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Document Preview Collateral Agency Agreement |
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Title: |
Collateral Agency Agreement |
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Entities: |
Bank of Nova Scotia; Citibank, NA; Citicorp North America, Inc.; Crown Holdings Inc.; Wells Fargo Bank Minnesota, NA; Wells Fargo Bank, NA; Bank of New York |
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Date: |
2005 |
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Size: |
Preview shows 30KB of 103KB total |
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Price: |
$62 |
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ID: |
#1015771 |
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EXECUTION
SECOND AMENDED AND RESTATED EURO INTERCREDITOR AND
COLLATERAL AGENCY AGREEMENT
This SECOND AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT (as amended, amended and restated or otherwise modified from time to time in accordance with the terms hereof, herein called this Agreement) is dated as of February 26, 2003, amended and restated as of September 1, 2004 and further amended and restated as of November 18, 2005 among (i) DEUTSCHE BANK AG NEW YORK BRANCH, as U.K. administrative agent (as successor to Citibank International PLC, as U.K. administrative agent under the 2004 Credit Agreement) (in such capacity, together with its successors and assigns, U.K. Administrative Agent or Bank Agent) for the Euro Revolving Lenders, Term B Euro Lenders and any other Lenders that from time to time make Additional Term Loans to any Non-U.S. Subsidiary of Crown Cork & Seal Company, Inc. (CCSC) from time to time party to the Credit Agreement (as defined below), (ii) THE BANK OF NOVA SCOTIA, as Canadian administrative agent for the Canadian Revolving Lenders from time to time party to the Credit Agreement (in such capacity, together with its successors and assigns, Canadian Administrative Agent), (iii) WELLS FARGO BANK, N.A., as trustee (in such capacity, together with its successors and assigns, the First Priority Notes Trustee) for the holders of the First Priority Notes (as defined below) issued under the First Priority Notes Indenture (as defined below), (iv) DEUTSCHE BANK AG NEW YORK BRANCH, as Euro Collateral Agent (as defined below) (as successor to Citicorp Trustee Company Limited), (v) CROWN EUROPEAN HOLDINGS SA (Crown Euroco), (vi) the subsidiaries of Crown Euroco identified on Schedule 1 hereto and (vii) the other persons who may become parties to this Agreement from time to time pursuant to and in accordance with Section 6 of this Agreement, and any other obligor under any Financing Documents (Crown Euroco and the entities described in clauses (vi) and (vii) are collectively referred to herein as the Obligors).
R E C I T A L S
WHEREAS, on February 26, 2003 (the Original Effective Date), Citibank International PLC (Existing U.K. Administrative Agent or Existing Bank Agent), Citicorp Trustee Company Limited (Existing Euro Collateral Agent), the Second Priority Notes Trustee (as defined below), the Third Priority Notes Trustee (as defined below) and the Euro Pledgors named therein entered into the Euro Intercreditor and Collateral Agency Agreement (the Original Agreement).
WHEREAS, on the Original Effective Date, Crown Americas LLC (f/k/a Crown Americas, Inc. and Crown Cork & Seal Americas, Inc.) (Crown Usco), Crown Euroco, the subsidiary borrowers named therein, Crown Holdings, Inc. (Crown Holdings), Crown International Holdings, Inc. and CCSC (collectively, the Credit Parties) entered into that certain credit agreement (the Original Credit Agreement) with the lenders named therein, Citicorp North America, Inc., as administrative agent (the Existing Administrative Agent), and Existing Bank Agent.
WHEREAS, on the Original Effective Date, Crown Euroco issued $1,085,000,000 in aggregate principal amount of Second Priority Dollar Notes and 285,000,000
in aggregate principal amount of Second Priority Euro Notes (collectively with the Second Priority Dollar Notes, the Second Priority Notes), in each case under an Indenture dated as of the Original Effective Date among Crown Euroco, the guarantors named therein and Wells Fargo Bank, N.A. (as successor by consolidation to Wells Fargo Bank Minnesota, National Association), as trustee (in such capacity, together with its successors and assigns, the Second Priority Notes Trustee) (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time as permitted by the Credit Agreement, the Second Priority Notes Indenture).
WHEREAS, on the Original Effective Date, Crown Euroco issued $725,000,000 in aggregate principal amount of Third Priority Notes under an Indenture dated as of the Original Effective Date between Crown Euroco, the guarantors named therein and Wells Fargo Bank, N.A. (as successor by consolidation to Wells Fargo Bank Minnesota, National Association), as trustee (in such capacity, together with its successors and assigns, the Third Priority Notes Trustee) (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time as permitted by the Credit Agreement, the Third Priority Notes Indenture).
