EXECUTION COPY
UNDERTAKING AGREEMENT
Dated as of January 26, 2001
as amended and restated as of May 7, 2001
made by
CROWN CORK & SEAL COMPANY, INC.
as the Parent,
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in favor of
THE PURCHASERS REFERRED TO HEREIN
and
CITIBANK, N.A.
as Agent
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENTS.
SECTION 1. Unconditional Undertaking.....................................2
SECTION 2. Obligations Absolute..........................................2
SECTION 3. Waivers and Acknowledgments...................................4
SECTION 4. Subrogation...................................................4
SECTION 5. Representations and Warranties................................5
SECTION 6. Covenants.....................................................7
SECTION 7. Payments Free and Clear of Taxes, etc........................12
SECTION 8. Amendments, etc..............................................13
SECTION 9. Addresses for Notices........................................13
SECTION 10. No Waiver; Remedies..........................................13
SECTION 11. Continuing Agreement; Assignments under Receivables
Purchase Agreement.........................................13
SECTION 12. Entire Agreement.............................................14
SECTION 13. Severability of Provisions...................................14
SECTION 14. Confidentiality..............................................14
SECTION 15. Governing Law; Jurisdiction; Waiver of Jury Trial, etc.......14
EXHIBITS
Exhibit A Certain Defined Terms
Exhibit B Form of Compliance Certificate
UNDERTAKING AGREEMENT
UNDERTAKING AGREEMENT (this "Agreement"), dated as of January 26, 2001, as
amended and restated as of May 7, 2001 made by CROWN CORK & SEAL COMPANY, INC.,
a Pennsylvania corporation (the "Parent"), in favor of the Purchasers as defined
in the Receivables Purchase Agreement and CITIBANK, N.A. ("Citibank"), as
administrative agent (the "Agent") for the Purchasers and the other Owners.
PRELIMINARY STATEMENTS.
1. The Parent has executed and delivered an Undertaking Agreement dated as
of January 26, 2001 (such Undertaking Agreement being the "Existing Undertaking
Agreement").
2. The Parent, the Agent, the Purchasers and the other Owners have agreed
that the Parent shall amend and restate the Existing Undertaking Agreement in
connection with the amendment and restatement of the Receivables Purchase
Agreement (as hereinafter defined) and the Contribution and Sale Agreement (as
hereinafter defined) on the date hereof.
3. The Parent owns, directly or indirectly, all of the issued and
outstanding shares of common stock of Crown Cork & Seal Receivables (DE)
Corporation, a Delaware corporation (the "Seller"), and all of the issued and
outstanding shares of common stock of each of the Originators (as defined in the
Receivables Purchase Agreement).
4. The Seller and Crown (USA) as Servicer have entered into a Receivables
Purchase Agreement dated as of January 26, 2001, as amended and restated as of
the date hereof (such agreement, as it may from time to time be further amended,
supplemented or otherwise modified, being the "Receivables Purchase Agreement")
with the Purchasers and Citibank, N.A., as the Agent, pursuant to which the
Seller may sell to each Purchaser undivided percentage ownership interests in
its accounts receivable that were originally owed to each Originator and that
have been acquired from time to time by the Seller from each Originator pursuant
to a Receivables Contribution and Sale Agreement dated as of January 26, 2001,
as amended and restated as of the date hereof (such agreement, as it may from
time to time be further amended, supplemented or otherwise modified, being the
"Contribution and Sale Agreement") among the Originators, as sellers, the
Seller, as the Buyer, and Crown (USA), as the Buyer's Servicer.
5. Terms defined in either the Receivables Purchase Agreement or the
Contribution and Sales Agreement and not otherwise defined in this Agreement are
used in this Agreement (including, without limitation, Exhibit A to this
Agreement) as defined in the Receivables Purchase Agreement or the Contribution
and Sale Agreement, as applicable. Capitalized terms defined in Exhibit A to
this Agreement are used in this Agreement as defined in such Exhibit A.
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6. It is a condition precedent to the making of the initial Purchase under
the Receivables Purchase Agreement that the Parent shall have executed and
delivered this Agreement.
NOW, THEREFORE, in consideration of the premises, and the substantial
direct and indirect benefits to the Parent from the financing arrangements
contemplated by the Receivables Purchase Agreement and the Contribution and Sale
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parent hereby agrees that, effective as of
the date hereof, the Existing Undertaking Agreement is amended and restated as
follows:
SECTION 1. Unconditional Undertaking. The Parent hereby unconditionally and
irrevocably undertakes and agrees with and for the benefit of each of the
Purchasers and the other Owners and the Agent (collectively the "Indemnified
Parties") to cause the due and punctual performance and observance by each of
(a) the Seller and its successors and assigns, (b) Servicer (so long as any
Affiliate of the Parent is the Servicer) and (c) each of the Originators and
each of their respective successors and assigns, in each case of clauses (a),
(b), and (c), of all of the terms, covenants, agreements, undertakings and other
obligations on the part of the Seller, the Servicer (so long as any Affiliate of
the Parent is the Servicer) or each of the Originators, as applicable, to be
performed or observed under each of the Receivables Purchase Agreement, the
Contribution and Sale Agreement and the other Transaction Documents and the
other documents delivered in connection therewith in accordance with the terms
thereof, including, without limitation, the obligations to pay when due all
monetary obligations of each of the Seller, the Servicer (so long as any
Affiliate of the Parent is the Servicer) and the Originators now or hereafter
existing under the Receivables Purchase Agreement, the Contribution and Sale
Agreement and the other Transaction Documents, whether for Collections received,
deemed Collections, Yield, interest, indemnifications, fees, costs, expenses or
otherwise (such terms, covenants, agreements, undertakings and other obligations
being the "Obligations") and undertakes and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the Indemnified
Parties, or any of them, in enforcing any rights under this Agreement. In the
event that the Seller, the Servicer (so long as any Affiliate of the Parent is
the Servicer) or any of the Originators shall fail in any manner whatsoever to
perform or observe any of its Obligations when the same shall be required to be
performed or observed, then the Parent shall itself duly and punctually perform
or observe, or cause to be duly and punctually performed and observed, such
Obligation, and it shall not be a condition to the accrual of the obligation of
the Parent hereunder to perform or observe any Obligation (or to cause the same
to be performed or observed) that any Indemnified Party shall have first made
any request of or demand upon or given any notice to the Seller, the Servicer
(whether or not any Affiliate of the Parent is the Servicer) or any of the
Originators or any of their successors or assigns, or have instituted any action
or proceeding against the Seller, the Servicer (whether or not any Affiliate of
the Parent is the Servicer) or any of the Originators or any of their successors
or assigns in respect thereof.
