EXECUTION COPY
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
Dated as of January 26, 2001
as amended and restated as of May 7, 2001
among
CROWN CORK & SEAL COMPANY (USA), INC.,
CONSTAR, INC.,
RISDON-AMS (USA), INC.,
ZELLER PLASTIK, INC.,
CROWN CORK & SEAL CANADA INC.
as the Sellers,
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and
CROWN CORK & SEAL RECEIVABLES (DE) CORPORATION
as the Buyer
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and
CROWN CORK & SEAL COMPANY (USA), INC.
as the initial Buyer's Servicer
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TABLE OF CONTENTS
Section Page
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ARTICLE I DEFINITIONS
SECTION 1.01. Certain Defined Terms........................................2
SECTION 1.02. Other Terms..................................................4
SECTION 1.03. Computation of Time Periods..................................4
ARTICLE II SALE OF SELLER RECEIVABLES
SECTION 2.01. Sale of Seller Receivables...................................4
SECTION 2.02. Terms of Sales...............................................5
SECTION 2.03. General Settlement Procedures................................6
SECTION 2.04. Payments and Computations, Etc...............................7
SECTION 2.05. Buyer's Servicer Fee.........................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Each Seller................8
ARTICLE IV GENERAL COVENANTS OF EACH SELLER
SECTION 4.01. Affirmative Covenants of Each Seller........................12
SECTION 4.02. Negative Covenants of such Seller...........................15
ARTICLE V ADMINISTRATION AND COLLECTION
SECTION 5.01. Designation of Buyer's Servicer.............................17
SECTION 5.02. Rights of the Buyer and the Agent...........................18
SECTION 5.03. Responsibilities of the Seller..............................19
SECTION 5.04. Further Actions Evidencing Purchases........................19
ARTICLE VI INDEMNIFICATION
SECTION 6.01. Indemnities by the Seller...................................20
ARTICLE VII MISCELLANEOUS
SECTION 7.01. Amendments, Etc.............................................23
SECTION 7.02. Notices, Etc................................................23
SECTION 7.03. Binding Effect; Assignability...............................23
SECTION 7.04. Costs, Expenses and Taxes...................................23
SECTION 7.05. NonBusiness Days............................................25
SECTION 7.06. Confidentiality.............................................25
SECTION 7.07. Governing Law...............................................25
SECTION 7.08. Consent to Jurisdiction.....................................25
SECTION 7.09. Execution in Counterparts...................................26
SECTION 7.10. Intent of the Parties, etc..................................26
SECTION 7.11. Entire Agreement............................................26
SECTION 7.12. Severability of Provisions..................................26
SECTION 7.13. Waiver of Jury Trial.........................................1
EXHIBITS
EXHIBIT A Receivables Activity Report
EXHIBIT B Subordinated Note
SCHEDULES
SCHEDULE I Lock-Box Banks and Lock-Box Accounts
SCHEDULE II Description of Credit and Collection Policy
SCHEDULE III Forms of Invoices
SCHEDULE IV Location of Principal Place of Business, Chief Executive
Office and Office Where Records are Kept
SCHEDULE V Changes in Financial Conditions or Operations
SCHEDULE VI Trademark or other names for Sellers
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT
RECEIVABLES CONTRIBUTION AND SALE AGREEMENT dated as of January 26, 2001,
as amended and restated as of May 7, 2001 (this "Agreement") among CROWN CORK &
SEAL COMPANY (USA), INC. a Delaware corporation ("Crown (USA)"), CONSTAR, INC.,
a Pennsylvania corporation ("Constar"), RISDON-AMS (USA), INC., a Delaware
corporation ("Risdon"), ZELLER PLASTIK, INC., a Delaware corporation ("Zeller")
and CROWN CORK & SEAL CANADA INC., a corporation organized and existing under
the laws of Ontario, Canada ("Crown (Canada)" and together with Crown (USA),
Constar, Risdon and Zeller, the "Sellers", and each a "Seller"), CROWN CORK &
SEAL RECEIVABLES (DE) CORPORATION, a Delaware corporation (the "Buyer"), and
Crown (USA), as the initial Buyer's Servicer.
PRELIMINARY STATEMENTS:
(1) The parties hereto (other than Crown (Canada)) have entered into a
Receivables Contribution and Sale Agreement dated as of January 26, 2001 (such
Receivables Contribution and Sale Agreement being the "Existing Receivables
Contribution and Sale Agreement").
(2) The parties hereto have agreed to amend and restate the Existing
Receivables Contribution and Sale Agreement for the purpose of, among other
things, including Crown (Canada) as a party hereto as a Seller and providing for
the Seller Receivables (as hereinafter defined) to include Canadian Dollar
denominated Receivables (as defined in the Receivables Purchase Agreement, as
defined below) of Crown (Canada).
(3) Each Seller in the ordinary course of business generates, and will
generate from time to time, Receivables (as defined in the Receivables Purchase
Agreement, as defined below) from time to time owing to it.
(4) Each Seller wishes to sell to the Buyer from time to time hereunder all
present and future Receivables in respect of each of which, on the date of the
sale of such Receivable to the Buyer hereunder, the Obligor is a Designated
Obligor (as defined in the Receivable Purchase Agreement, as defined below)
(such Receivable being a "Seller Receivable"), together with the Related
Security and Collections (as hereinafter defined) with respect thereto.
(5) The Buyer wishes concurrently to sell interests, to the extent of the
Receivable Interests (as defined in the Receivables Purchase Agreement referred
to below) sold from time to time by it to the Purchasers (as defined in the
Receivables Purchase Agreement referred to below), in each of the present and
future Seller Receivables, together with the Related Security and Collections
with respect thereto, pursuant to the Receivables Purchase Agreement dated as of
January 26, 2001, as amended and restated as of May 7, 2001 (as the same may
from time to time be amended, supplemented or otherwise modified, the
"Receivables Purchase Agreement") among the Buyer, Crown (USA) as Servicer
thereunder, the Purchasers, and Citibank, N.A. ("Citibank"), as administrative
agent (the "Agent") for the Purchasers and any other owners of Receivable
Interests.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
that, effective as of the date hereof, the Existing Receivables Contribution and
Sale Agreement is amended and restated as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.
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Terms defined in the Receivable Purchase Agreement and not otherwise
defined herein are used in this Agreement as defined in the Receivable Purchase
Agreement. In addition, as used in this Agreement and unless otherwise stated
herein, the following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Agent" has the meaning specified in Preliminary Statement (5).
"Buyer's Servicer" has the meaning specified in Section 5.01.
"Buyer's Servicer Fee" has the meaning specified in Section 2.05.
"Citibank" has the meaning specified in Preliminary Statement (5).
"Collections" means, with respect to any Seller Receivable, all cash
collections and other cash proceeds of such Seller Receivable, including,
without limitation, (i) all cash proceeds of the Related Security with
respect to such Seller Receivable and (ii) any Collections of such Seller
Receivable deemed to have been received, and actually paid, pursuant to
Section 2.03.
"Contract" means an agreement between any Seller and an Obligor, in
any written form acceptable to such Seller, or in the case of any open
account agreement as evidenced by one of the forms of invoices set forth in
Schedule III hereto or otherwise approved by the Agent from time to time
(which approval shall not be unreasonably withheld), pursuant to or under
which such Obligor shall be obligated to pay for goods or services from
time to time.
"Credit and Collection Policy" means those credit and collection
policies and practices in effect on the date hereof relating to Contracts
and Receivables and described in Schedule II hereto, as modified from time
to time in compliance with Section 4.02(c).
"Indemnified Amounts" has the meaning specified in Section 6.01.
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"Indemnified Party" means any or all of the Buyer, the Purchasers and
the other Owners under the Receivables Purchase Agreement, the Agent and
their respective Affiliates and successors and assigns.
"Initial Purchase Price" has the meaning specified in Section 2.02(a).
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of any Seller, the Buyer or the Parent, (b) the rights and
remedies of the Buyer, the Agent or any other Indemnified Party or (c) the
ability of any Seller or the Parent to perform its obligations under this
Agreement or any other Transaction Document or the Contracts.
"Obligor" means a Person obligated to make payments pursuant to a Contract.
"Other Taxes" has the meaning specified in Section 7.04(b).