WHEREAS, on September 1, 2004 (the First Amendment Effective Date), Crown Euroco issued 350,000,000 of First Priority Notes under an Indenture dated as of the First Amendment Effective Date among Crown Euroco, the guarantors named therein and the First Priority Notes Trustee (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time as permitted by the Credit Agreement, the First Priority Notes Indenture), the proceeds of which were used (together with the proceeds of the Loans under the 2004 Credit Agreement) to refinance in full all outstanding Term B Loans (as defined in the Original Credit Agreement) and terminate the Obligations and Commitments (each as defined in the Original Credit Agreement) under the Original Credit Agreement.
WHEREAS, on the First Amendment Effective Date, Existing Bank Agent, the First Priority Notes Trustee, the Second Priority Notes Trustee, the Third Priority Notes Trustee, Existing Euro Collateral Agent, Crown Euroco and the other Euro Pledgors (as defined in the First Amendment) entered into the First Amended and Restated Euro Intercreditor and Collateral Agency Agreement (the First Amendment).
WHEREAS, on the First Amendment Effective Date, the Credit Parties entered into that certain credit agreement (the 2004 Credit Agreement) with the lenders named therein, the Existing Administrative Agent and Existing Bank Agent.
WHEREAS, on or about October 6, 2004 Crown Euroco issued an additional 110,000,000 of First Priority Notes under the First Priority Notes Indenture, the proceeds of which were used to extend a loan to Crown Usco to repay its outstanding term loan under the 2004 Credit Agreement and for general corporate purposes.
WHEREAS, on the date hereof, Crown Usco and Crown Americas Capital Corp. (Crown Capital) intend to issue $1,100,000,000 of senior unsecured notes (the Senior Notes) under two Indentures dated as of the date hereof among Crown Usco and Crown Capital, as
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applicable, the guarantors named therein and Citibank, N.A., as senior notes trustee (collectively, as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time as permitted by the Credit Agreement, the Senior Notes Indenture), the proceeds of which shall be used (together with the proceeds of the Loans under the Credit Agreement and certain cash proceeds from the sale of Crown Holdings plastic closures division) to refinance (the Refinancing) not less than 66 2/3% of the outstanding Second Priority Notes and 66 2/3% of the outstanding Third Priority Notes, to repay in full all Loans under and terminate the Obligations and Commitments (each as defined in the 2004 Credit Agreement) under the 2004 Credit Agreement and for general corporate purposes.
WHEREAS, simultaneously with the issuance of the Senior Notes, the Credit Parties intend to enter into a new senior secured credit agreement dated as of the date hereof (as amended, amended and restated, supplemented, refinanced, replaced or otherwise modified from time to time, the Credit Agreement, which term shall also include and refer to any increase in the amount of indebtedness under the Credit Agreement to the extent permitted by the First Priority Notes Indenture and any refinancing or replacement of the Credit Agreement or one or more successor or replacement facilities whether or not with a different group of agents or lenders and whether or not with different obligors upon Bank Agents acknowledgment of the termination of the predecessor Credit Agreement, the new Bank Agents joinder and execution by the successor Bank Agents of an agreement to be bound by the terms of this Agreement), which Credit Agreement constitutes a refinancing and replacement of the 2004 Credit Agreement. Bank Agent under this Agreement is the agent for the Euro Revolving Lenders, Term B Euro Lenders and any other Lender that from time to time makes Additional Term Loans to any Non-U.S. Subsidiary of CCSC, Canadian Administrative Agent is the agent for the Canadian Revolving Lenders and Deutsche Bank AG, as administrative agent (the Administrative Agent) is the agent for the Term B Dollar Lenders, Dollar Revolving Lenders and any Lenders that from time to time advance Term Loans to CCSC or any U.S. Subsidiary of CCSC (as defined in the Credit Agreement) only from time to time under the Credit Agreement (the Lenders) (it being understood that the Term B Dollar Lenders, Dollar Revolving Lenders and any Lenders that from time to time advance Term Loans to CCSC or any U.S. Subsidiary of CCSC (as defined in the Credit Agreement) under the Credit Agreement shall have no rights and obligations under this Agreement).
WHEREAS, on the date hereof, Existing U.K. Administrative Agent and Existing Euro Collateral Agent have resigned as U.K. Administrative Agent and Euro Collateral Agent, respectively, and the Lenders under the Credit Agreement have appointed Deutsche Bank AG New York Branch as U.K. Administrative Agent and Euro Collateral Agent.
WHEREAS, on the date hereof, the parties to the Second Priority Notes Indenture and the Third Priority Notes Indenture shall amend each of the Second Priority Notes Indenture and the Third Priority Notes Indenture to, among other things, eliminate the requirement for any security to secure the Second Priority Notes and Third Priority Notes and to authorize the Second Priority Notes Trustee and Third Priority Notes Trustee to effectuate the release of the Second Priority Notes Trustees and Third Priority Notes Trustees respective Liens on the Collateral.