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SECTION 2. Obligations Absolute. The Parent undertakes and agrees that the
Obligations will be paid and performed strictly in accordance with the terms of
the Transaction Documents and each other document delivered in connection
therewith, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of any Indemnified
Party with respect thereto. The obligations of the Parent under this Agreement
are independent of the Obligations, and a separate action or actions may be
brought and prosecuted against the Parent to enforce this Agreement,
irrespective of whether any action is brought against the Seller, the Servicer
(whether or not any Affiliate of the Parent is the Servicer) or any of the
Originators or whether the Seller, the Servicer (whether or not any Affiliate of
the Parent is the Servicer) or any of the Originators are joined in any such
action or actions. The liability of the Parent under this Agreement shall be
irrevocable, absolute and unconditional irrespective of, and, to the extent
permitted by law, the Parent hereby irrevocably waives any defenses (except for
any defenses arising or accruing as a result of the gross negligence or willful
misconduct of the Indemnified Parties) it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of the Obligations or any
Pool Receivable, any Receivable Interest or any Related Security, or of any
Transaction Document or any other document relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations under the Transaction
Documents or any other document relating thereto, or any other amendment or
waiver of or any consent to departure from any Transaction Document or any
other document relating thereto;
(c) any taking, exchange, release or nonperfection of or failure to
transfer title to any asset or collateral, or any taking, release,
amendment or waiver of or consent to departure from any guaranty, for all
or any of the Obligations;
(d) any manner of application of any asset or collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or other
disposition of any asset or collateral for all or any of the Obligations or
any other obligations of the Seller, the Servicer (whether or not any
Affiliate of the Parent is the Servicer) or any of the Originators under
the Transaction Documents or any other document relating thereto;
(e) any change, restructuring or termination of the structure or
existence of the Seller, the Servicer (whether or not any Affiliate of the
Parent is the Servicer) or any of the Originators;
(f) any failure of any Indemnified Party to disclose to the Parent any
information relating to the financial condition, operations, properties or
prospects of the Seller, or any of the Originators now or in the future
known to such Indemnified Party (the Parent waiving any duty on the part of
such Indemnified Party to disclose such information);
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(g) any impossibility or impracticality of performance, illegality,
any act of any government, or any other circumstance (including, without
limitation, any statute of limitations) or any existence of or reliance on
any representation by any Indemnified Party that might constitute a defense
available to, or a discharge of, the Seller, the Servicer (whether or not
any Affiliate of the Parent is the Servicer) or any of the Originators or a
guarantor of the Obligations; or
(h) any other circumstance, event or happening whatsoever, whether
foreseen or unforeseen and whether similar or dissimilar to anything
referred to above in this Section 2.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time (x) any payment in connection with any of the Obligations is
rescinded or must otherwise be returned by any Indemnified Party, or (y) any
performance or observance of any Obligation is rescinded or otherwise
invalidated, upon the insolvency, bankruptcy or reorganization of the Seller,
the Servicer (if any Affiliate of the Parent is the Servicer) or any of the
Originators or otherwise, all as though payment had not been made or as though
such Obligation had not been performed or observed.
SECTION 3. Waivers and Acknowledgments.
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(a) To the extent permitted by applicable law, the Parent hereby waives
promptness, diligence, notice of acceptance and any other notice (except to the
extent that such other notice is expressly required to be given to the Parent by
any Indemnified Party pursuant to any other Transaction Document) with respect
to any of the Obligations and this Agreement and any other document related
thereto, and any requirement that any Indemnified Party protect, secure, perfect
or insure any lien or any property subject thereto or exhaust any right or take
any action against the Seller, the Servicer (whether or not any Affiliate of the
Parent is the Servicer) or any of the Originators or any other Person or any
asset or collateral.
(b) The Parent hereby waives any right to revoke this Agreement, and
acknowledges that this Agreement is continuing in nature and applies to all
Obligations, whether existing now or in the future.
SECTION 4. Subrogation.