"Purchase Price" has the meaning specified in Section 2.02(b).
"Receivable Assets" has the meaning specified in Section 2.01(a).
"Receivables Activity Report" means a report prepared by the Seller,
in substantially the form attached hereto as Exhibit A, pursuant to Section
2.03(c).
"Receivables Purchase Agreement" has the meaning specified in
Preliminary Statement (5).
"Related Security" means with respect to any Receivable:
(i) all of the applicable Seller's interest in the goods (including
returned goods), if any, relating to the sale which gave rise to such
Receivable;
(ii) all other security interests or liens and property subject
thereto from time to time purporting to secure payment of such
Receivable, whether pursuant to the Contract related to such
Receivable or otherwise, together with all financing statements signed
by an Obligor describing any collateral securing such Receivable;
(iii) all letter of credit rights, guaranties, insurance and other
agreements or arrangements of whatever character from time to time
supporting or securing payment of such Receivables whether pursuant to
the Contract related to such Receivable or otherwise; and
(iv) all Records relating to such Receivable.
"Seller Receivable" has the meaning specified in Preliminary Statement
(4).
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"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including, without limitation,
contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light
of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subordinated Note" means a subordinated promissory note, in
substantially the form of Exhibit B hereto, executed by the Buyer to the
order of any Seller.
"Termination Date" means the Termination Date under and as defined in
the Receivables Purchase Agreement.
"Transaction Documents" means this Agreement, the Receivables Purchase
Agreement, the Parent Undertaking, the Subordinated Notes, the Lock-Box
Agreements, the Consent and Agreement and the Fee Letter.
SECTION 1.02. Other Terms.
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All accounting terms not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 in the UCC in the State of New
York and not specifically defined herein are used herein as defined in such
Article 9.
SECTION 1.03. Computation of Time Periods.
-----------------------------------------
Unless otherwise stated in this Agreement, in the computation of a period
of time from a specified date to a later specified date, the word "from" means
"from and including" and each of the words "to" and "until" means "to but
excluding".
ARTICLE II
SALE OF SELLER RECEIVABLES
SECTION 2.01. Sale of Seller Receivables.
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(a) Each Seller hereby sells, transfers and assigns, without recourse
(except as expressly provided herein), to the Buyer, on the terms and
subject to the conditions specifically set forth herein, all such Seller's
right, title and interest in, to and under all Seller Receivables existing
on the date of the Existing Receivables Contribution and Sale Agreement (in
the case of each Seller other than Crown (Canada)) and on the date hereof
(in the case of Crown (Canada)) and hereafter created from time to time
until the Termination Date, all Related Security and Collections with
respect thereto and all proceeds of the foregoing, together with all such
Seller's rights, remedies, powers and privileges with respect to such
Seller Receivables (collectively, the "Receivable Assets").
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(b) The parties to this Agreement intend that the transactions
contemplated hereby shall be, and shall be created as, a purchase by the
Buyer and a sale by each Seller of Receivable Assets and not as a lending
transaction. The foregoing sales, transfers and assignments do not
constitute and are not intended to result in a creation or assumption by
the Buyer of any obligation or liability with respect to any Seller
Receivable or Contract, nor shall the Buyer be obligated to perform or
otherwise be responsible for any obligation of any Seller or any other
Person in connection with any Receivable Assets or under any agreement or
instrument relating thereto.
(c) In connection with the foregoing sales, transfers and assignments,
each Seller agrees to record and file, at its own expense, proper financing
statements (and proper continuation or financing charge statements with
respect to such financing statements when applicable) with respect to the
Receivable Assets now and hereafter from time to time acquired by the Buyer
under this Agreement, in such manner and in such jurisdictions as are
necessary to perfect the sales, transfers and assignments of the Receivable
Assets to the Buyer hereunder, and to deliver copies of such financing
statements to the Buyer and the Agent on or prior to the initial Purchase
under the Receivable Purchase Agreement. Such financing statements shall
name such Seller as debtor/seller, the Buyer as secured party/buyer and the
Agent as assignee.
SECTION 2.02. Terms of Sales.
----------------------------
(a) On the date of the Existing Receivables Contribution and Sale
Agreement (in the case of each Seller other than Crown (Canada)) and on the
date hereof (in the case of Crown (Canada)), the Buyer does accept from
each Seller, and each Seller does sell, transfer and assign to the Buyer,
such Seller's right, title and interest in, to and under those Receivable
Assets that are outstanding on such date. As consideration for such sale,
transfer and assignment of Receivable Assets on such date, the Buyer shall
pay (or cause to be paid) to each Seller on such date an amount (such
Seller's "Initial Purchase Price") agreed upon prior to such date, between
such Seller and the Buyer to be reasonably equivalent value for such
Receivable Assets as of such date. On the date of the Existing Receivables
Contribution and Sale Agreement (in the case of each Seller other than
Crown (Canada)) and on the date hereof (in the case of Crown (Canada)) the
Buyer shall pay to the respective Sellers as part of the total Initial
Purchase Price paid to the respective Sellers the total amount which the
Purchasers shall pay to the Buyer in Capital on such date under the
Receivables Purchase Agreement. To the extent that such amount is not
sufficient to enable the Buyer to pay the Initial Purchase Price due to any
Seller or Sellers hereunder, the Buyer shall on such date pay to such
Seller or Sellers the Initial Purchase Price due to such Seller or Sellers
in a manner set forth in subsection (c) of this Section 2.02.
(b) On each Business Day after the date of the Existing Receivables
Contribution and Sale Agreement (in the case of each Seller other than
Crown (Canada)) and on each Business Day after the date hereof (in the case
of Crown (Canada)) until the Termination Date or, in the case of a Seller
that ceases to be an Originator, the date on which such Seller ceases to be
an Originator, the Buyer shall accept from each Seller, and each Seller
shall sell, transfer and assign to the Buyer, such Seller's right, title
and interest in, to and under those Receivable Assets that are created on
such Business Day. As consideration for such continuing sale and assignment
of Receivable Assets after the date of the Existing Receivables
Contribution and Sale Agreement or the date hereof, as applicable, the
Buyer shall pay (or cause to be paid) to such Seller an amount (such
Seller's "Purchase Price") agreed upon prior to the date of such sale and
assignment, between such Seller and the Buyer to be reasonably equivalent
value for such Receivable Assets as of the date of such sale and
assignment.
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(c) Each Seller's Purchase Price other than each Seller's Initial
Purchase Price, and the balance, if any, of each Seller's Initial Purchase
Price to be so paid by the Buyer on the date of the Existing Receivables
Contribution and Sale Agreement or the date hereof, as applicable, in
accordance with the last sentence of subsection (a) of this Section 2.02,
shall be paid in any of the following ways:
(i) in cash paid to such Seller in US Dollars or (in the case of
Canadian Receivables only) Canadian Dollars in same day funds on or
before the next occurring Settlement Date or the date of the Existing
Receivables Contribution and Sale Agreement or the date hereof, as the
case may be; or
(ii) upon the agreement of such Seller and the Buyer, by means of
indebtedness owed by the Buyer to such Seller evidenced by, and
payable with interest pursuant to, the Subordinated Note payable to
the order of such Seller; or
(iii) a combination of the above;
provided, however, that the Buyer may not pay any such Purchase Price or such
balance of any such Initial Purchase Price, as the case may be, for such
Receivable Assets by way of subordinated indebtedness referred to in clause (ii)
above to the extent that the ratio of the aggregate indebtedness of the Buyer
under the Subordinated Notes to the total equity capital of the Buyer exceeds 9
to 1.
SECTION 2.03. General Settlement Procedures.
