens and Permitted Liens of the
type described in clauses (v), (vi), (viii), (x), (xiv), (xv), (xvi), (xvii) and
(xix) of the definition thereof. Each Grantor agrees promptly to notify the
Collateral Agent if any material portion of the Collateral owned or held by such
Grantor is damaged or destroyed.
(b) Each Grantor agrees to maintain, at its own cost and expense, such
complete and accurate records with respect to the Collateral owned by it as is
consistent with its current practices and in accordance with such prudent and
standard practices used in industries that are the same as or similar to those
in which such Grantor is engaged, but in any event to include complete
accounting records indicating all payments and proceeds received with respect to
any part of the Collateral, in each case to the extent required by GAAP, and, at
such time or times as the Collateral Agent may reasonably request, promptly to
prepare and deliver to the Collateral Agent a duly certified schedule or
schedules in form and detail satisfactory to the Collateral Agent showing the
identity, amount and location of any and all Collateral.
SECTION 4.02. Protection of Security. Each Grantor shall, at its own
cost and expense, take any and all actions necessary to defend title to the
Collateral against all Persons and to defend the Security Interest of the
Collateral Agent in the Collateral and the priority thereof against any Lien
other than those Liens permitted hereunder and pursuant to the Credit Agreement.
SECTION 4.03. Further Assurances. Each Grantor agrees, at its own
expense, to execute, acknowledge, deliver and cause to be duly filed all such
further instruments and documents and take all such actions as the Collateral
-28-
Agent may from time to time reasonably request to better assure, preserve,
protect and perfect the Security Interest and the rights and remedies created
hereby, including the payment of any fees and taxes required in connection with
the execution and delivery of this Agreement, the granting of the Security
Interest and the filing of any financing statements (including fixture filings)
or other documents in connection herewith or therewith. If any amount payable
under or in connection with any of the Collateral shall be or become evidenced
by any promissory note or other instrument, such note or instrument shall be
promptly, but in no event later than three (3) Business Days, pledged and
delivered to the Collateral Agent, duly endorsed in a manner satisfactory to the
Collateral Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedules 15(a) and 15(b) of the
Perfection Certificate or adding additional schedules to the Perfection
Certificate to specifically identify any asset or item that may constitute
Copyrights, Licenses, Patents or Trademarks; provided, however, that any Grantor
shall have the right, exercisable within thirty (30) days after it has been
notified by the Collateral Agent of the specific identification of such
Collateral, to advise the Collateral Agent in writing of any inaccuracy of the
representations and warranties made by such Grantor hereunder with respect to
such Collateral. Each Grantor agrees that it will use its commercially
reasonable efforts to take such action as shall be necessary in order that all
representations and warranties hereunder shall be true and correct with respect
to such Collateral within thirty (30) days after the date it has been notified
by the Collateral Agent of the specific identification of such Collateral.
SECTION 4.04. Inspection and Verification. The Collateral Agent and
such Persons as the Collateral Agent may reasonably designate shall have the
right, at the Grantors' own cost and expense, to at all reasonable times and
upon reasonable notice under the circumstances inspect the Collateral, all
records related thereto (and to make extracts and copies from such records) and
the premises upon which any of the Collateral is located, to discuss the
Grantors' affairs with the officers of the Grantors and their independent
accountants and to verify under reasonable procedures, the validity, amount,
quality, quantity, value, condition and status of, or any other matter relating
to, the Collateral, including, in the case of Accounts or Collateral in the
possession of any third person, by contacting Account Debtors or the third
person possessing such Collateral for the purpose of making such a verification,
with substantially concurrent notice to the Grantors. Notwithstanding the
foregoing, the Collateral Agent's right to inspect any premises leased by any
Grantor shall only be required to the extent permitted by third party landlords
with rights to govern access; provided, however, that to the extent any third
party landlord does not permit the Collateral Agent to have access to any leased
premises, the applicable Grantor shall use commercially reasonable efforts to
cause such third party landlord to permit access to the Collateral Agent at such
leased premises. The Collateral Agent shall have the absolute right to share any
information it gains from such inspection or verification with any Secured
Party.
SECTION 4.05. Taxes; Encumbrances. At its option, the Collateral Agent
may discharge past due taxes, assessments, charges, fees, Liens, security
interests or other encumbrances at any time levied or placed on the Collateral
except to the extent same constitute Permitted Liens, and may pay for the
maintenance and preservation of the Collateral to the extent any Grantor fails
-29-
to do so as required by this Agreement, and each Grantor jointly and severally
agrees to reimburse the Collateral Agent on demand for any payment made or any
expense incurred by the Collateral Agent pursuant to the foregoing
authorization; provided, however, that nothing in this Section 4.05 shall be
interpreted as excusing any Grantor from the performance of, or imposing any
obligation on the Collateral Agent or any Secured Party to cure or perform, any
covenants or other promises of any Grantor with respect to taxes, assessments,
charges, fees, liens, security interests or other encumbrances and maintenance
as set forth herein or in the other Financing Documents.
SECTION 4.06. Assignment of Security Interest. If at any time any
Grantor shall take a security interest in any property of an Account Debtor or
any other Person to secure payment and performance of an Account, such Grantor
shall be deemed to have assigned such security interest to the Collateral Agent.
Each Grantor agrees, at its own expense, to execute, acknowledge, deliver and
cause to be duly filed all such further instruments and documents and take all
such actions as the Collateral Agent may from time to time reasonably request to
better assure, preserve, protect and perfect the security interest granted
pursuant to the foregoing sentence.