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The Parent shall not exercise or assert any rights that it may now have or
hereafter acquire against the Seller, the Servicer (to the extent the Parent is
not the Servicer), or any of the Originators that arise from the existence,
payment, performance or enforcement of the Parent's obligations under this
Agreement or any other Transaction Document, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification or any right to participate in any claim or remedy of any
Indemnified Party against the Seller, such Servicer or any of the Originators or
any asset or collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without limitation,
the right to take or receive from the Seller, such Servicer or any of the
Originators, directly or indirectly, in cash or other property or by setoff or
in any other manner, payment or security on account of such claim, remedy or
right, unless and until all amounts in connection with the Obligations and all
amounts payable under this Agreement shall have been paid in full and
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all other amounts payable to the Indemnified Parties under the Transaction
Documents shall have been paid in full. If any amount shall be paid to the
Parent in violation of the preceding sentence at any time prior to the later of
(i) the payment in full of the Obligations and all other amounts payable under
this Agreement and all amounts payable to the Indemnified Parties under the
Transaction Documents and (ii) the Termination Date, such amount shall be held
in trust for the benefit of the Indemnified Parties and shall forthwith be paid
to the Agent to be credited and applied to the Obligations, whether matured or
unmatured, in accordance with the terms of the Transaction Documents or to be
held by the Agent as collateral security for any Obligations payable under this
Agreement thereafter arising.
SECTION 5. Representations and Warranties.
-----------------------------------------
The Parent hereby represents and warrants as follows:
(a) The Parent is a corporation duly incorporated, validly
existing and in good standing under the laws of the jurisdiction of
its organization. Except where failure could not be reasonably
expected to have a Material Adverse Effect, the Parent (a) is duly
qualified to transact business and is in good standing in each
jurisdiction where the nature and extent of its business and
properties require the same, and (b) possesses all requisite
authority, power, licenses, approvals, permits, authorizations, and
franchises to use its assets and conduct its business as is now being,
or is contemplated herein to be, conducted.
(b) All of the issued and outstanding shares of common stock of
the Seller and each of the Originators, are owned, directly or
indirectly, by the Parent, or by a corporation owned directly or
indirectly by the stockholders of the Parent in substantially the same
proportions as their ownership of stock of the Parent, in each case
free and clear of any Adverse Claim other than a pledge of the stock
of the Originators as security for the Existing Credit Facilities.
(c) The execution, delivery and performance by the Parent of each
of this Agreement and the other Transaction Documents to which the
Parent is a party, and the transactions contemplated hereby and
thereby, are within the Parent's corporate powers, have been duly
authorized by all necessary corporate action and do not (i) contravene
the Parent's charter or bylaws, (ii) violate any applicable law, rule,
regulation, order, writ, judgment, injunction, decree, determination
or award binding on or affecting the Parent or any of its properties,
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 the Parent under, or result in or require the
creation of any lien upon or security interest in any property of the
Parent pursuant to the terms of, any credit or loan agreement,
indenture, or other agreement or instrument binding on or affecting
the Parent or any of its properties. Each of this Agreement and the
other Transaction Documents to which the Parent is a party have been
duly executed and delivered by the Parent.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution, delivery and
performance by the Parent of this Agreement or any of the other
Transaction Documents to which the Parent is a party or to ensure the
legality, validity or enforceability hereof or thereof.
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(e) Each of this Agreement and the other Transaction Documents to
which the Parent is a party are the legal, valid and binding
obligation of the Parent enforceable against the Parent in accordance
with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the rights of creditors generally
and to general equitable principles.
(f) The consolidated balance sheet of the Parent and its
consolidated subsidiaries as at December 31, 2000, and the related
consolidated statements of income and cash flows of the Parent and its
consolidated subsidiaries for the fiscal year then ended, in each case
certified by PricewaterhouseCoopers LLP, independent public
accountants, copies of which have been furnished to the Agent, fairly
present in all material respects the consolidated financial condition
of the Parent and its consolidated subsidiaries as at such date and
the consolidated results of the operations of the Parent and its
consolidated subsidiaries for the period ended on such date, all in
accordance with GAAP and, since December 31, 2000, there has been no
material adverse change in such condition or operations of the Parent,
or the ability of the Parent to perform its obligations hereunder or
under any other Transaction Document to which it is a party, in each
case other than to the extent expressly set forth on Schedule V to the
Receivables Purchase Agreement, Schedule V to the Contribution and
Sale Agreement, or in any public filing prior to the date hereof with
the Securities and Exchange Commission.
(g) Except as disclosed in the Parent's public filings prior to
the date hereof with the Securities and Exchange Commission or as
disclosed in writing to the Agent on or prior to the date hereof,
there is no pending or, to the knowledge of the Parent, threatened
action, suit or proceeding affecting the Parent or any of its
subsidiaries, or its property or the property of any of its
subsidiaries, before any court, governmental agency or arbitrator that
could reasonably be expected to have a Material Adverse Effect, or
that purports to affect the legality, validity or enforceability of
this Agreement or any of the other Transaction Documents to which the
Parent is a party.
(h) Each Seller Report, Weekly Report, Daily Report and
Receivables Activity Report (in each case if prepared by the Parent or
any Affiliate thereof, or to the extent that information contained
therein is supplied by the Parent or any Affiliate thereof), and each
notice or other written item of information, exhibit, financial
statement, document, book, record or report, furnished or to be
furnished at any time by the Parent or any Affiliate thereof to any
Indemnified Party in each case in connection with any Transaction
Document 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 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.
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(i) There are no conditions precedent to the effectiveness of
this Agreement or any of the other Transaction Documents to which the
Parent is a party that have not been satisfied or waived.