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(a) If on any day the Outstanding Balance of a Seller Receivable is
either (i) reduced as a result of any defective, rejected or returned goods
or services, any discount, or any adjustment by any Seller or (ii) reduced
or canceled as a result of a setoff in respect of any claim by the Obligor
thereof against such Seller (whether such claim arises out of the same or a
related transaction or an unrelated transaction), such Seller shall be
deemed to have received on such day a Collection of such Receivable in the
amount of such reduction or cancellation (in the case of any such
Receivable that is a Canadian Receivable, in the amount of the Equivalent
in US Dollars of such reduction or cancellation) and shall make the payment
required to be made by it in connection with such Collection on the day
required by, and otherwise pursuant to, Section 4.01(i). If on any day any
of the representations or warranties in Section 3.01(f) is no longer true
with respect to any Seller Receivable, the Seller to which such Seller
Receivable shall have been originally owed shall be deemed to have received
on such day a Collection in full of such Seller Receivable (in the case of
any such Pool Receivable that is a Canadian Receivable, a Collection in
full of the Equivalent in US Dollars of such Pool Receivable) and shall
make the payment
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required to be made by it in connection with such Collection on the day
required by, and otherwise pursuant to, Section 4.01(i). In addition, Crown
(Canada) shall be deemed to have received as a Collection on the day of
conversion of any Collections denominated in Canadian Dollars into US
Dollars an amount equal to the amount (if any) by which the Equivalent in
US Dollars of such Collections exceeds the amount of US Dollars realized on
such conversion and shall make the payment required to be made by it in
connection with such Collection on the day required by, and otherwise
pursuant to, Section 4.01(i). Except as stated in the preceding sentences
of this Section 2.03 or as otherwise required by law or the underlying
Contract, all Collections received from an Obligor of any Receivable shall
be applied to Receivables then outstanding of such Obligor in the order of
the age of such Receivables, starting with the oldest such Receivable,
except if payment is designated by such Obligor for application to specific
Receivables.
(b) On or prior to the day the Servicer is required to make a deposit
with respect to a Settlement Period pursuant to Section 2.05 or 2.06 of the
Receivables Purchase Agreement, the Buyer's Servicer shall advise the Buyer
and the Agent of each Liquidation Day and each Provisional Liquidation Day
occurring during such Settlement Period and the allocation of the amount of
such deposit to each outstanding Receivable Interest.
(c) At least two Business Days before each Settlement Date, the
Buyer's Servicer shall prepare and forward to the Buyer and the Agent a
Receivables Activity Report of the Buyer's Servicer, as of the close of
business of the Buyer's Servicer on the last day of the immediately
preceding Settlement Period, relating to the Receivable Assets during such
Settlement Period and setting forth the calculation of the actual Purchase
Price for each Receivable Asset sold, transferred and assigned during such
Settlement Period, and the reconciliation of how the Purchase Price has
been paid reflecting the cash advanced from the Buyer to each Seller during
such Settlement Period, the adjustments to and current balance, if any, due
from the Buyer to each Seller under its Subordinated Note, and the amount
of additional cash, if any, to be paid by the Buyer to each Seller on such
Settlement Date.
SECTION 2.04. Payments and Computations, Etc.
--------------------------------------------
(a) All amounts to be paid or deposited by each Seller or the Buyer's
Servicer hereunder shall be paid or deposited in accordance with the terms
hereof no later than 12:00 noon (New York City time) on the day when due in
US Dollars in same day funds to the Buyer as directed by the Buyer to such
Seller or the Buyer's Servicer in writing. Each Seller shall, to the extent
permitted by law, pay to the Buyer interest on all amounts not paid or
deposited when due hereunder at 3.50% per annum above the Base Rate in
effect from time to time, payable on demand; provided, however, that such
interest rate shall not at any time exceed the maximum rate permitted by
applicable law.
(b) All computations of interest and fees hereunder shall be made on
the basis of a year of 360 days for the actual number of days (including
the first but excluding the last day) elapsed.
(c) For the purposes of the Interest Act (Canada), (i) whenever any
interest or fee under this Agreement is calculated using a rate based on a
year of 360 days or 365 days, as the case may be, the rate determined
pursuant to such calculation, when expressed as an annual rate, is
equivalent to (x) the applicable rate based on a year of 360 days or 365
days, as the case may be, (y) multiplied by the actual number of days in
the calendar year in which the period for which such interest or fee is
payable (or compounded) ends, and (z) divided by 360 or 365, as the case
may be, (ii) the principle of deemed reinvestment of interest does not
apply to any interest calculation under this Agreement, and (iii) the rates
of interest stipulated in this Agreement are intended to be nominal rates
and not effective rates or yields.
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(d) Each Seller hereby irrevocably and unconditionally waives and
relinquishes to the fullest extent it may legally do so (i) any express or
implied vendor's lien, and any other lien, security interest, charge or
encumbrance, which would otherwise be imposed on or affect any Seller
Receivable or any Receivable Asset on account of any unpaid amount of such
Seller's Initial Purchase Price or any Purchase Price therefor or on
account of any other unpaid amounts otherwise payable by the Buyer under or
in connection with this Agreement or the Subordinated Note payable to the
order of such Seller or otherwise and (ii) with respect to the obligations
of such Seller to make payments or deposits under this Agreement
(including, without limitation, payments under Sections 2.03 and 6.01), any
setoff, counterclaim, recoupment, defense and other right or claim which
such Seller may have against the Buyer as a result of or arising out of the
failure of the Buyer to pay any amount on account of such Seller's Initial
Purchase Price or any Purchase Price under Sections 2.01 and 2.02 or any
other amount payable by the Buyer to such Seller under this Agreement or
the Subordinated Note payable to the order of such Seller or otherwise.
SECTION 2.05. Buyer's Servicer Fee.
------------------------------------
The Buyer shall pay to the Buyer's Servicer a collection fee (the "Buyer's
Servicer Fee") from the date of the Existing Receivables Contribution and Sale
Agreement until the Termination Date, payable on each Settlement Date, in an
amount equal to the amount payable to the Servicer under the Receivables
Purchase Agreement or such other amount calculated on an arm's-length basis for
services performed as a subcontractor on terms common to collection agency
arrangements in comparable asset sale transactions; provided, however, that the
Buyer shall be given a credit against the Buyer's Servicer Fee payable under
this Agreement equal to the full amount of the Servicer Fee paid under the
Receivables Purchase Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of Each Seller.
------------------------------------------------------------
Each Seller represents and warrants as follows:
(a) Such Seller is a corporation duly incorporated, validly existing
and in good standing under the laws of its jurisdiction of incorporation
indicated at the beginning of this Agreement, and is duly qualified to do
business, and is in good standing, in every jurisdiction where the nature
of its business requires it to be so qualified, except to the extent that
any failure to be so qualified or in good standing could reasonably be
expected to result in a Material Adverse Effect.
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(b) The execution, delivery and performance by such Seller of the
Transaction Documents to which it is a party and the other documents to be
delivered by it thereunder, and the transactions contemplated hereby and
thereby, including such Seller's use of the proceeds of the sales,
transfers and assignments of Receivable Assets hereunder, are within such
Seller's corporate powers, have been duly authorized by all necessary
corporate action, do not (i) contravene such Seller's charter, articles or
by-laws, (ii) violate any applicable law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award, or (iii) breach or
result in a default under, or result in the acceleration of (or entitle any
party to accelerate) the maturity of any obligation of such Seller under,
or result in or require the creation of any lien upon or security interest
in any property of such Seller pursuant to the terms of, any Contract or
any other agreement or instrument (other than any Transaction Document)
binding on or affecting such Seller or any of its properties.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by such Seller of any
Transaction Document to which it is a party or any other agreement or
document to be delivered thereunder, or for the perfection of or the
exercise by any Indemnified Party of its rights and remedies under such
Transaction Document or such other agreement or document, except for the
filing of the financing statements referred to in Section 2.01(c).
(d) This Agreement has been, and each other Transaction Document to
which such Seller is a party when delivered will have been, duly executed
and delivered by such Seller. This Agreement is, and the other Transaction
Documents to which such Seller is a party when delivered will be, the
legal, valid and binding obligations of such Seller enforceable against
such Seller in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the rights of creditors generally and to general equitable
principles.
(e) There is no pending or, to the best of such Seller's knowledge,
threatened action or proceeding affecting such Seller before any court,
governmental agency or arbitrator or other authority, domestic or foreign,
which could reasonably be expected to have a Material Adverse Effect or
which purports to affect the legality, validity or enforceability of this
Agreement or any other Transaction Document.