SECTION 4.07. Continuing Obligations of the Grantors. Each Grantor
shall remain liable to observe and perform all the conditions and obligations to
be observed and performed by it under each contract, agreement or instrument
relating to the Collateral, all in accordance with the terms and conditions
thereof, and each Grantor jointly and severally agrees to indemnify and hold
harmless the Collateral Agent and the Secured Parties from and against any and
all liability for such performance.
SECTION 4.08. Use and Disposition of Collateral. None of the Grantors
shall make or permit to be made an assignment for security, pledge or
hypothecation of the Collateral or shall grant any other Lien in respect of the
Collateral other than those Liens permitted hereunder and pursuant to the Credit
Agreement. None of the Grantors shall make or permit to be made any transfer of
the Collateral and each Grantor shall remain at all times in possession of the
Collateral owned by it, except that (a) Inventory may be sold in the ordinary
course of business and (b) unless and until the Collateral Agent shall notify
the Grantors that an Event of Default shall have occurred and be continuing and
that during the continuance thereof the Grantors shall not sell, convey, lease,
assign, transfer or otherwise dispose of any Collateral (which notice may be
given by telephone if promptly confirmed in writing), the Grantors may use and
dispose of the Collateral in any lawful manner not inconsistent with the
provisions of this Agreement, the U.S. Intercreditor Agreement, the Credit
Agreement or any other Financing Document.
SECTION 4.09. Limitation on Modification of Accounts. None of the
Grantors will, without the Collateral Agent's prior written consent, which
consent shall not be unreasonably withheld, grant any extension of the time of
payment of any of the Accounts Receivable, compromise, compound or settle the
same for less than the full amount thereof, release, wholly or partly, any
Person liable for the payment thereof or allow any credit or discount whatsoever
thereon, other than extensions, credits, discounts, compromises or settlements
granted or made in the ordinary course of business and consistent with its
current practices and in accordance with such prudent and standard practices
used in industries that are the same as or similar to those in which such
Grantor is engaged.
SECTION 4.10. Insurance. The Grantors, at their own expense, shall
maintain or cause to be maintained insurance covering physical loss or damage to
-30-
the Inventory and Equipment in accordance with Section 5.04 of the Credit
Agreement and Section 4.04 of each Indenture, and such insurance shall (a)
provide that no cancellation, material reduction in amount or material change in
coverage thereof shall be effective until at least 30 days after receipt by the
Collateral Agent of written notice thereof, (b) name the Collateral Agent as
insured party on liability policies and loss payee on property policies and (c)
be reasonably satisfactory in all other respects to the Collateral Agent. Each
Grantor irrevocably makes, constitutes and appoints the Collateral Agent (and
all officers, employees or agents designated by the Collateral Agent) as such
Grantor's true and lawful agent (and attorney-in-fact) for the purpose, during
the continuance of an Event of Default, of making, settling and adjusting claims
in respect of Collateral under policies of insurance, endorsing the name of such
Grantor on any check, draft, instrument or other item of payment for the
proceeds of such policies of insurance and for making all determinations and
decisions with respect thereto. In the event that any Grantor at any time or
times shall fail to obtain or maintain any of the policies of insurance required
hereby or to pay any premium in whole or part relating thereto, the Collateral
Agent may, without waiving or releasing any obligation or liability of the
Grantors hereunder or any Event of Default, in its sole discretion, obtain and
maintain such policies of insurance and pay such premium and take any other
actions with respect thereto as the Collateral Agent deems advisable. All sums
disbursed by the Collateral Agent in connection with this Section 4.10,
including reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be payable, upon demand, by the Grantors to the
Collateral Agent and shall be additional Obligations secured hereby ratably and
in the same priority as the original Obligations. So long as no Event of Default
has occurred and is continuing, all actions to be taken with respect to the
making, settling and adjusting of claims under insurance policies may be taken
by the Grantors without any requirement of participation or consent from the
Collateral Agent and all proceeds received from any insurance with respect to
any claim may be paid directly to the applicable Grantor to be applied in
accordance with the provisions of Section 6.02 hereof.
SECTION 4.11. Legend. Upon the request of the Collateral Agent, each
Grantor shall legend, in form and manner satisfactory to the Collateral Agent,
its Accounts Receivable and its books, records and documents evidencing or
pertaining thereto with an appropriate reference to the fact that such Accounts
Receivable have been assigned to the Collateral Agent for the benefit of the
Secured Parties and that the Collateral Agent has a security interest therein.
SECTION 4.12. Certain Covenants and Provisions Regarding Patent,
Trademark and Copyright Collateral. (a) Each Grantor agrees that it will not,
nor will it permit any of its licensees to, do any act, or omit to do any act,
whereby any Patent which is material to the conduct of such Grantor's business
may become invalidated or dedicated to the public, and agrees that it shall
continue to mark any products covered by a Patent with the relevant patent
number as necessary and sufficient to establish and preserve its maximum rights
under applicable patent laws.
(b) Each Grantor (either itself or through its licensees or its
sublicenses) will, for each Trademark material to the conduct of such Grantor's
business, use its commercially reasonable efforts to (i) maintain such Trademark
in full force free from any claim of abandonment or invalidity for non-use, (ii)
maintain the quality of products and services offered under such Trademark,
(iii) display such Trademark with notice of Federal or foreign registration to
the extent necessary and sufficient to establish and preserve its rights under
applicable law and (iv) not knowingly use or knowingly permit the use of such
Trademark in violation of any third party rights.