(j) The obligations of the Parent under this Agreement and each
of the other Transaction Documents to which the Parent is a party do
rank and will rank at least pari passu in priority of payment and in
all other respects with all other unsecured Debt of the Parent.
(k) The Parent is neither a "holding company" nor a "subsidiary
holding company" of a "holding company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended, or any
successor statute. Neither the Parent nor any of its Affiliates is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or any successor statute.
(l) (i) Except with respect to the Continental Can International
Corp. Salaried Pension Plan for 1993, no Plan has incurred an
accumulated funding deficiency, as defined in Section 302 of
ERISA and Section 412 of the Code, (ii) neither the Parent nor
any ERISA Affiliate has incurred material liability which is
currently due and remains unpaid under Title IV of ERISA to the
PBGC or to a Plan in connection with any such Plan (excluding,
however, premiums that may be owed to the PBGC), (iii) neither
the Parent nor any ERISA Affiliate has withdrawn in whole or in
part from participation in a Multiemployer Plan, except to the
extent that any such withdrawal could not reasonably be expected
to have a Material Adverse Effect, (iv) the Parent has not
engaged in any "prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Code) which would be a
Material Adverse Event, and (v) no Reportable Event (as defined
in Section 4043 of ERISA) has occurred which is likely to result
in the termination of a Plan. The actuarial present value of all
accumulated benefit liabilities within the meaning of Statement
of Financial Accounting Standards No. 35 under each Plan (based
on those actuarial assumptions used to fund such Plan) did not,
as of December 31, 1999, exceed the value of the assets of such
Plan, and the total actuarial present values of all accumulated
benefit liabilities within the meaning of Statement of Financial
Accounting Standards No. 35 of all Plans (based on the actuarial
assumptions used to fund each such Plan) did not, as of December
31, 1999, exceed the value of the assets of all such Plans.
SECTION 6. Covenants.
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The Parent covenants and agrees that, until the date that occurs 365 days
after the latest of (i) the Commitment Termination Date, and (ii) the date on
which no Capital of any Receivable Interest shall be outstanding and no Yield,
fees or other amounts remain unpaid under the Receivables Purchase Agreement,
the Parent will, unless the Required Purchasers shall otherwise consent in
writing:
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(a) Compliance with Laws, Etc.
-------------------------
Comply in all material respects with the provisions of all laws,
rules, regulations and orders applicable to it.
(b) Preservation of Corporate Existence, Etc.
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At all times (i) maintain its existence and good standing in the
jurisdiction of its organization (provided, however, that the Parent may
consummate any merger or consolidation permitted under Section 6(e)) and
its authority to transact business in all other jurisdictions where the
failure to so maintain its authority to transact business could reasonably
be expected to have a Material Adverse Effect; (ii) maintain all licenses,
permits, and franchises necessary for its business where the failure to so
maintain could reasonably be expected to have a Material Adverse Effect;
and (iii) keep all of its assets which are used in and necessary to its
business in good working order and condition (ordinary wear and tear
excepted) and make all necessary repairs thereto and replacements thereof,
except where the failure to do so would not reasonably be expected to have
a Material Adverse Effect. (c) Inspections. From time to time upon two
days' prior notice and during regular business hours as requested by the
Agent or any Purchaser, or 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, allow the Agent or any Purchaser (or their
respective agents or representatives) to inspect any of the properties of
the Parent or any of its consolidated subsidiaries, to review reports,
files, and other records of the Parent or any of its consolidated
subsidiaries and to make and take away copies thereof, to conduct tests or
investigations, and to discuss any of the affairs, conditions, and finances
of the Parent or any of its consolidated subsidiaries with the other
creditors, directors, officers, employees, other representatives, and
independent accountants of the Parent and its consolidated subsidiaries,
all at the expense of the
Parent.
d) Reporting Requirements.