(f) Immediately prior to each sale, transfer, assignment and/or
contribution by such Seller of any Receivable Assets hereunder, such Seller
is the legal and beneficial owner of such Receivable Assets, free and clear
of any Adverse Claim. Upon each sale, transfer, assignment and/or
contribution by such Seller of each Receivable Asset hereunder, the Buyer
shall have a valid and perfected first priority undivided 100% ownership
interest or security interest in such Receivable Asset free and clear of
any Adverse Claim except as created or permitted by this Agreement and the
Receivables Purchase Agreement. No effective financing statement or other
instrument similarly in effect covering any Contract or any Receivable
Assets is on file in any recording office, except those filed in favor of
the Buyer and the Agent relating to this Agreement or in favor of the Agent
and relating to the Receivables Purchase Agreement.
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(g) No proceeds of any sale, transfer, assignment and/or contribution
by such Seller of any Seller Receivable hereunder will be used to acquire
any security in any transaction which is subject to Sections 13 and 14 of
the Securities Exchange Act of 1934, as amended.
(h) Each Receivables Activity Report, Seller Report, Weekly Report and
Daily Report (if prepared by such Seller or one of its Affiliates, or to
the extent that information contained therein is supplied by such Seller or
any Affiliate thereof), information, exhibit, financial statement, or other
report or document furnished or to be furnished at any time by or on behalf
of such Seller to the Buyer or the Agent or any Owner in connection with
this Agreement or the Receivables Purchase Agreement is or will be accurate
in all material respects as of its date or as of the date so furnished, and
no such report or document contains, or will contain, as of its date of
delivery or the date so furnished, any untrue statement of a material fact
or omits to state, or will omit to state, as of its date of delivery or the
date so furnished, a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which
they were made, not misleading.
(i) The principal place of business and chief executive office of such
Seller, and the office where such Seller keeps its Records concerning the
Receivable Assets, are located at the address specified for the Seller in
Schedule IV hereto (or, by notice to the Buyer and the Agent in accordance
with Section 4.01(e), at such other locations in jurisdictions, within the
United States or in the case of Crown (Canada), Ontario, Canada, where all
actions required by Section 5.04(a) have been taken and completed).
(j) The names and addresses of all the Lock-Box Banks, together with
the lock-box numbers related to, and the account numbers of, the Lock-Box
Accounts of such Seller at such Lock-Box Banks, are specified in Schedule I
hereto (or such other Lock-Box Banks and/or such other Lock-Box Accounts as
have been notified to the Buyer and the Agent in accordance with Section
4.02(d)).
(k) Except as set forth on Schedule VI hereto, such Seller has not
changed its name during the four-month period prior to the date of the
Existing Receivables Contribution and Sale Agreement, and has no
tradenames, fictitious names, assumed names or "doing business as" names.
(l) The Initial Purchase Price payable to such Seller on the date of
the Existing Receivables Contribution and Sale Agreement or the date
hereof, as applicable, pursuant to Section 2.02(a) for the Receivable
Assets outstanding on the date of the Existing Receivables Contribution and
Sale Agreement or the date hereof, as applicable, and the Purchase Price
payable on each Settlement Date pursuant to Section 2.02(b) for such
Seller's Receivable Assets created after such date, in each case
constitutes fair consideration and approximates fair market value for such
Receivable Assets, and the terms and conditions (including, without
limitation, such Initial Purchase Price or Purchase Price, as applicable,
therefor) of the sale, transfer and assignment of such Receivable Assets
pursuant to Sections 2.01 and 2.02 reasonably approximate an arm's-length
transaction between unaffiliated parties. No such sale, transfer or
assignment has been made for or on account of an antecedent debt owed by
such Seller to the Buyer and no such sale, transfer or assignment is or may
be voidable or subject to avoidance under any section of the U.S.
Bankruptcy Code.
10
(m) Such Seller has filed, or caused to be filed or be included in,
all tax reports and returns (federal, state, local and foreign), if any,
required to be filed by it and paid, or caused to be paid, all amounts of
taxes, including interest and penalties, required to be paid by it, except
for such taxes (i) as are being contested in good faith by proper
proceedings and (ii) against which adequate reserves shall have been
established in accordance with and to the extent required by GAAP, but only
so long as the proceedings referred to in clause (i) above could not
subject the Agent or any other Indemnified Party to any civil or criminal
penalty or liability or involve any material risk of the loss, sale or
forfeiture of any property, rights or interests covered hereunder or under
the Receivables Purchase Agreement.
(n) The consolidated unaudited balance sheet of such Seller and its
subsidiaries as at December 31, 2000, and the related consolidated
unaudited statements of income and retained earnings and of cash flows of
such Seller and its subsidiaries for the fiscal year then ended, fairly
present the consolidated financial condition of such Seller and its
subsidiaries as at such date, and the consolidated results of the
operations and cash flows of such Seller and its subsidiaries for the
periods ended on such date, all in accordance with generally accepted
accounting principles applied on a consistent basis. Since December 31,
2000, there has been no material adverse change in such condition or
operations, other than to the extent expressly set forth on Schedule V
hereto or disclosed in any public filing prior to the date of the Existing
Receivables Contribution and Sale Agreement with the Securities and
Exchange Commission, or in the collectibility of such Seller's Seller
Receivables taken as a whole or in the ability of such Seller (as Seller,
the Buyer's Servicer, the Servicer or otherwise) to perform its obligations
under any Transaction Document, other than to the extent expressly set
forth on Schedule V hereto or disclosed in any public filing prior to the
date of the Existing Receivables Contribution and Sale Agreement with the
Securities and Exchange Commission.
(o) Such Seller is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code.
(p) Such Seller has not sold, assigned, transferred, pledged or
hypothecated any interest in any Receivable Assets with respect thereto to
any Person other than as contemplated by this Agreement.
11
(q) Such Seller has complied with the Credit and Collection Policy in
all material respects and since the date of this Agreement there has been
no change in the Credit and Collection Policy except as permitted
hereunder.
(r) Since December 31, 2000, no event has occurred which could result
in a Material Adverse Effect, other than to the extent expressly set forth
on Schedule V hereto or disclosed in any public filing prior to the date of
the Existing Receivables Contribution and Sale Agreement with the
Securities and Exchange Commission.
(s) Such Seller has not extended or modified the terms of any Seller
Receivable or the Contract under which any such Seller Receivable arose,
except in accordance with the Credit and Collection Policy or in accordance
with Section 6.02(b) of the Receivables Purchase Agreement.
(t) Except under the Lock-Box Agreements, such Seller has not granted
any Person dominion or control of any Lock-Box Account, or the right to
take dominion or control over any Lock-Box Account at a future time or upon
the occurrence of a future event.
(u) Such Seller is Solvent.
ARTICLE IV
GENERAL COVENANTS OF EACH SELLER
SECTION 4.01. Affirmative Covenants of Each Seller.
--------------------------------------------------
Until the later of (i) the Termination Date and (ii) the date on which no
Capital of any Receivable Interest shall be outstanding and all other amounts
due to the Agent and each Owner under the Receivables Purchase Agreement shall
have been paid in full, each Seller shall, unless the Buyer and the Agent shall
otherwise consent in writing:
(a) Compliance with Laws, Etc.
-------------------------
Comply in all material respects with all applicable laws, rules,
regulations and orders with respect to it and all Receivable Assets.
(b) Payment of Taxes, Etc.
---------------------
Pay and discharge, before the same shall become delinquent, (i) all
taxes, assessments and governmental charges or levies imposed upon it or
upon its property and (ii) all lawful claims that, if unpaid, might by law
become a lien upon its property; provided, however, that such Seller shall
not be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained.
(c) Maintenance of Insurance.
------------------------
Maintain insurance with responsible and reputable insurance companies
or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar
properties in the same general areas in which such Seller operates.
12
(d) Preservation of Corporate Existence, Etc.
----------------------------------------
Preserve and maintain its existence and, except where the failure to
do so could reasonably be expected to have a Material Adverse Effect, its
rights (charter and statutory), permits, licenses, approvals, privileges
and franchises; provided, however, that such Seller may consummate any
merger or consolidation permitted under Section 4.02(i).
(e) Offices, Records and Books of Accounts.