-31-
(c) Each Grantor (either itself or through licensees) will, for each work
covered by a material Copyright, publish, reproduce, display, adopt and
distribute such work with such appropriate copyright notice as necessary and
sufficient to establish and preserve its maximum rights under applicable
copyright laws.
(d) Each Grantor shall notify the Collateral Agent as soon as practicable
if it knows or has reason to know that any Patent, Trademark or Copyright
material to the conduct of its business may become abandoned, lost or dedicated
to the public, or of any adverse determination or development including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country regarding such Grantor's ownership of
any Patent, Trademark or Copyright, its right to register the same, or to keep
and maintain the same. Notwithstanding the foregoing, the Grantors shall not be
obligated to notify the Collateral Agent of any determinations or developments
regarding any Patent, Trademark or Copyright in any ex-parte proceeding with
respect to the prosecution of any application in the United States Patent and
Trademark Office, United States Copyright Office or similar office in any other
jurisdiction.
(e) At the end of each fiscal quarter, each Grantor shall promptly provide
the Collateral Agent with a document listing any new application or registration
for any Patent, Trademark or Copyright that was filed by or on behalf of such
Grantor with the United States Patent and Trademark Office, United States
Copyright Office or any office or agency in any political subdivision of the
United States or in any other country or any political subdivision thereof since
the last such document was provided to the Collateral Agent by such Grantor, and
shall execute and deliver any and all agreements, instruments, documents and
papers as the Collateral Agent may reasonably request to evidence the Collateral
Agent's security interest in such Patent, Trademark or Copyright, and each
Grantor hereby appoints the Collateral Agent as its attorney-in-fact to execute
and file such writings solely for the foregoing purposes, all acts of such
attorney being hereby ratified and confirmed; such power, being coupled with an
interest, is irrevocable.
(f) Each Grantor will take all necessary steps that are consistent with its
reasonable business judgment and the practice in any proceeding before the
United States Patent and Trademark Office, United States Copyright Office or any
office or agency in any political subdivision of the United States or in any
other country or any political subdivision thereof, to maintain and pursue each
material application relating to the Patents, Trademarks and/or Copyrights (and
to obtain the relevant grant or registration) and to maintain each issued Patent
and each registration of the Trademarks and Copyrights that is material to the
conduct of any Grantor's business, including timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with its reasonable business judgment, to
initiate opposition, interference and cancellation proceedings against third
parties.
(g) In the event that any Grantor has reason to believe that any
Collateral consisting of a Patent, Trademark or Copyright has been or is about
to be infringed, misappropriated or diluted by a third party, and such
infringement, misappropriation or dilution is expected to have a material
adverse effect on such Grantor's business, such Grantor promptly shall notify
-32-
the Collateral Agent and shall, if consistent with its reasonable business
judgment, promptly sue for infringement, misappropriation or dilution and to
recover any and all damages for such infringement, misappropriation or dilution,
and take such other actions as are appropriate and consistent with its
reasonable business judgment under the circumstances to protect such Collateral.
(h) To each Grantor's knowledge, on and as of the date hereof, (i)
except as set forth in Schedule V annexed hereto, there is no material violation
by others of any right of such Grantor with respect to any Copyright, Patent or
Trademark listed in Schedules 15(a) and 15(b) of the Perfection Certificate,
respectively, pledged by it under the name of such Grantor, (ii) such Grantor is
not infringing upon any Copyright, Patent or Trademark of any other Person other
than such infringement that would not (or could not reasonably be expected to)
result in a Collateral Material Adverse Effect with respect to Intellectual
Property and (iii) no proceedings are currently pending against such Grantor
alleging any such violation, except as may be set forth in Schedule V.
(i) Upon and during the continuance of an Event of Default, each
Grantor shall use its commercially reasonable efforts to obtain all requisite
consents or approvals by the licensor of each Copyright License, Patent License
or Trademark License to effect the assignment of all of such Grantor's right,
title and interest thereunder to the Collateral Agent or its designee.
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Collateral
consisting of Intellectual Property, on demand, to cause the Security Interest
to become an assignment, transfer and conveyance of any of or all such
Collateral by the applicable Grantors to the Collateral Agent, or to license or
sublicense, whether general, special or otherwise, and whether on an exclusive
or non-exclusive basis, any such Collateral throughout the world on such terms
and conditions and in such manner as the Collateral Agent shall determine (other
than in violation of any then existing licensing arrangements to the extent that
waivers cannot be obtained), and (b) with or without legal process and with or
without prior notice or demand for performance, to take possession of the
Collateral and without liability for trespass to enter any premises where the
Collateral may be located for the purpose of taking possession of or removing
the Collateral and, generally, to exercise any and all rights afforded to a
secured party under the UCC or other applicable law. Without limiting the
generality of the foregoing, each Grantor agrees that the Collateral Agent shall
have the right, subject to the mandatory requirements of applicable law, to sell
or otherwise dispose of all or any part of the Collateral, 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
-33-
property sold absolutely, free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Grantor 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 Grantor ten (10) days' prior written
notice (which each Grantor agrees is reasonable notice within the meaning of
Section 9-611 of the UCC) as of the Collateral Agent's intention to make any
sale of such Grantor'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 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
law, private) sale made pursuant to this Section, any Secured Party may bid for
or purchase, free (to the extent permitted by law) from any right of redemption,
stay, valuation or appraisal on the part of any Grantor (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 payable to such Secured Party from any Grantor 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 Grantor therefor. For purposes hereof, a written agreement to purchase
the Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor 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 this Agreement and to sell the
Collateral or any 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
shall be deemed to conform to the commercially reasonable standards as provided
in Section 9-611 of the UCC.