----------------------
Furnish to the Agent:
(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 the
Parent and its consolidated subsidiaries as of the end of such
quarter and unaudited consolidated and consolidating statements
of income and an unaudited consolidated statement of cash flows
of the Parent and its consolidated 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 the Parent and its
consolidated 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
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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 the Parent as having been
prepared in accordance with GAAP, provided, however, that no such
balance sheets, statements of income or statements of cash flows,
as applicable, shall be required if and to the extent such
balance sheets, statements of income and statements of cash flows
are available on the Securities and Exchange Commission's
Electronic Data Gathering, Analysis and Retrieval database;
(ii) as soon as available and in any event within 120 days after
the end of each fiscal year, a copy of the annual audit report
for such year for the Parent and its consolidated subsidiaries,
including therein consolidated and consolidating balance sheets
of the Parent and its consolidated subsidiaries as of the end of
such fiscal year and consolidated and consolidating statements of
income and a consolidated statement of cash flows of the Parent
and its consolidated subsidiaries for such fiscal year, in each
case accompanied by an opinion acceptable to the Agent of
PricewaterhouseCoopers LLP or other independent public
accountants of recognized standing reasonably acceptable to the
Agent, provided, however, that no such copy of such annual audit
report or opinion, as applicable, shall be required if and to the
extent that such annual audit report and opinion are available on
the Securities and Exchange Commission's Electronic Data
Gathering, Analysis and Retrieval database;
(iii) promptly after the commencement thereof, notice of all
actions and proceedings before any court or governmental agency
or arbitrator or other authority affecting the Parent of the type
described in Section 5(g);
(iv) as soon as possible and in any event within two days after
an officer of the Parent becomes aware of the occurrence of each
Event of Termination or Potential Event of Termination, a
statement of the chief financial officer of the Parent setting
forth details of such Event of Termination or event and the
action that the Parent has taken and proposes to take with
respect thereto;
(v) 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 the Parent and its subsidiaries, in form
and substance satisfactory to the Agent;
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(vi) promptly after the sending thereof, copies of all reports
that the Parent sends to each of its securityholders, and copies
of all reports and registration statements that the Parent files
with the Securities and Exchange Commission (provided, however,
that no such copies shall be required with respect to any such
reports and registration statements which are available on the
Securities and Exchange Commission's Electronic Data Gathering,
Analysis and Retrieval database);
(vii) promptly upon its receipt of any notice, request for
consent, financial statements, certification, report or other
communication under or in connection with any Transaction
Document from any Person other than the Agent, copies of the
same;
(viii) as soon as possible and in any event within five days of
the Parent's knowledge thereof, notice of (A) any litigation,
investigation or proceeding against the Parent or any of its
Affiliates which may exist at any time and which, in the
reasonable judgment of the Parent, could be reasonably expected
to have a material adverse effect on the financial condition or
results of operations of the Parent, impair the ability of the
Parent to perform its obligations under this Agreement, or
materially adversely affect the collectibility of the Pool
Receivables, and (B) any material adverse development in any such
previously disclosed litigation, investigation or proceeding;
(ix) promptly after the Parent knows or has reason to know of any
of the following events, notice of such event: (A) the occurrence
of a Reportable Event that, alone or together with any other
Reportable Event (as defined in Section 4043 of ERISA), could
reasonably be expected to result in liability of the Parent to
the PBGC in an aggregate amount exceeding $100,000,000; (B) any
expressed statement in writing on the part of the PBGC of its
intention to terminate any Plan or Plans; (C) the Parent's or an
ERISA Affiliate's becoming obligated to file with the PBGC a
notice of failure to make a required installment or other payment
with respect to any Plan; or (D) the receipt by the Parent or an
ERISA Affiliate from the sponsor of a Multiemployer Plan of
either a notice concerning the imposition of withdrawal liability
in an aggregate amount exceeding $100,000,000 or of the impending
termination or reorganization of such Multiemployer Plan;
(x) as soon as available and in any event within 60 days after
the end of each quarter of each fiscal year, a certificate
substantially in the form of Exhibit B hereto, executed by the
chief financial officer, principal accounting officer, Treasurer
or Controller of the Parent, showing (in reasonable detail and
with appropriate calculations and computations in all respects
satisfactory to the Agent) compliance with the covenants set
forth in subsections (h), (i) and (j) of this Section 6 and
representing as to the absence of any Event of Termination;
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(xi) such other information, documents, records or reports
respecting the condition or operations, financial or otherwise,
of the Parent or any of its subsidiaries as the Agent may from
time to time reasonably request.
(e) Stock Ownership. Continue to own, directly or indirectly, or cause
a corporation owned directly or indirectly by the stockholders of the
Parent in substantially the same proportions as their ownership of stock of
the Parent, to own directly or indirectly all of the issued and outstanding
shares of capital stock of the Seller and each of the Originators free and
clear of any Adverse Claim.
(f) Merger, Etc. Not merge into or consolidate with any Person or
permit any Person to merge into it, unless, in each case, (i) immediately
after giving effect thereto, no event shall occur and be continuing that
constitutes an Event of Termination or a Potential Event of Termination and
(ii) the corporation formed by such consolidation or into which the Parent
shall be merged shall, at the effective time of such merger or
consolidation, assume the Parent's obligations under this Agreement and the
other Transaction Documents to which it is a party in a writing reasonably
satisfactory in form and substance to the Agent; and not sell, assign or
otherwise dispose of all, or substantially all, of its assets in any
transaction or series of transactions, unless, in each case, (i)
immediately after giving effect thereto, no event shall occur and be
continuing that constitutes an Event of Termination or a Potential Event of
Termination, (ii) such sale, assignment or other disposition is to (A) one
or more Affiliates of the Parent, or (B) a Person the acquisition of 100%
of the Parent by whom would not constitute a Change of Control, and (iii)
such Affiliates or such Person or the holder, directly or indirectly, of
100% of the equity interests of such Affiliates or such Person shall, at
the effective time of such sale, assignment or disposition, assume the
Parent's obligations under this Agreement and the other Transaction
Documents to which it is a party in a writing reasonably satisfactory in
form and substance to the Agent.
(g) Taxes. File all tax returns and reports required by law to be
filed by it and promptly pay all taxes and governmental charges at any time
owing, except any such taxes which are not yet delinquent or are being
diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP have been set aside on its books.
(h) Interest Expense Coverage Ratio. Not permit the ratio of (a)
Consolidated EBITDA to (b) Consolidated Net Interest Expense, in each case
for any period of four consecutive Fiscal Quarters ending on any date
during any period set forth below, to be less than the ratio set forth
below opposite such period:
11
- --------------------------------------------------------------------------------
Period Ratio
- --------------------------------------------------------------------------------
June 30, 2001 through March 30, 2002 1.65 to 1.00
- --------------------------------------------------------------------------------
March 31, 2002 through March 30, 2003 1.70 to 1.00
- --------------------------------------------------------------------------------
March 31, 2003 and thereafter 1.75 to 1.00
- --------------------------------------------------------------------------------
(i) Leverage Ratio.