--------------------------------------
(i) Keep its principal place of business and chief executive office
and the offices where it keeps its Records concerning the Receivable
Assets at the address of such Seller referred to in Section 3.01(i)
or, upon at least thirty days' prior written notice to the Agent, at
any other location in a jurisdiction where all action required by
Section 5.04(a) shall have been taken and completed, and
(ii) maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records
evidencing Seller Receivables in the event of the destruction of the
originals thereof), and keep and maintain all documents, books,
records and other information reasonably necessary or advisable for
the collection of all Seller Receivables (including, without
limitation, records adequate to permit the daily identification of
each Seller Receivable, the Outstanding Balance of each Seller
Receivable and the dates which payments are due thereon and all
Collections of and adjustments to each existing Seller Receivable).
(f) Performance and Compliance with Contracts and Credit and
----------------------------------------------------------------
Collection Policy.
-----------------
At its expense, timely and fully (i) perform, or cause to be
performed, and comply in all material respects with, or cause to be
complied with in all material respects, all material provisions, covenants
and other promises required to be observed by it under the Contracts
related to the Seller Receivables, and timely and fully comply in all
material respects with the Credit and Collection Policy in regard to the
Seller Receivables and the related Contracts and (ii) as beneficiary of any
Related Security, enforce such Related Security as reasonably requested by
the Agent.
(g) Examination of Records; Audits.
------------------------------
(i) From time to time upon two days prior notice and during regular
business hours as requested by the Buyer or the Agent, permit the
Buyer or the Agent, or their respective agents or representatives, (A)
to examine and make copies of and abstracts from all Records in the
possession or under the control of such Seller or any of its
Affiliates or any agent of such Seller or its Affiliates relating to
Seller Receivables and the Related Security, including, without
limitation, the related Contracts, and (B) to visit the offices and
properties of such Seller or any of its Affiliates or any agent of
such Seller or its Affiliates for the purpose of examining such
materials described in clause (A) above, and to discuss matters
relating to Seller Receivables and the Related Security or such
Seller's performance hereunder or under the Contracts with any of the
officers or employees of such Seller having knowledge of such matters,
and
(ii) at the request of the Buyer or the Agent within 90 days after the
end of each fiscal year of such Seller commencing with the fiscal year
ending on December 31, 2001, and at the request of the Buyer or the
Agent at any time and from time to time upon the occurrence and during
the continuance of any Event of Termination or Potential Event of
Termination, at the expense of such Seller, cause its independent
public accountants to perform, and deliver to the Buyer and the Agent,
a written report of an audit conducted by such accountants with
respect to the Seller Receivables, Credit and Collection Policy,
Lock-Box Account activity and the performance by such Seller (as
Seller, the Buyer's Servicer, the Servicer or otherwise) of its
obligations under this Agreement and the Receivables Purchase
Agreement on a scope and in a form reasonably requested by either the
Buyer or the Agent for such audit.
13
(h) Keeping of Records and Books of Account.
---------------------------------------
(i) Keep, or cause to be kept, proper books of record and account,
which shall be maintained or caused to be maintained by such Seller
and shall be separate and apart from those of any Affiliate of such
Seller, in which full and correct entries shall be made of all
financial transactions and the assets and business of such Seller in
accordance with GAAP,
(ii) to the extent Records are in written form, segregate such Records
in file cabinets or storage containers and appropriately label such
file cabinets or storage containers to reflect that the Receivable
Assets have been conveyed to the Buyer, and (iii) to the extent such
Records constitute computer programs and other non-written Records,
appropriately legend such Records to reflect that the Receivable
Assets have been conveyed to the Buyer.
(i) Deposits to Lock-Box Accounts.
--------------------------------
Instruct, or cause to be instructed, all Obligors to make payments in
respect of Seller Receivables to a Lock-Box Account and, if such Seller
shall otherwise receive any Collections (including, without limitation, any
Collections deemed to have been received by such Seller pursuant to Section
2.03), segregate and hold in trust such Collections and deposit such
Collections directly to any Lock-Box Account within two Business Days
following its receipt thereof.
(j) Reporting Requirements.
-----------------------
Provide to the Buyer and the Agent the following:
(i) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year, unaudited
consolidated and consolidating balance sheets of such Seller and its
subsidiaries as of the end of such quarter and consolidated and
consolidating statements of income and an unaudited consolidated
statement of cash flows of such Seller and its subsidiaries for the
period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and unaudited consolidated and
consolidating statements of income and an unaudited consolidated
statement of cash flows of such Seller and its subsidiaries for the
period commencing at the end of the previous fiscal year and ending
with the end of such quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding
period of the preceding fiscal year, all in reasonable detail and duly
certified (subject to year-end audit adjustments) by the Chief
Financial Officer, Vice President of Finance or Treasurer of such
Seller as having been prepared in accordance with GAAP;
14
(ii) as soon as available and in any event within 120 days after the
end of each fiscal year, consolidated and consolidating balance sheets
of such Seller and its subsidiaries as of the end of such fiscal year
and consolidated and consolidating statements of income and a
consolidated statement of cash flows of such Seller and its
subsidiaries for such fiscal year, setting forth in each case in
comparative form the corresponding figures for the previous fiscal
year, all in reasonable detail and duly certified by the Chief
Financial Officer, Vice President of Finance or Treasurer of such
Seller as having been prepared in accordance with GAAP;
(iii) as soon as available and in any event within 30 days after the
end of each fiscal year, a copy of the financial projections and
business plans of such Seller and its subsidiaries for the forthcoming
three fiscal years, in form and substance satisfactory to the Agent;
(iv) promptly after the commencement thereof, notice of all actions
and proceedings before any court or governmental agency or arbitrator
or other authority affecting the Seller of the type described in
Section 3.01(e);
(v) as soon as possible and in any event within two days after an
officer of such Seller becomes aware of the occurrence of each Event
of Termination or Potential Event of Termination, a statement of the
chief financial officer of the Seller setting forth details of such
Event of Termination or event and the action that the Seller has taken
and proposes to take with respect thereto; and
(vi) such other information as the Buyer or the Agent may, from time
to time, reasonably request with respect to the Receivable Assets or
the condition or operations, financial or otherwise, of such Seller or
any of its Affiliates.
SECTION 4.02. Negative Covenants of such Seller.
-----------------------------------------------
Until the later of (i) the Termination Date and (ii) the date on which no
Capital of any Receivable Interest shall be outstanding and all other amounts
due to the Agent and each Owner shall have been paid in full, each Seller shall
not, without the prior written consent of the Buyer and the Agent:
(a) Sales, Adverse Claims, Etc.
--------------------------
Except as otherwise provided herein, sell, assign (by operation of law
or otherwise) or otherwise dispose of, or grant any option with respect to,
or create or suffer to exist any Adverse Claim upon or with respect to, any
Receivable Asset, or upon or with respect to any related Contract or upon
or with respect to any deposit account to which any Collections of any
Seller Receivables are sent (including, without limitation, any Lock-Box
Account), or assign any right to receive income in respect thereof.
(b) Extension or Amendment of Receivables.
-----------------------------------------
Except as otherwise permitted in the Receivables Purchase Agreement,
extend, amend or otherwise modify the terms of any Seller Receivable, or
amend, modify or waive any term or condition of any Contract related
thereto.
15
(c) Change in Business or Credit and Collection Policy.
---------------------------------------------------------------
Make any change in the character of its business or in the Credit
andCollection Policy that would, in either case, be reasonably likely to
impair the collectibility of the Seller Receivables.
(d) Change in Payment Instructions to Obligors.
------------------------------------------
Add or terminate any bank as a Lock-Box Bank, or any deposit account
as a Lock-Box Account, from those listed in Schedule I, or make any change
in the instructions to Obligors regarding payments to be made to any
Lock-Box Account, unless the Agent shall have received at least 20 days'
prior written notice of such addition, termination or change and shall have
received, with respect to each new Lock-Box Account, (i) a Lock-Box
Agreement executed by the Lock-Box Bank that maintains such Lock-Box
Account and such Seller and (ii) a related undated Lock-Box Notice executed
by such Seller.
(e) Deposits to Lock-Box Accounts.
-----------------------------
Deposit or otherwise credit, or cause or permit to be so deposited or
credited, to any Lock-Box Account cash or cash proceeds other than
Collections of Seller Receivables.
(f) Change of Name, Etc.