-34-
SECTION 5.02. Application of Proceeds. At such intervals as may be
agreed upon by CCSC and the Collateral Agent, or, if an Event of Default shall
have occurred and be continuing, at any time at the Collateral Agent's election,
the Collateral Agent may apply all or any part of Proceeds constituting
Collateral, whether or not held in any Collateral Account, in payment of the
Obligations in the order and in the amounts specified in the U.S. Intercreditor
Agreement.
SECTION 5.03. Grant of License to Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to the Grantors) to use, license or sub-license
any of the Collateral consisting of Intellectual Property now owned or hereafter
acquired by such Grantor, and wherever the same may be located, and including in
such license reasonable access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral Agent
shall be exercised, at the option of the Collateral Agent, upon the occurrence
and during the continuation of an Event of Default; provided that any license,
sub-license or other transaction entered into by the Collateral Agent in
accordance herewith shall be binding upon the Grantors notwithstanding any
subsequent cure of an Event of Default.
ARTICLE VI
COLLATERAL ACCOUNT
SECTION 6.01. Establishment Of Collateral Account. (a) The Collateral
Agent is hereby authorized to establish and maintain at its office at 390
Greenwich Street, New York, New York 10013, in the name of the Collateral Agent,
a restricted deposit account designated "Crown Cork & Seal Company, Inc.
Collateral Account". On the Effective Date, Crown Holdings shall cause the
Borrowers to deposit the proceeds of the Term B Dollar Loans and the Revolving
Dollar Loans not applied to refinance the Refinanced Public Debt or repay the
Existing Credit Agreement on the Effective Date (the "Initial Proceeds") into
the Collateral Account pursuant to Section 5.13 of the Credit Agreement. In
addition, each Grantor shall, to the extent contemplated by this Agreement, the
Credit Agreement, the Indentures, the U.S. Intercreditor Agreement or in any
other Financing Document, deposit into the Collateral Account from time to time
(A) the Net Proceeds of any of the Collateral (as defined in the Credit
Agreement for the purposes of this Article VI), including pursuant to any
disposition thereof (the "Collateral Proceeds"), (B) the Net Proceeds of any
Taking or Destruction with respect to Collateral to the extent required to be
deposited in the Collateral Account pursuant to Section 2.05(d)(iv) (the
"Destruction Proceeds"), (C) any cash in respect of any Collateral to which the
Collateral Agent is entitled pursuant to this Agreement, the Credit Agreement,
or any other Financing Document (the "Other Proceeds") and (D) any cash such
Grantor is required to pledge as additional collateral security pursuant to any
Financing Documents.
-35-
(b) The balance from time to time in the Collateral Account shall
constitute part of the Collateral (as defined herein) and shall not constitute
payment of the Obligations until applied as hereinafter provided.
(c) The Collateral Agent shall within three (3) Business Days of receiving
a request of the applicable Grantor for release of cash proceeds constituting
Initial Proceeds, release such cash proceeds, provided that (i) the Collateral
Agent shall release such Initial Proceeds on deposit in the Collateral Account
to or for the benefit of the representative, trustee, tender agent or individual
holder of the applicable Refinanced Public Debt being repaid or retired (whether
through voluntary repayment, purchase, repurchase, redemption or defeasance) as
directed by the Grantors upon receipt of an Officers' Certificate certifying
that no Default or Event of Default has occurred and is continuing or will
result from the release of such Initial Proceeds and instructing the Collateral
Agent to release such Initial Proceeds to or at the direction of such
representative, trustee, agent or individual holder and representing that such
Initial Proceeds shall be immediately applied to repay or retire such Refinanced
Public Debt, and (ii) the Collateral Agent shall not at such time have received
a notice from any Secured Party of the existence of any "Default" or "Event of
Default" (as defined in each Financing Document).
(d) So long as no Default or Event of Default has occurred and is
continuing or will result therefrom and to the extent Grantor is not required to
repay Obligations under any Financing Documents, the Collateral Agent shall
within three (3) Business Days of receiving a request of the applicable Grantor
for release of cash proceeds constituting Collateral Proceeds, Destruction
Proceeds or Other Proceeds, release such cash proceeds; provided that the
Collateral Agent shall be satisfied that the conditions relating the release
thereof set forth in Section 2.05 of the Credit Agreement and Section 4.11 of
each Indenture have been satisfied.
(e) At any time following the occurrence and during the continuance of an
Event of Default, the Collateral Agent may (and, if instructed by the Requisite
Obligees as specified in the U.S. Intercreditor Agreement, shall) in its (or
their) discretion apply or cause to be applied (subject to collection) the
balance from time to time outstanding under the Collateral Account to the
payment of the Obligations in the manner specified in the U.S. Intercreditor
Agreement.
(f) Amounts on deposit in the Collateral Account shall be invested from
time to time in Permitted Investments (as defined in each Financing Document) as
the applicable Grantor (or, after the occurrence and during the continuance of
an Event of Default, the Collateral Agent) shall determine, which Permitted
Investments shall be held in the name and be under the control of the Collateral
Agent (or any sub-agent); provided that, at any time after the occurrence and
during the continuance of an Event of Default, the Collateral Agent may (and, if
instructed by the Requisite Obligees as specified in the U.S. Intercreditor
Agreement, shall) in its (or their) discretion at any time and from time to time
elect to liquidate any such Permitted Investments and to apply or cause to be
applied the proceeds thereof to the payment of the Obligations in the manner
specified in the U.S. Intercreditor Agreement.