---------------
Not permit the Leverage Ratio as of any date during any period set
forth below to exceed the ratio set forth opposite such period:
- --------------------------------------------------------------------------------
Period Ratio
- --------------------------------------------------------------------------------
June 30, 2001 through March 30, 2002 6.75 to 1.00
- --------------------------------------------------------------------------------
March 31, 2002 through March 30, 2003 6.25 to 1.00
- --------------------------------------------------------------------------------
March 31, 2003 and thereafter 6.00 to 1.00
- --------------------------------------------------------------------------- ----
(j) Asbestos Payments. Not, and not permit any Subsidiary of the
Parent to, make any Asbestos Payments that would result in the aggregate
amount of Asbestos Payments made in any period of four consecutive Fiscal
Quarters ending prior to the Commitment Termination Date exceeding
$200,000,000 (calculated on a pre-tax basis).
SECTION 7. Payments Free and Clear of Taxes, etc.
------------------------------------------------
(a) Any and all payments by the Parent hereunder shall be made free and
clear of and without deduction for any and all present or future Taxes. If the
Parent or the Agent shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder to any Indemnified Party, (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 7) such Indemnified Party receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Parent or the
Agent shall make such deductions and (iii) the Parent or the Agent shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Parent shall pay any present or future Other Taxes
that arise from any payment made hereunder or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement.
(c) The Parent shall indemnify each Indemnified Party for and hold it
harmless against the full amount of Taxes and Other Taxes (including, without
limitation, taxes of any kind imposed by any jurisdiction on amounts payable
under this Section 7) imposed on or paid by such Indemnified Party and any
liability (including penalties, additions to tax, interest and expenses other
than those incurred as a result of actions by such Indemnified Party
constituting the gross negligence or willful misconduct of such Indemnified
Party except to the extent that such actions shall have been approved by or
directed to be taken by the Parent or any of its Affiliates) arising therefrom
or with respect thereto whether or not such Taxes or 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).
12
(d) Within 30 days after the date of any payment of Taxes or Other Taxes,
the Parent shall furnish to the Agent, at its address referred to in Section 9,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the Parent
hereunder, the agreements and obligations of the Parent contained in this
Section 7 shall survive any termination of the Receivables Agreements.
SECTION 8. Amendments, etc.
--------------------------
No amendment or waiver of any provision of this Agreement or consent to any
departure by the Parent herefrom shall be effective unless in a writing signed
by the Required Purchasers (and, in the case of any amendment, also signed by
the Parent), and then such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 9. Addresses for Notices.
--------------------------------
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, (i) to
the Parent, at its address set forth under its name on the signature page
hereof, (ii) to each Indemnified Party, at its address specified in the
Receivables Purchase Agreement to which it is a party, or (iii) to any party
hereto 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 answerback, respectively.
SECTION 10. No Waiver; Remedies.
-------------------------------
No failure on the part of any Indemnified Party 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. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 11. Continuing Agreement; Assignments under Receivables Purchase
---------------------------------------------------------------------------
Agreement.
---------
This Agreement is a continuing agreement and shall, subject to the
reinstatement provisions contained in Section 2, (a) remain in full force and
effect until the later of (i) the payment and performance in full of the
Obligations and the payment of all other amounts payable under this Agreement
and (ii) the Termination Date, (b) be binding upon the Parent, its successors
and permitted assigns, and (c) inure to the benefit of, and be enforceable by,
the Indemnified Parties and each of their respective successors and permitted
transferees and assigns. Without limiting the generality of clause (c) of the
immediately preceding sentence, (A) any Purchaser or other Owner may assign all
or any of its Receivable Interests under the Receivables Purchase Agreement in
accordance with the terms thereof to any Eligible Assignee, and (B) the Agent
may be replaced pursuant to the provisions of the Receivables Purchase
Agreement, and such Eligible Assignee, or such replacement Agent, shall
thereupon become vested with all the benefits in respect thereof granted to such
Owner, or the Agent, as the case may be, herein or otherwise. The Parent shall
not have the right to assign this Agreement or any or all of its rights or
obligations hereunder or any interest herein to any Person except either (i) in
connection with a merger or consolidation permitted under Section 6(e) or (ii)
with the prior written consent of each Purchaser.
13
SECTION 12. Entire Agreement.
----------------------------
This Agreement and the other Transaction Documents to which the parties
hereto are a 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 13. 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.
SECTION 14. Confidentiality.
---------------------------
Except as otherwise required by applicable law, by their acceptance of this
Agreement the Agent and each Purchaser or other Owner agrees to maintain the
confidentiality of this Agreement (and all drafts thereof) and all non-public
information delivered in connection herewith in communications with third
parties and otherwise; provided that this Agreement and such information may be
disclosed (a) 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 14, (b) to the Agent's and each Purchaser's and
Owner's legal counsel, accountants and auditors if they agree to hold it
confidential, (c) to any nationally recognized rating agency, and (d) pursuant
to court order or subpoena; provided, however, that the disclosure of this
Agreement or other information required to be made by or pursuant to court order
or subpoena will not be made until Parent has 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.
SECTION 15. Governing Law; Jurisdiction; Waiver of Jury Trial, etc.
------------------------------------------------------------------
(a) This Agreement shall be governed by,and construed in accordance with,
the laws of the State of New York.
(b) The Parent 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 or is to be a party, or for recognition or enforcement of any judgment,
and the Parent 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.