--------------------
Change its name, identity or form of legal structure or jurisdiction
of its organization, unless, prior to the effective date of any such
change, such Seller delivers to the Agent (i) UCC financing statements, or
PPSA financing charge statements in the case of Crown (Canada), executed by
such Seller, necessary to reflect such change and to continue the
perfection of the Buyer's ownership interests in the Receivable Assets
sold, transferred and assigned hereunder, and (ii) if the identity or
structure of such Seller has changed and such change adversely affects the
rights of the Agent under then existing Lock-Box Agreements with such
Seller to take control of the Lock-Box Accounts pursuant to Section
6.03(a), new Lock-Box Agreements executed by such Seller and the Lock-Box
Banks to the extent necessary to reflect such change and to continue to
enable the Agent to exercise such rights, together with related undated
Lock-Box Notices executed by such Seller.
(g) Accounting of Purchases.
-----------------------
Prepare any financial statements which shall account for the
transactions contemplated hereby in any manner other than the sale of the
Receivable Assets by such Seller to the Buyer or in any other respect
account for or treat the transactions contemplated hereby (including but
not limited to accounting purposes, but excluding tax reporting purposes)
in any manner other than as a sale of the Receivable Assets by such Seller
to the Buyer.
(h) Voluntary Petitions.
-------------------
Cause the Buyer to file a voluntary petition under the U.S. Bankruptcy
Code or any other bankruptcy or insolvency laws so long as the Buyer is not
"insolvent" within the meaning of the U.S. Bankruptcy Code, and unless, and
only unless, such filing has been authorized in accordance with the Buyer's
Constituent Documents.
(i) Mergers, Etc.
------------
Enter into a transaction of consolidation or merger with any Person
unless (i) before and after giving effect on a pro forma basis to such
consolidation or merger, no event shall have occurred and be continuing, or
would result from such consolidation or merger, that constitutes an Event
of Termination or Potential Event of Termination and (ii) such Person is
not the Buyer and either (A) such Seller shall survive such consolidation
or merger or (B) such other corporation or entity formed by such
consolidation or into which such Seller shall be merged shall assume, in a
writing on terms reasonably satisfactory to the Buyer and the Agent, all of
such Seller's rights, obligations and liabilities under the Transaction
Documents and all the other instruments or documents delivered or to be
delivered thereunder.
16
(j) Maintenance of Separate Existence.
---------------------------------
Take any action, or omit to take any action, if the effect is to cause
the Buyer to fail to perform or observe in any material respect the
covenants contained in Sections 5.01(h) and (i) of the Receivables Purchase
Agreement or to otherwise cause the Buyer not to be considered as legal
entity separate and distinct from such Seller.
ARTICLE V
ADMINISTRATION AND COLLECTION
SECTION 5.01. Designation of Buyer's Servicer.
---------------------------------------------
The Seller Receivables shall be serviced, administered and collected by the
Person (the "Buyer's Servicer") designated from time to time to perform the
duties of the Servicer under the Receivables Purchase Agreement in accordance
with Section 6.01 of the Receivables Purchase Agreement, and shall be serviced,
administered and collected by the Buyer's Servicer in the manner set forth in
Section 6.02 of the Receivables Purchase Agreement (including by subcontracting
to any Originator pursuant to Section 6.01 of the Receivables Purchase
Agreement). Until the Agent designates a new Servicer in accordance with Section
6.01 of the Receivables Purchase Agreement, Crown (USA) is hereby designated to
act as, and Crown (USA) hereby agrees to perform the duties and obligations of,
the Buyer's Servicer hereunder.
SECTION 5.02. Rights of the Buyer and the Agent.
-----------------------------------------------
(a) Each of the Buyer and the Agent acting together or alone may
notify the Obligors of Seller Receivables, at any time and at the Seller's
expense, of the Buyer's interest in the Seller Receivables and the
ownership of Receivable Interests by the Owners. The Agent is hereby
authorized at any time to date, and to deliver to the Lock-Box Banks, the
Lock-Box Notices referred to in the Lock-Box Agreements. Each Seller
hereby, when the Agent shall deliver the Lock-Box Notices to the Lock-Box
Banks, transfers to the Agent the exclusive ownership, dominion and control
of the Lock-Box Accounts to which the Obligors of Pool Receivables shall
make payments, and shall take any further action that the Agent may
reasonably request to effect such transfer.
(b) At any time following the designation of a Seller's Servicer other
than the Seller pursuant to Section 6.01 of the Receivables Purchase
Agreement:
(i) Each of the Buyer and the Agent acting together or alone may,
at the expense of the respective Sellers to which the respective
Seller Receivables shall have been originally owed, direct the
Obligors of such Seller Receivables, or any of them, to make
payment of all amounts due or to become due to any Seller under
Seller Receivables directly to the Agent or its designee.
17
(ii) Each Seller shall, at the Buyer's or the Agent's request and
at such Seller's expense, give notice of such ownership to such
Obligors and direct them to make such payments directly to the
Agent or its designee.
(iii) Each Seller shall, at the Buyer's or the Agent's request
and at such Seller's expense, (A) assemble all of the Records
that evidence or relate to the Receivable Assets, and shall make
the same available to the Agent at a place reasonably selected by
the Agent or its designee, and (B) segregate all cash, checks and
other instruments received by it from time to time constituting
Collections of Seller Receivables in a manner reasonably
acceptable to the Agent and, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly
executed instruments of transfer, to the Agent or its designee.
(iv) The Agent may take any and all reasonably commercial steps
in the name of any Seller and on behalf of such Seller, the Buyer
and the Owners that are necessary or desirable, in the
determination of the Agent, to collect amounts due under the
Seller Receivables, including, without limitation, endorsing such
Seller's name on checks and other instruments representing
Collections of Seller Receivables and enforcing the Seller
Receivables and the Related Security and related Contracts, and
adjusting, settling or compromising the amount or payment
thereof, in the same manner and to the same extent as such Seller
might have done.
SECTION 5.03. Responsibilities of the Seller.
--------------------------------------------
Anything herein to the contrary notwithstanding:
(a) Each Seller shall perform its obligations under the Contracts
related to the Seller Receivables to the same extent as if the Receivable
Assets had not been sold and the exercise by the Buyer or the Agent of its
rights hereunder shall not release the Buyer's Servicer or such Seller from
any of its duties or obligations with respect to any Seller Receivables or
under the related Contracts; and
(b) Neither the Buyer nor the Agent nor the Owners nor any other
Indemnified Party shall have any obligation or liability with respect to
any Seller Receivables or related Contracts, nor shall any of them be
obligated to perform any of the obligations of the Seller thereunder.
SECTION 5.04. Further Actions Evidencing Purchases.
--------------------------------------------------
(a) Each Seller agrees that from time to time, at its expense, it will
promptly execute and deliver all further instruments and documents, and
take all further action, that may be necessary, or that the Buyer or the
Agent may reasonably request, to perfect, protect or more fully evidence
the sale, transfer and assignment of Receivable Assets by such Seller to
the Buyer hereunder and the Receivable Interests purchased by the Owners
under the Receivables Purchase Agreement, or to enable any of them or the
Agent to exercise and enforce their respective rights and remedies
hereunder or under the Receivables Purchase Agreement. Without limiting the
foregoing, each Seller will, upon the request of the Buyer or the Agent,
(i) execute and file such financing or continuation statements or
amendments thereto, and such other instruments and documents, that may be
necessary, or that the Buyer or the Agent may reasonably request, to
perfect, protect or evidence such sales, transfers and assignments and such
Receivable Interests; (ii) mark conspicuously each invoice evidencing each
Seller Receivable and the related Contract with a legend, acceptable to the
Buyer or the Agent, as applicable, evidencing that such Seller Receivables
have been sold, transferred and assigned to the Buyer in accordance with
this Agreement; and (iii) mark its master data processing records
evidencing such Seller Receivables and related Contracts with such legend.
18
(b) Each Seller hereby authorizes each of the Buyer and the Agent
acting together or alone (upon prior written notice to the Seller) to file
one or more financing or continuation statements and amendments thereto
relating to all or any of the Receivable Assets without the signature of
such Seller where permitted by law. A photocopy or other reproduction of
this Agreement shall be sufficient as a financing statement where permitted
by law.