SECTION 6.02. Application of Proceeds. The proceeds received by the
Collateral Agent in respect of any sale of, collection from or other realization
-36-
upon all or any part of the Collateral pursuant to the exercise by the
Collateral Agent of its remedies shall be applied, together with any other sums
then held by the Collateral Agent pursuant to this Agreement, promptly by the
Collateral Agent as provided in the U.S. Intercreditor Agreement.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 10(a) of the U.S. Intercreditor Agreement. All
communications and notices hereunder to any Subsidiary Guarantor shall be given
to it at its address or telecopy number set forth on Schedule 1, with a copy to
CCSC.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest and all obligations of the Grantors
hereunder shall be absolute and unconditional irrespective of (a) any lack of
validity or enforceability of the Credit Agreement, the U.S. Intercreditor
Agreement, the Indentures, any other Financing Document, any 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 Indentures, any other Financing Document or any other agreement
or instrument, (c) any exchange, release or non-perfection of any Lien on other
collateral, or any release or amendment or waiver of or consent under or
departure from any guarantee, securing or guaranteeing all or any of the
Obligations, or (d) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, any Grantor in respect of the
Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by any Grantor 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 (A) the making by the Lenders of the Loans; (B) the Lenders'
issuance of and participations in Letters of Credit; (C) Borrowers' issuance of
Bank Related Debt; (D) Issuer's assumption of (i) the Second Lien Notes and (ii)
the Third Lien Notes; and (D) Issuer's assumption of any (i) Additional Second
Priority Indebtedness and (ii) any Additional Third Priority Indebtedness,
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.
SECTION 7.04. Binding Effect. This Agreement shall become effective as
to any Grantor when a counterpart hereof executed on behalf of such Grantor
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 Grantor and the Collateral Agent and their respective
successors and assigns, and shall inure to the benefit of such Grantor, the
Collateral Agent and the other Secured Parties and their respective successors
-37-
and assigns, except that no Grantor shall have the right to assign or transfer
its rights or obligations hereunder or any interest herein or in the Collateral
(and any such assignment or transfer shall be void) except as expressly
permitted by each of the other Financing Documents.
SECTION 7.05. Successors and Assigns. 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 Grantor or the Collateral Agent that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
SECTION 7.06. U.S. Intercreditor Agreement; Accounts Receivable
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. With respect to any Collateral which comprises
Accounts Receivable, the rights, remedies and entitlements of the Collateral
Agent hereunder shall be subject to, and may only be exercised or enforced in
accordance with, the terms of the Accounts Receivable Intercreditor Agreement.
SECTION 7.07. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.08. Waivers; Amendment; Several Agreement. (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 fight 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 Grantor 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 Grantor in any case shall entitle such Grantor or any other Grantor 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 an agreement or agreements in writing entered
into by the Collateral Agent (as directed by the Requisite Obligees as specified
in the U.S. Intercreditor Agreement) and the Grantor or Grantors with respect to
which such waiver, amendment or modification is to apply.
(c) This Agreement shall be construed as a separate agreement with respect
to each Grantor and may be amended, modified, supplemented, waived or released
with respect to any Grantor without the approval of any other Grantor and
without affecting the obligations of any other Grantor hereunder.
-38-
SECTION 7.09. 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 FINANCING 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 FINANCING DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.09.
SECTION 7.10. Severability. 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 among the parties that this Agreement
shall create separate security interests in the Collateral securing the First
Priority Obligations, Second Priority Obligations and Third Priority
Obligations, respectively, as provided in Section 2.01, 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 7.11. 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 7.04. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof.
SECTION 7.12. Headings. Article and Section headings used herein are
for the purpose of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
SECTION 7.13. Jurisdiction; Consent to Service of Process. (a) Each
Grantor 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
-39-
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 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 Grantor or its properties in the courts of any
jurisdiction.
(b) Each Grantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which 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 (c) 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 7.01. 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 7.14. Termination; Release. (a) This Agreement and the Security
Interest shall terminate pursuant to an in accordance with the terms of U.S.
Intercreditor Agreement; provided, however, this Agreement and the Security
Interest 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 Grantor upon the bankruptcy or
reorganization of the Borrower, any Grantor or otherwise.
(b) In connection with any release of Collateral, release of a Grantor
party to this Agreement or termination 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 Grantor, at such
Grantor's expense, all UCC termination statements and similar documents that
such Grantor 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 7.14 shall be without recourse to or warranty by the
Collateral Agent.
SECTION 7.15. Additional Grantors. To the extent any Domestic
Subsidiary shall be required to become a Grantor pursuant to any Financing
Document, upon execution and delivery by the Collateral Agent and a Domestic
Subsidiary of an instrument in the form of Annex I hereto, such Domestic
Subsidiary shall become a Grantor hereunder with the same force and effect as if
originally named as a Grantor herein. The execution and delivery of any such
instrument shall not require the consent of any Grantor hereunder. The rights
and obligations of each Grantor thereunder shall remain in full force and effect
notwithstanding the addition of any new Grantor as a party to this Agreement.
SECTION 7.16. Concerning Collateral Agent. (i) The Collateral Agent has
been appointed as Collateral Agent pursuant to the U.S. Intercreditor Agreement.