The Parent 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 or any other
Transaction Document shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Agreement or any other
Transaction Document in the courts of any jurisdiction.
14
(c) The Parent 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 or is to be a party in any New York State court or United States
federal court sitting in New York City. The Parent hereby irrevocably waives, to
the fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such suit, action or proceeding in any such court.
(d) THE PARENT HEREBY 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 ANY OF THE TRANSACTION DOCUMENTS, THE
PURCHASES OR THE ACTIONS OF ANY INDEMNIFIED PARTY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
15
IN WITNESS WHEREOF, the Parent has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
CROWN CORK & SEAL COMPANY, INC.
By: /s/ Alan W. Rutherford
------------------------------
Name: Alan W. Rutherford
Title: Executive Vice President
and Chief Financial Officer
One Crown Way
Philadelphia, PA 19154
Attention: Michael B. Burns,
Vice President and Treasurer
Telephone No.: ( 215) 698-5036
Telecopier No.: (215) 676-6011
EXHIBIT A
to
Undertaking Agreement
Certain Defined Terms
---------------------
As used in this Agreement, 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):
"Asbestos Payment" means any cash payment actually made by or on behalf of
-----------------
the Parent or any Subsidiary in respect of any liability related to asbestos or
any claim, action or proceeding related to asbestos (including any settlement of
any thereof and excluding any payments relating to the defense or administration
of asbestos-related claims, including, without limitation, the fees of counsel,
consultants and experts).
"Capital Lease Obligations" means all monetary obligations of the Parent
--------------------------
and its Subsidiaries under any leasing or similar arrangement conveying the
right to use real or personal property, or a combination thereof, which, in
accordance with GAAP, would be classified and accounted for as capital leases,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP and the stated maturity thereof shall be the
date of the last payment of rent or any other amount due under such lease prior
to the first date on which such lease may be terminated by the lessee without
payment of a penalty.
"Consolidated EBITDA" means, for any period, Consolidated Net Income for
--------------------
such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Net
Interest Expense for such period, (ii) consolidated income, franchise, personal
property and other tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) charges for financial
statement asbestos reserve increases, (v) any Non-Cash Charges for such period
and (vi) for any period that includes the fiscal quarter ended December 31,
2000, the non-cash bad debts-related charges for such quarter in the approximate
amount of $35,000,000 (pre-tax), and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, any extraordinary
gains for such period and any gains realized in connection with the sale of any
material assets outside the ordinary course of business during such period, all
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income or loss of
-----------------------
the Parent and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded the income
or loss of any person accrued prior to the date it becomes a Subsidiary or is
merged into or consolidated with the Parent or any Subsidiary or the date that
such person's assets are acquired by the Parent or any Subsidiary.
"Consolidated Net Interest Expense" means, for any period, (a) the sum of
----------------------------------
(i) the interest expense (including imputed interest expense in respect of
Capital Lease Obligations) of the Parent and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, plus (ii) any
interest accrued during such period in respect of Indebtedness of the Parent or
any of its Subsidiaries that is required to be capitalized rather than included
in consolidated interest expense for such period in accordance with GAAP, minus
(b) the amount of interest income received by the Parent and its Subsidiaries
for such period.
"Fiscal Quarter" shall mean any quarter of a Fiscal Year.
--------------
"Fiscal Year" shall mean any period of twelve consecutive calendar months
-----------
ending on December 31.
"Indebtedness" of any person means, without duplication, (a) all
------------
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such person
upon which interest charges are customarily paid (excluding obligations to pay
salary or benefits under deferred compensation or other benefit programs), (d)
all obligations of such person under conditional sale or other title retention
agreements relating to property acquired by such person, (e) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness (excluding prepaid interest thereon) of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on property owned or
acquired by such Person, whether or not the Indebtedness secured thereby has
been assumed, (g) all guarantees by such person of Indebtedness of others, (h)
all Capital Lease Obligations of such person, (i) all obligations, contingent or
otherwise, of such person as an account party in respect of letters of credit
and letters of guaranty and (j) all obligations, contingent or otherwise, of
such person in respect of bankers' acceptances; provided, however, that the term
"Indebtedness" shall not include indebtedness incurred by a special purpose,
wholly owned Subsidiary of such Person that purchases accounts receivable from
such Person and its other Subsidiaries to the extent that such indebtedness is
nonrecourse to such Person and each other such Subsidiary and is not required
under GAAP to be reflected on the consolidated balance sheet of the Parent. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent that such Person is directly liable therefor as a result of such Person's
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor.
"Leverage Ratio" means, on any date, the ratio of (a) Total Indebtedness as
--------------
of such date to (b) Consolidated EBITDA for the period of four consecutive
Fiscal Quarters of the Parent ended on such date (or, if such date is not the
last day of a Fiscal Quarter, ended on the last day of the Fiscal Quarter most
recently ended prior to such date); provided that for purposes of this
definition, if the Parent or any of its Subsidiaries has sold, transferred,
leased or otherwise disposed of assets pursuant to Section 6.05(f) of the
Existing Credit Facilities, during the relevant period for determining
Consolidated EBITDA, (x) Consolidated EBITDA for the relevant period shall be
calculated after giving pro forma effect thereto, as if any such sale, transfer,
lease or other disposition of assets (and any related incurrence, repayment or
assumption of Indebtedness, with any new Indebtedness being deemed to be
amortized over the relevant period in accordance with its terms) had occurred on
the first day or the relevant period for determining Consolidated EBITDA, and
(y) Total Indebtedness shall be calculated after giving effect to the
application of any Net Cash Proceeds (as defined in the Existing Credit
Facilities) from such sale, transfer, lease or other disposition of assets
pursuant to Section 2.05 of the Existing Credit Facilities. Any such pro forma
calculations may include operating and other expense reductions and other
synergistic benefits for such period resulting from any transaction that is
being given pro forma effect to the extent that such operating and other expense
reductions and other synergistic benefits would be permitted pursuant to Article
XI of Regulation S-X under the Securities Act of 1933, as amended.