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WHEREAS, pursuant to the terms hereof, on the date hereof, Crown Euroco represents to Euro Collateral Agent and the First Priority Notes Trustee, that the entering into of the Credit Agreement is permitted by the First Priority Notes Indenture and that no consents or approvals are required thereunder.
WHEREAS, on the Original Effective Date, Crown Euroco, Crown Dveloppement SNC (now known as Crown Dveloppement SAS after giving effect to its change of corporate form on January 28, 2004) (Crown SAS) and certain non-U.S. Subsidiaries of Crown Euroco set forth on Schedule 1 hereto (collectively, and together with any other subsidiaries which are required by one or more Financing Documents to become Euro Pledgors, the Euro Pledgors) executed and delivered to Existing Euro Collateral Agent the Euro Security Documents (as defined in the First Amendment), which Euro Security Documents were amended and restated on the First Amendment Effective Date.
WHEREAS, on or after the date hereof the Euro Pledgors executed and delivered to Euro Collateral Agent either (i) further amendments to the Euro Security Documents (as defined in the First Amendment) or (ii) new Euro Security Documents, all as set forth on Schedule 2 hereto and any such Euro Security Documents for the sole benefit of the Second Priority Notes Trustee and/or the Third Priority Notes Trustee have been terminated.
WHEREAS, it is understood and acknowledged that only Bank Indebtedness (as defined below) will be secured by the Additional Bank Collateral (as defined below).
WHEREAS, it is contemplated that, to the extent permitted by the Credit Agreement, Crown SAS, Crown Euroco or any of its subsidiaries may from time to time enter into one or more Bank Related Hedging Agreements (as defined below) with any counterparty that is Bank Agent or a Lender or Affiliate thereof or any other person permitted under the Credit Agreement at the time such Bank Related Hedging Agreement was entered into (individually, a Bank Related Hedging Exchanger and, collectively, the Bank Related Hedging Exchangers) and it is desired that the obligations of Crown SAS, Crown Euroco or any of its subsidiaries under such Bank Related Hedging Agreements, including the obligation to make payments in the event of early termination thereunder (all such obligations being the Bank Related Hedging Obligations), be secured by the Euro Collateral (as defined below) pursuant to the Euro Security Documents (as defined below); provided that for any Bank Related Hedging Exchanger to receive the benefit of such security, it shall execute and deliver to Euro Collateral Agent an acknowledgment to this Agreement (in the form of Annex 1 attached hereto) agreeing to be bound by the terms hereof at any time prior to the payment in full of First Priority Indebtedness.
WHEREAS, it is contemplated that, to the extent permitted by the Credit Agreement, Crown SAS, Crown Euroco or any of its subsidiaries may from time to time enter into one or more Bank Related Cash Management Agreements (as defined below) with any counterparty that was Bank Agent or a Lender or Affiliate thereof or any other person permitted under the Credit Agreement at the time such Bank Related Cash Management Agreement was entered into (individually, a Bank Related Cash Management Exchanger and, collectively, the Bank Related Cash Management Exchangers) and it is desired that the obligations of Crown SAS, Crown Euroco or any of its subsidiaries under such Bank Related Cash Management
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Agreements, including the obligation to make payments in the event of early termination thereunder (all such obligations being the Bank Related Cash Management Obligations), be secured by the Euro Collateral pursuant to the Euro Security Documents; provided that for any Bank Related Cash Management Exchanger to receive the benefit of such security, it shall execute and deliver to Euro Collateral Agent an acknowledgment on or after the Original Effective Date to this Agreement (in the form of Annex 2 attached hereto) agreeing to be bound by the terms hereof at any time prior to the payment in full of First Priority Indebtedness.
WHEREAS, it is contemplated that, from time to time, to the extent permitted by the Credit Agreement, Crown Euroco may incur certain Additional First Priority Bank Indebtedness (as defined below) pursuant to the applicable Credit Documents (as defined below), which Additional First Priority Bank Indebtedness will be secured by the Euro Collateral pursuant to the Euro Security Documents and have the priority set forth herein.
WHEREAS, it is contemplated that, from time to time, to the extent permitted by the Credit Agreement and the First Priority Notes Indenture, any Euro Permitted Issuer may issue certain Additional First Priority Capital Markets Indebtedness (as defined below) pursuant to the applicable Additional First Priority Capital Markets Indebtedness Documents, which Additional First Priority Capital Markets Indebtedness will be secured by the Euro Collateral pursuant to the Euro Security Documents and have the priority set forth herein; provided that for any holder of any Additional First Priority Capital Markets Indebtedness to receive the benefit of such security, it shall cause its Additional First Priority Capital Markets Indebtedness Representative to execute and deliver to Euro Collateral Agent an acknowledgment to this Agreement (in the form of Annex 3 attached hereto) agreeing to be bound by the terms hereof.