(c) If Crown (USA) in its capacity as Buyer's Servicer fails to
perform any of its obligations hereunder, the Buyer or the Agent may, upon
prior written notice to Crown (USA), itself perform, or cause performance
of, such obligation; and the reasonable costs and expenses of the Agent or
the Buyer incurred in connection therewith shall be payable by the Seller
under Section 6.01 or 7.04, as applicable.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Indemnities by the Seller.
---------------------------------------
Without limiting any other rights that any Indemnified Party may have
hereunder or under applicable law, and whether or not any of the transactions
contemplated hereby are consummated, each Seller hereby agrees to indemnify each
Indemnified Party from and against, and hold each thereof harmless from, any and
all claims, losses, liabilities, costs and expenses of any kind whatsoever
(including, without limitation, reasonable attorneys' fees and expenses) (all of
the foregoing being collectively referred to as "Indemnified Amounts") arising
out of, or resulting from, in whole or in part, the activities of such Seller in
connection herewith or with any other Transaction Document or the use of
proceeds of sales, transfers and assignments of Receivable Assets hereunder;
excluding, however, Indemnified Amounts to the extent resulting solely and
directly from either (x) the gross negligence or willful misconduct on the part
of such Indemnified Party, or (y) the failure to collect amounts in respect of a
Seller Receivable to the extent such failure results from a discharge of the
Obligor with respect thereto in a proceeding in respect of such Obligor under
applicable bankruptcy laws or otherwise results from the Obligor's financial
inability to pay such amounts. Without limiting or being limited by the
foregoing and whether or not any of the transactions contemplated hereby are
consummated, each Seller shall pay on demand to each Indemnified Party any and
all amounts necessary to indemnify such Indemnified Party from and against any
and all Indemnified Amounts which relate to or result from, or which would not
have occurred but for, one or more of the following:
19
(i) any Receivable originally owed to such Seller becoming a
Seller Receivable which is not at the date of its sale, transfer
and assignment hereunder an Eligible Receivable;
(ii) any representation or warranty or statement made or deemed
made by such Seller (or any of its officers) under or in
connection with this Agreement or any other Transaction Document
or any Receivables Activity Report, Seller Report, Weekly Report
or other document delivered or to be delivered by such Seller in
connection herewith or with any other Transaction Document being
incorrect in any material respect when made or deemed made or
delivered;
(iii) the failure by such Seller to comply with any applicable
law, rule or regulation with respect to any Seller Receivable
originally owed to such Seller or the related Contract or any
Related Security with respect thereto; or the failure, as a
result of any action or omission of such Seller, of any Seller
Receivable or the related Contract or any Related Security with
respect thereto to conform to any such applicable law, rule or
regulation;
(iv) the failure by any action or inaction of such Seller to vest
in the Buyer a first priority perfected 100% ownership interest
in each Seller Receivable originally owed to such Seller and the
Related Security and Collections in respect thereof, free and
clear of any Adverse Claim;
(v) the failure of such Seller to have filed, or any delay by
such Seller in filing, financing statements or other similar
instruments or documents under the PPSA or the UCC of any
applicable jurisdiction or other applicable laws with respect to
any Seller Receivable originally owed to such Seller and the
Related Security and Collections in respect thereof, whether at
the time of the initial sale, transfer and assignment hereunder
or at any subsequent time;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of any Obligor with or against such
Seller to the payment of any Seller Receivable originally owed to
such Seller (including, without limitation, any defense based on
the fact or allegation that such Receivable or the related
Contract is not a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms), or
any other claim resulting from the sale by such Seller of the
goods or services related to such Receivable or such Seller's
furnishing or failure to furnish such goods or services;
(vii) any failure of Crown (USA), as Buyer's Servicer, Servicer,
or otherwise, to perform its duties, obligations or covenants
under and in accordance with this Agreement or any other
Transaction Documents or to perform its duties or obligations
under any Contract;
20
(viii) any product liability, personal injury, copyright
infringement, theft of services, property damage, or other breach
of contract, antitrust, unfair trade practices or tortious claim
arising out of or in connection with any action or omission of
such Seller and the subject matter of any Contract or out of or
in connection with any transaction contemplated by this
Agreement, any other Transaction Document or any other instrument
or document furnished pursuant hereto or such Contract;
(ix) the commingling by such Seller of Collections of Seller
Receivables originally owed to such Seller at any time with other
funds;
(x) any action or omission by such Seller, whether as Servicer or
otherwise, reducing or impairing the rights of the Buyer
hereunder or of any Owner of a Receivable Interest under the
Receivables Purchase Agreement, any other Transaction Document or
any other instrument or document furnished pursuant hereto or
thereto or with respect to any Seller Receivable;
(xi) any cancellation or modification of a Seller Receivable
originally owed to such Seller, the related Contract or any
Related Security, whether by written agreement, verbal agreement,
acquiescence or otherwise;
(xii) (A) any investigation, litigation or proceeding related to
or arising from this Agreement, any other Transaction Document or
any other instrument or document furnished pursuant thereto, or
any transaction contemplated by this Agreement or any Contract,
or the ownership of, or other interest in, any Seller Receivable
originally owed to such Seller, the related Contract or Related
Security, excluding, however, Indemnified Amounts to the extent
resulting from a claim of any Indemnified Party that does not
arise out of or result from any action or omission of such Seller
or (B) the use by such Seller of proceeds of any sale, transfer
and assignment of any Receivable Asset hereunder;
(xiii) the existence of any Adverse Claim against or with respect
to any Seller Receivable originally owed to such Seller, the
related Contract, Related Security or Collections and resulting
from any act or omission of such Seller;
(xiv) any failure by such Seller to pay when due any taxes,
including without limitation sales, excise or personal property
taxes, payable by such Seller in connection with any Seller
Receivable originally owed to such Seller or the related Contract
or any Related Security with respect thereto;
(xv) any claim brought by any Person other than an Indemnified
Party arising from any action or omission of by such Seller or
any Affiliate of such Seller (other than the Buyer) in servicing,
administering or collecting any Seller Receivable originally owed
to such Seller; or
21
(xvi) any failure by any Lock-Box Bank holding a Lock-Box Account
in the name of such Seller to comply with the terms of the
Lock-Box Agreement to which such Lock-Box Bank is a party; or
(xvii) to the extent not covered by the foregoing clauses, the
occurrence and continuance of any Event of Termination resulting
from an act or omission of such Seller.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendments, Etc.
-----------------------------
No amendment or waiver of any provision of this Agreement or consent to any
departure by any Seller or the Buyer therefrom shall be effective unless in a
writing and signed by the Agent (with the consent or at the request of the
Required Purchasers) and, in the case of any such waiver or consent, the party
against which the waiver or consent is to be enforced or, in the case of any
such amendment, the Buyer and each Seller, and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given. No failure on the part of the Buyer, any Owner or the Agent to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
SECTION 7.02. Notices, Etc.
--------------------------
All notices and other communications hereunder shall, unless otherwise
stated herein, be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered, to
each party hereto, at its address set forth under its name on the signature
pages hereof or at such other address as shall be designated by such party in a
written notice to the other parties hereto. All such notices and communications
shall, when mailed, telegraphed, telecopied or telexed, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier or confirmed by telex answerbacks, respectively, except that notices
and communications to the Buyer and the Agent pursuant to Article II shall not
be effective until received by the Buyer and the Agent.
SECTION 7.03. Binding Effect; Assignability.
-------------------------------------------
This Agreement shall become effective when it shall have been executed by
each Seller (including Crown (USA) as the Buyer's Servicer) and the Buyer and
acknowledged by the Agent, and thereafter shall be binding upon and inure to the
benefit of such Seller, the Buyer, the Agent, and each other Indemnified Party
and their respective successors and assigns, except that no Seller shall have
the right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of the Buyer and the Agent, and the Buyer
shall not have the right to assign its rights or obligations hereunder or any
interest herein except pursuant to the Consent and Agreement. This Agreement
shall create and constitute the continuing obligation of the parties hereto in
accordance with its terms, and shall remain in full force and effect until the
Termination Date; provided, however, that rights and remedies with respect to
the provisions of Article VI and Sections 2.03, 7.04, 7.05 and 7.06 shall be
continuing and shall survive any termination of this Agreement.
22
SECTION 7.04. Costs, Expenses and Taxes.