The actions of the Collateral Agent hereunder are subject to the provisions of
the U.S. Intercreditor Agreement on behalf of each Secured Party hereunder and
thereunder. The Collateral Agent shall have the right hereunder to make demands,
to give notices, to exercise or refrain from exercising any rights, and to take
-40-
or refrain from taking action (including, without limitation, the release or
substitution of the Collateral), in accordance with this Agreement and the U.S.
Intercreditor Agreement. The Collateral Agent may employ agents and
attorneys-in-fact in connection herewith. The Collateral Agent may resign and a
successor Collateral Agent may be appointed in the manner provided in the U.S.
Intercreditor Agreement. Upon the acceptance of any appointment as the
Collateral Agent by a successor Collateral Agent, that successor Collateral
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Collateral Agent under this Agreement, and
the retiring Collateral Agent shall thereupon be discharged from its duties and
obligations under this Agreement. After any retiring Collateral Agent's
resignation, the provisions hereof shall inure to its benefit as to any actions
taken or omitted to be taken by it under this Agreement while it was the
Collateral Agent.
(ii) The Collateral Agent shall be deemed to have exercised reasonable
care in the custody and preservation of the Collateral in its possession or in
possession of its agents or attorneys-in-fact if such Collateral is accorded
treatment substantially equivalent to that which the Collateral Agent, in its
individual capacity, accords its own property consisting of similar instruments
or interests, it being understood that neither the Collateral Agent nor any of
the Secured Parties shall have responsibility for (i) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relating to any Securities Collateral, whether or not the
Collateral Agent or any other Secured Party has or is deemed to have knowledge
of such matters, or (ii) taking any necessary steps to preserve rights against
any Person with respect to any Collateral.
(iii) The Collateral Agent shall be entitled to rely upon any written
notice, statement, certificate, order or other document or any telephone message
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper person, and, with respect to all matters pertaining
to this Agreement and its duties hereunder, upon advice of counsel selected by
it.
(iv) If any item of Collateral also constitutes collateral granted to
the Collateral Agent under any other deed of trust, mortgage, security
agreement, pledge or instrument of any type, in the event of any conflict
between the provisions hereof and the provisions of such other deed of trust,
mortgage, security agreement, pledge or instrument of any type in respect of
such collateral, the Collateral Agent, in its sole discretion, shall select
which provision or provisions shall control.
SECTION 7.17. Collateral Agent May Perform; Collateral Agent Appointed
Attorney-in Fact. If any Grantor shall fail to perform any covenants contained
in this Agreement (including, without limitation, such Grantor's covenants to
(i) pay the premiums in respect of all required insurance policies hereunder,
(ii) pay Charges, (iii) make repairs, (iv) discharge Liens or (v) pay or perform
any obligations of such Grantor under any Collateral) or if any warranty on the
part of any Grantor contained herein shall be breached, the Collateral Agent may
upon five (5) Business Days notice (but shall not be obligated to) do the same
or cause it to be done or remedy any such breach, and may expend funds for such
purpose; provided, however, that the Collateral Agent shall in no event be bound
to inquire into the validity of any tax, lien, imposition or other obligation
which such Grantor fails to pay or perform as and when required hereby and which
such Grantor does not contest in accordance in accordance with the provisions of
the Credit Agreement and the Indentures. Any and all amounts so expended by the
Collateral Agent shall be paid by the Grantors in accordance with the provisions
-41-
of Section 7.18 hereof. Neither the provisions of this Section 7.17 nor any
action taken by Collateral Agent pursuant to the provisions of this Section 7.17
shall prevent any such failure to observe any covenant contained in this
Agreement nor any breach of warranty form constituting an Event of Default. Each
Grantor hereby appoints the Collateral Agent its attorney-in-fact, with full
authority in the place and stead of such Grantor and in the name of such
Grantor, or otherwise, from time to time in the Collateral Agent's discretion to
take any action and to execute any instrument consistent with the terms of the
U.S. Intercreditor Agreement and the other Financing Documents which the
Collateral Agent may deem necessary or advisable to accomplish the purposes
hereof. The foregoing grant of authority is a power of attorney coupled with an
interest and such appointment shall be irrevocable for the term hereof. Each
Grantor hereby ratifies all that such attorney shall lawfully do or cause to be
done by virtue hereof.
SECTION 7.18. Expenses. Each Grantor will upon demand pay to the
Collateral Agent the amount of any and all costs and expenses, including the
reasonable fees and expenses of its counsel and the fees and expenses of any
experts and agents which the Collateral Agent may incur in connection with (i)
any action, suit or other proceeding affecting the Collateral or any part
thereof commenced, in which action, suit or proceeding the Collateral Agent is
made a party or participates or in which the right to use the Collateral or any
part thereof is threatened, or in which it becomes necessary in the judgment of
the Collateral Agent to defend or uphold the Lien hereof (including, without
limitation, any action, suit or proceeding to establish or uphold the compliance
of the Collateral with any requirements of any Governmental Authority or law),
(ii) the collection of the Obligations, (iii) the enforcement and administration
hereof, (iv) the custody or preservation of, or the sale of, collection from, or
other realization upon, any of the Collateral, (v) the exercise or enforcement
of any of the rights of the Collateral Agent or any Secured Party hereunder or
(vi) the failure by any Grantor to perform or observe any of the provisions
hereof. All amounts expended by the Collateral Agent and payable by any Grantor
under this Section 7.18 shall be due upon demand therefor (together with
interest thereon accruing at the highest rate then in effect under the
Indentures during the period from and including the date on which such funds
were so expended to the date of repayment) and shall be part of the Obligations.