WHEREAS, (a) the First Priority Notes Trustee (for its benefit and for the benefit of the respective holders of the First Priority Notes), Bank Agent and the Canadian Administrative Agent (for their respective benefit and for the benefit of Euro Collateral Agent, U.K. Administrative Agent and the Lenders), (b) in the event any Bank Related Hedging Obligations are to be secured by the Euro Security Documents, each Bank Related Hedging Exchanger party to any Bank Related Hedging Agreement, (c) in the event any Bank Related Cash Management Obligations are to be secured by the Euro Security Documents, each Bank Related Cash Management Exchanger party to any Bank Related Cash Management Agreement, (d) in the event any obligations in respect of Additional First Priority Bank Indebtedness are to be secured by the Euro Security Documents, Bank Agent or the Administrative Agent in respect of such Additional First Priority Bank Indebtedness (for its benefit and for the benefit of the Lenders of such Additional First Priority Bank Indebtedness) and (e) in the event any obligations in respect of Additional First Priority Capital Markets Indebtedness are to be secured by the Euro Security Documents, the Additional First Priority Capital Markets Indebtedness Representative in respect of such Additional First Priority Capital Indebtedness (for its benefit and for the benefit of the holders of such Additional First Priority Capital Markets Indebtedness) desire to set forth (i) certain additional provisions regarding the appointment, duties and responsibilities of Euro Collateral Agent and to set forth certain other provisions concerning the obligations of the Euro Pledgors to the Euro Secured Parties under the agreements referred to in the foregoing recitals and (ii) their agreement as to decisions relating to the exercise of remedies under the Euro Security Documents and certain limitations on the exercise of such remedies.
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WHEREAS, pursuant to Section 10(b) of the Original Agreement, as amended by the First Amendment, the parties hereto are entering into this Agreement in order to amend and restate the Original Agreement, as amended by the First Amendment, to, among other things, add appropriate references to the Credit Agreement, Euro Collateral Agent, Canadian Administrative Agent and Bank Agent.
A G R E E M E N T
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
The following capitalized terms used herein and not otherwise defined herein shall have the definitions set forth below. Terms not defined herein shall have the meanings ascribed to them in the Credit Agreement.
Additional Bank Collateral means the Additional Euro Stock Collateral and the Additional Subsidiary Borrower Collateral pledged to Euro Collateral Agent for the benefit of the Euro Revolving Lenders, Term B Euro Lenders, any other Lender that from time to time makes Additional Term Loans to any Non-U.S. Subsidiary of CCSC and the Canadian Revolving Lenders under the Credit Agreement, any Bank Related Hedging Exchanger and any Bank Related Cash Management Exchanger.
Additional Euro Stock Collateral means the Capital Stock of subsidiaries owned by each Euro Pledgor and pledged to Euro Collateral Agent for the benefit of Bank Indebtedness only.
Additional First Priority Bank Indebtedness means (i) Additional Term Loans (as defined in the Credit Agreement) incurred by Crown Euroco pursuant to the Credit Agreement, which indebtedness is secured by a first priority Lien in the manner described herein on the Euro Collateral and (ii) Loans (as defined in the Credit Agreement) pursuant to an Additional Facility (as defined in the Credit Agreement) incurred by any Non-U.S. Subsidiary of CCSC.
Additional First Priority Capital Markets Indebtedness means any unsubordinated indebtedness issued by a Euro Permitted Issuer after the date hereof and not owed to Crown Holdings or any of its subsidiaries (other than Additional First Priority Bank Indebtedness), to the extent permitted to be incurred by the Credit Agreement and the First Priority Notes Indenture, which indebtedness is secured by a first priority Lien in the manner described herein on the Euro Collateral.
Additional First Priority Capital Markets Indebtedness Documents means any indenture, debenture, note, guaranty, purchase agreement or other document executed by a Euro Permitted Issuer and its Subsidiaries in connection with the issuance of any such Additional First Priority Capital Markets Indebtedness.
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Additional First Priority Capital Markets Indebtedness Representative means any trustee or similar representative of the holders of any Additional First Priority Capital Markets Indebtedness.
Additional Subsidiary Borrower Collateral means the assets of any subsidiary borrower under the Credit Agreement pledged to the Euro Collateral Agent for the benefit of Bank Indebtedness only and securing the Obligations of such subsidiary borrower under Bank Indebtedness only to the extent such subsidiary borrower is not otherwise a subsidiary guarantor under any Additional First Priority Capital Markets Indebtedness.
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