---------------------------------------
(a) In addition to the rights of indemnification granted under this
Agreement, each Seller agrees to pay on demand all costs and expenses in
connection with the preparation, execution, delivery and administration
(including periodic auditing of Receivables) of, and searches and filings
in respect of, this Agreement, the other Transaction Documents and the
other documents and agreements to be delivered hereunder or thereunder, and
costs and expenses, if any, incurred by the Buyer under Section 11.04 of
the Receivables Purchase Agreement, including, without limitation, in each
case, the reasonable fees and disbursements of counsel for the Agent and
the Purchasers with respect thereto and advising the Agent as to its rights
and remedies hereunder. Each Seller further agrees to pay on demand all
costs and expenses, if any (including, without limitation, reasonable
counsel fees and disbursements) of each Owner, the Agent or any Affiliate
thereof, in connection with the enforcement (whether through negotiations,
legal proceedings or otherwise) of this Agreement, the other Transaction
Documents and the other instruments and documents to be delivered in
connection herewith or therewith.
(b) In addition, each Seller agrees to pay any present or future stamp
or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, any other Transaction Document, or any other document or
instrument delivered in connection herewith or therewith (but excluding
income taxes, such non-excluded taxes being hereinafter referred to as
"Other Taxes"). Each Seller shall indemnify each Indemnified Party for and
hold it harmless against the full amount of Other Taxes (including, without
limitation, any taxes imposed by any jurisdiction on amounts payable under
this Section 7.04(b)) imposed on or paid by such Indemnified Party and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto whether or not such Other Taxes
were correctly or legally asserted. This indemnification shall be made
within 30 days from the date such Indemnified Party makes written demand
therefor (with a copy to the Agent).
SECTION 7.05. NonBusiness Days.
------------------------------
In any case where any payment or action is due under this Agreement on a
day which is not a Business Day, such payment or action may be made on the next
succeeding Business Day, but such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be.
SECTION 7.06. Confidentiality.
-----------------------------
Except as otherwise required by applicable law, each of the parties hereto
agrees to maintain the confidentiality of this Agreement, the Receivables
Purchase Agreement, the Consent and Agreement, the Parent Undertaking, the Fee
Letter (and all drafts thereof) and all non-public information delivered in
connection herewith in communications with third parties and otherwise; provided
that this Agreement, the Receivables Purchase Agreement, the Parent Undertaking,
the Consent and Agreement, the Fee Letter and such information may be disclosed
(i) to third parties to the extent such disclosure is made pursuant to a written
confidentiality agreement in form and substance substantially identical to this
Section 7.06, (ii) to each Seller's, the Buyer's, the Agent's and each Owner's
legal counsel, accountants and auditors if they agree to hold it confidential,
(iii) to any nationally recognized rating agency, and (iv) pursuant to court
order or subpoena; provided, however, that each of the parties hereto agrees
that the disclosure of this Agreement, the Receivables Purchase Agreement, the
Consent and Agreement, the Fee Letter or other information required to be made
by or pursuant to court order or subpoena will not be made until the other
parties hereto have been notified at least five Business Days in advance of any
such disclosure, unless such notification is prohibited by applicable law or
such court order or subpoena.
23
SECTION 7.07. Governing Law.
---------------------------
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEWYORK.
SECTION 7.08. Consent to Jurisdiction.
-------------------------------------
(a) Each of the Sellers and the Buyer 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 any of the other Transaction Documents to which it is a party,
or for recognition or enforcement of any judgment, and each of the Sellers
and the Buyer hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
any such New York State court or, to the extent permitted by law, in such
Federal court. Each of the Sellers and the Buyer hereby agrees that service
of process in any such action or proceeding may be effected by mailing a
summons and complaint to it at its address specified in Section 7.02 by
registered mail, return receipt requested, or in any other manner permitted
by applicable law. Each of the Sellers and the Buyer 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 any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Transaction Documents in the
courts of any other jurisdiction.
(b) Each of the Sellers and the Buyer irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or
any of the other Transaction Documents to which it is a party in any New
York State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any
such court.
24
SECTION 7.09. Execution in Counterparts.
---------------------------------------
This Agreement may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement. Delivery by telecopier of
an executed counterpart of a signature page to this Agreement shall be effective
as delivery of an original executed counterpart of this Agreement.
SECTION 7.10. Intent of the Parties, etc.
----------------------------------------
As provided in Section 2.01(b), the parties to this Agreement intend that
the transaction contemplated by this Agreement shall be, and shall be treated
as, a purchase by the Buyer and a sale by each Seller of Receivable Assets and
not as a lending transaction. Recognizing the risk that, notwithstanding the
parties' intent, a court deciding the issue might recharacterize the Receivable
Asset transfers contemplated hereby as a secured lending transaction, it is the
intention of the parties hereto, in the event of such recharacterization, that
this Agreement shall constitute a security agreement under applicable law, and
that each Seller shall be deemed to have granted to the Buyer a duly perfected
first priority security interest in all of such Seller's right, title and
interest in such Receivable Assets, whether now owned or hereafter acquired, and
all cash and non-cash proceeds in respect thereof, free and clear of Adverse
Claims. In contemplation of such risk (but only for such purpose), (a) each
Seller hereby grants to the Buyer a duly perfected first priority security
interest in all of such Seller's right, title and interest in, to and under the
Receivable Assets, whether now owned or hereafter acquired, and all cash and
non-cash proceeds in respect thereof and (b) if such Seller shall have taken any
action, or suffered any event to occur, of the type described in Section 7.01(g)
of the Receivables Purchase Agreement, all of the obligations of such Seller
under this Agreement shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by such Seller.
SECTION 7.11. Entire Agreement.
------------------------------
This Agreement and the other Transaction Documents to which the parties
hereto are party contain a final and complete integration of all prior
expressions by the parties hereto with respect to the subject matter hereof and
shall constitute the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersede all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
SECTION 7.12. Severability of Provisions.
----------------------------------------
Any provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
25
SECTION 7.13. Waiver of Jury Trial.
----------------------------------
Each of the parties hereto irrevocably waives all right to trial by jury in
any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or any of the other
Transaction Documents or the actions of the Agent or any Indemnified Party in
the negotiation, administration, performance or enforcement hereof or thereof.
IN WITNESS WHEREOF, the parties have caused this amended and restated
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date above written.
CROWN CORK & SEAL COMPANY (USA), INC.
By: /s/ Michael B. Burns
------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
One Crown Way
Philadelphia, PA 19154
Attention: Michael B. Burns
Telephone No.: (215) 698-5036
Telecopier No.: (215) 676-6011
CONSTAR, INC.
By: /s/ Michael B. Burns
------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
One Crown Way
Philadelphia, PA 19154
Attention: Michael B. Burns
Telephone No.: (215) 698-5036
Telecopier No.: (215) 676-6011
RISDON-AMS (USA), INC.
By: /s/ Michael B. Burns
------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
One Risdon Street
Naugatuck, CT 06770
Attention: Michael B. Burns
Telephone No.: (215) 698-5036
Telecopier No.: (215) 676-6011
ZELLER PLASTIK, INC.
By: /s/ Michael B. Burns
------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
1515 Franklin Boulevard
Libertyville, IL 60048-4459
Attention: Michael B. Burns
Telephone No.: (215) 698-5036
Telecopier No.: (215) 676-6011
CROWN CORK & SEAL CANADA INC.
By: /s/ Adrian Cobbold
------------------------------
Name: Adrian Cobbold
Title: Director of Finance
and Chief Financial Officer
7900 Keele Street
Concord, Ontario L4K 2A3
Canada
Attention: Adrian Cobbold
Telephone No.: (905) 660-8250
Telecopier No.: (905) 669-9236
CROWN CORK & SEAL RECEIVABLES (DE) CORPORATION
By: /s/ Michael B. Burns
--------------------------------
Name: Michael B. Burns
Title: Vice President and Treasurer
919 Market Street
Wilmington, DE 19801
Attention: Michael B. Burns,
Vice President and Treasurer
Telephone No.: (215) 698-5036
Telecopier No.: (215) 676-6011
Acknowledged as of the date first above written:
CITIBANK, N.A.,
as Agent
By: /s/ Jeffrey Nitz
------------------------------------------------
Name: Jeffrey Nitz
Title: Vice President