Each Grantor's obligations under this Section 7.18 shall survive the termination
hereof and the discharge of such Grantor's other obligations under this
Agreement, the U.S. Intercreditor Agreement and the other Financing Documents.
SECTION 7.19. Indemnity.
(i) Indemnity. Grantor agrees to indemnify, pay and hold harmless the
Beneficiary and each of the other Secured Parties and the officers, directors,
employees, agents and Affiliates of the Collateral Agent and each of the other
Secured Parties (collectively, the "Indemnitees") from and against any and all
other liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, costs (including, without limitation, settlement costs), expenses
or disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding, commenced or threatened, whether or not such Indemnitee shall be
designated a party thereto) which may be imposed on, incurred by, or asserted
against that Indemnitee, in any manner relating to or arising out of this
Agreement, the Financing Documents or any other document evidencing the
Obligations (including, without limitation, any misrepresentation by any Grantor
-42-
in this Agreement, the U.S. Intercreditor Agreement, the Notes, other U.S.
Security Document or any other document evidencing the Obligations) (the
"Indemnified Liabilities"); provided, however, that no Grantor shall have any
obligation to an Indemnitee hereunder with respect to Indemnified Liabilities if
it has been determined by a final decision (after all appeals and the expiration
of time to appeal) of a court of competent jurisdiction that such Indemnified
Liabilities arose from the gross negligence or willful misconduct of that
Indemnitee. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, each Grantor shall contribute the maximum
portion which it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities incurred by the
Indemnitees or any of them.
(ii) Survival. The obligations of the Grantors contained in this Section
7.19 shall survive the termination hereof and the discharge of the Grantors'
other obligations under this Agreement, the U.S. Intercreditor Agreement and
under the other U.S. Security Documents.
(iii) Reimbursement. Any amounts paid by any Indemnitee as to which such
Indemnitee has the right to reimbursement shall constitute Obligations secured
by the Collateral.
[The remainder of this page has been intentionally left blank]
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/ Alan W. Rutherford
-----------------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President and
Chief Financial Officer
CROWN INTERNATIONAL HOLDINGS, INC.
By: /s/ Michael B. Burns
-------------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CROWN CORK & SEAL AMERICAS, INC.
By: /s/ Michael B. Burns
-------------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Alan W. Rutherford
-----------------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President and
Chief Financial Officer
SUBSIDIARIES
------------
Crown Consultants, Inc.
Crown Cork & Seal Technologies Corporation
Crown Beverage Packaging, Inc.
Crown Cork de Puerto Rico, Inc.
Foreign Manufacturers Finance Corporation
Nationwide Recyclers' Inc.
Risdon-AMS (USA), Inc.
Central States Can Co. of Puerto Rico, Inc.
Eyelet, Inc.
Eyelet Specialty Co., Inc.
Crown Financial Management, Inc.
Hocking Valley Leasing Company
Zeller Plastik, Inc.
Crown Overseas Investments Corporation
By: /s/ Michael B. Burns
-------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CROWN CORK & SEAL COMPANY (USA), INC.
By /s/ Patrick D. Szmyt
-------------------------------------
Name: Patrick D. Szmyt
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
CROWN CORK & SEAL COMPANY (PA), INC.
By: /s/ Alan W. Rutherford
-----------------------------------
Name: Alan W. Rutherford
Title: President
CROWN FINANCIAL CORPORATION
By /s/ Patrick D. Szmyt
-------------------------------------
Name: Patrick D. Szmyt
Title: Senior Vice President, Chief
Financial Officer and
Treasurer
CROWN NEW DELAWARE HOLDINGS, INC.
By: /s/ Michael B. Burns
-------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CROWN HOLDINGS (PA), LLC
(formerly Crown Holdings, LLC)
By: /s/ Michael B. Burns
-------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CROWN CORK & SEAL COMPANY (DE), LLC
(formerly Crown Cork & Seal Company, LLC)
By: /s/ Michael B. Burns
-------------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
CITICORP NORTH AMERICA, INC.,
as Administrative Agent,
By: /s/ Myles Kassin
-------------------------------------
Name: Myles Kassin
Title: Vice President
SCHEDULE I
U.S. Security Agreement
DOMESTIC SUBSIDIARIES
---------------------
Name
- ----
Crown Financial Management, Inc.
Nationwide Recyclers' Inc.
Crown Financial Corporation
Crown Cork & Seal Technologies Corporation
Foreign Manufacturers Finance Corporation
Crown Cork & Seal Company (PA), Inc.
Crown Cork & Seal Company (USA), Inc.
Crown Overseas Investments Corporation
Crown Consultants, Inc.
Hocking Valley Leasing Company
Risdon-AMS (USA), Inc.
Eyelet, Inc.
Eyelet Specialty Co., Inc.
Zeller Plastik, Inc.
Crown Beverage Packaging, Inc.
Central States Can Co. of Puerto Rico, Inc.
Crown Cork de Puerto Rico, Inc.
Crown Cork & Seal Company (DE), LLC
Crown Holdings (PA), LLC
-2-
Crown New Delaware Holdings, Inc.
SCHEDULE II
U.S. Security Agreement
COMMERCIAL TORT CLAIMS
----------------------
None.
SCHEDULE III
U.S. Security Agreement
Prior Liens
-----------
SECURED PARTY FILE
DEBTOR JURISDICTION ------------- NUMBER/DATE COLLATERAL
------ ------------ ----------- ----------
SCHEDULE IV
U.S. Security Agreement
Required Consents
-----------------
None.
SCHEDULE V
U.S. Security Agreement
Violations and/or Proceedings
-----------------------------
Lemelson Medical, Education & Research Foundation, Limited Partnership v.
- ------------------------------------------------------------------------
Butler Manufacturing Company, et al.
- -----------------------------------
(including Crown, Cork & Seal Company, Inc. "Crown"),
No. CIV 00-662-PHX-SMM (D. Ariz.), filed June 30, 2000.
The complaint seeks unspecified damages and alleges infringement of a patent
involving bar code reader technology. The case has been stayed pending
resolution of a similar case in the District of Nevada in which the defendants
have asserted a defense of patent prosecution laches.
SCHEDULE VI
U.S. Security Agreement
Excluded Letters of Credit
--------------------------
----------------------- --------------------- -- ------------------------ ------------------------------
Beneficiary Issuing Bank Applicant Amount
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal ABN AMRO Narong Canning Co., $49,670.83
Company, Inc. Thailand
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal ABN AMRO Narong Canning Co., 58,632.00
Company, Inc. Thailand
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal ABN AMRO Narong Canning Co., 58,632.00
Company, Inc. Thailand
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal ABN AMRO Narong Canning Co., 58,632.00
Company, Inc. Thailand
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal Bangkok Bank Siam Tin Food Products 229,092.00
Company, Inc.
----------------------- --------------------- -- ------------------------ ------------------------------
Crown Cork & Seal Bangkok Bank Siam Tin Food Products 171,819.00
Company, Inc.
----------------------- --------------------- -- ------------------------ ------------------------------
Annex I to the
U.S. Security Agreement
SUPPLEMENT NO. ___ dated as of [ ], to the U.S. Security
Agreement (the "Security Agreement") dated as of February 26, 2003, among Crown
Holdings, Inc., a Pennsylvania corporation ("Crown Holdings"), Crown Cork & Seal
Americas, Inc., a Pennsylvania corporation ("Crown Usco"), Crown Cork & Seal
Company, Inc., a Pennsylvania corporation ("CCSC"), Crown International, Inc., a
Delaware corporation ("Crown International"), each other Domestic Subsidiary of
Crown Holdings listed on Schedule I thereto (collectively, together with each
Domestic Subsidiary that becomes a party thereto pursuant to Section 7.15 of the
Security Agreement, the "Subsidiary Guarantors" and, together with Crown
Holdings, CCSC, Crown Usco and Crown International, the "Grantors"), and
Citicorp North America, Inc., 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 Security Agreement).
A. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Security Agreement.
B. Pursuant to Sections 5.11 and 5.12 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 and the Indentures is
required to enter into the Security Agreement as a Grantor upon becoming a
Domestic Subsidiary. Section 7.15 of the Security Agreement provides that
additional Subsidiaries of CCSC may become the Grantors under the Security
Agreement by execution and delivery of an instrument in the form of this
Supplement. The undersigned Domestic Subsidiary (the "New Grantor") is executing
this Supplement in accordance with the requirements of the Credit Agreement and
the Indentures to become a Grantor under the Security Agreement.
Accordingly, the Collateral Agent and the New Grantor agree follows:
SECTION 1. In accordance with Section 7.15 of the Security Agreement, the New
Grantor by its signature below becomes a Grantor under the Security Agreement
with the same force and effect as if originally named therein as a Grantor and
the New Grantor hereby (a) agrees to all terms and provisions of the Security
Agreement applicable to it as Grantor thereunder and (b) represents and warrants
that the representations and warranties made by it as Grantor thereunder are
true and correct on and as of the date hereof. In furtherance of the foregoing,
the New Grantor, as security for the payment and performance in full of the
Obligations (as defined in the Security Agreement), does hereby created 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 Grantor's right, title and interest in and to the
Collateral (as defined in the Security Agreement) of the New Grantor. Each
reference to a "Grantor" in the Security Agreement shall be deemed to include
the New Grantor. The Security Agreement is hereby incorporated herein by
reference. In addition, by signing this Agreement, the New Grantor acknowledges
that it has become a party to the U.S. Intercreditor Agreement and agrees to be
bound by all of the terms and provisions thereof.
-2-
SECTION 2. The New Grantor 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 on 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 Grantor and the Collateral Agent.
Delivery of 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 Grantor hereby represents and warrants that (a) set
forth on Schedule I attached hereto is a true and correct schedule of the
location of any and all Collateral of the New Grantor and (b) set forth under
its signature hereto, is the true and correct location of the chief executive
office of the New Grantor.
SECTION 5. Except as expressly supplemented thereby, the Security
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 Security Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity 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 7.01 of the Security Agreement. All
communications and notices hereunder of the New Grantor shall be given to it at
the address set forth under its signature below.
SECTION 9. The New Grantor agrees to reimburse the Collateral Agent of
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.
IN WITNESS WHEREOF, the New Grantor and the Collateral Agent have duly
executed this Supplement to the Security Agreement as of the day and year first
above written.
-3-
[Name of New Grantor],
By:
-----------------------------------
Name:
Title:
Address:
CITICORP NORTH AMERICA, INC.,
as Collateral Agent,
By:
-----------------------------------
Name:
Title:
SCHEDULE I
to Supplement No. __ to the
U.S. Security Agreement
LOCATION OF COLLATERAL
----------------------
Description Location
- ----------- --------
Annex II to the
U.S. Security Agreement
Form of Perfection Certificate