2
"Non-Cash Charges" means charges that (a) do not represent cash payments
-----------------
made or to be made by the Parent or any Subsidiary prior to the Commitment
Termination Date (whether in the period incurred or any future period),
including, but not limited to minority interest net of equity earnings, losses
realized upon the sale of any assets outside the ordinary course of business and
extraordinary losses, and (b) do not involve the write-down or write-off of any
accounts receivable or inventory unless related to an extraordinary item.
"Subsidiary" means with respect to any Person, (i) any corporation of which
----------
more than 50% of the outstanding capital stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person, (ii) any partnership of which more than 50%
of the outstanding partnership interests having the power to act as a general
partner of such partnership (irrespective of whether at the time any partnership
interests other than general partnership interests of such partnership shall or
might have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of such
person; provided that with respect to partnerships in which the Parent directly
or indirectly owns a partnership interest, such partnership shall not be deemed
to be a Subsidiary of the Parent unless such partnership's primary assets
consist of the capital stock of corporate Subsidiaries of the Parent or (iii)
any other legal entity the accounts of which would be consolidated with those of
such Person on a consolidated balance sheet of such person prepared in
accordance with GAAP. Unless otherwise indicated, when used in this Agreement,
the term "Subsidiary" shall refer to a Subsidiary of the Parent.
"Total Indebtedness" means, as of any date, the sum of (a) the aggregate
-------------------
principal amount of Indebtedness of the Parent and the Subsidiaries outstanding
as of such date, in the amount that would be reflected on a balance sheet
prepared as of such date on a consolidated basis in accordance with GAAP, plus
(b) the aggregate principal amount of Indebtedness of the Parent and the
Subsidiaries outstanding as of such date that is not required to be reflected on
a balance sheet in accordance with GAAP, determined on a consolidated basis;
provided, that (x) for purposes of clause (b) above, the term "Indebtedness"
shall not include contingent obligations of the Parent or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness and (y) shall only include any Indebtedness recorded in
accordance with SFAS 133 which does not represent an actual obligation and for
which an offsetting derivative contract has been recorded in the financial
statements to the extent such Indebtedness exceeds $50,000,000.
3
EXHIBIT B
to
Undertaking Agreement
FORM OF COMPLIANCE CERTIFICATE
To: Citibank, N.A.,
as Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
Attention:
----------------------
Crown Cork & Seal Company, Inc.
------------------------------
Ladies and Gentlemen:
This Compliance Certificate is being delivered pursuant to Section 6 (d)(x)
of the Undertaking Agreement dated as of January 26, 2001 as amended and
restated as of May 7, 2001 (the "Parent Undertaking") made by Crown Cork & Seal
Company, Inc. (the "Parent") in favor of the Purchasers as defined in the
Receivables Purchase Agreement (as defined in the Parent Undertaking) and
Citibank, N.A., as administrative agent (the "Agent") for the Purchasers and the
other Owners. Unless otherwise defined herein, terms defined in the Parent
Undertaking Agreement or the Receivables Purchase Agreement (as defined in the
Parent Undertaking) are used herein as therein defined.
The Parent hereby certifies, represents and warrants that as of , (the
1
"Computation Date"):
----------------
(a) The Leverage Ratio was __:__, as computed on Attachments 1 and 3 hereto
and such amount [complies] [does not comply] with the provisions of Section 6(i)
of the Parent Undertaking; and
(b) The Interest Expense Coverage Ratio was __:__, as computed on
Attachments 2 and 3 hereto and such amount [complies] [does not comply] with the
provisions of Section 6(h) of the Parent Undertaking; and
(c) No Potential Event of Termination or Event of Termination has occurred
and is continuing [other than as follows:]
- ------------------------
1
Computation Date should be date of most recent financial statements delivered
under Section 6(d)(i) or (ii) of the Parent Undertaking.
1
IN WITNESS WHEREOF, the Parent has caused this Compliance Certificate to be
executed and delivered by its duly authorized officer on the _____ day of
__________,
CROWN CORK & SEAL COMPANY, INC.
By:
------------------------------
Name:
Title:
2
ATTACHMENT 1
1. Leverage Ratio:
A. "Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Parent and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a balance
sheet prepared as of such date on a consolidated basis in accordance with GAAP,
plus (b) the aggregate principal amount of Indebtedness of the Parent and the
Subsidiaries outstanding as of such date that is not required to be reflected on
a balance sheet in accordance with GAAP, determined on a consolidated basis;
provided, that (x) for purposes of clause (b) above, the term "Indebtedness"
shall not include contingent obligations of the Parent or any Subsidiary as an
account party in respect of any letter of credit or letter of guaranty unless
such letter of credit or letter of guaranty supports an obligation that
constitutes Indebtedness and (y) shall only include any Indebtedness recorded in
accordance with SFAS 133 which does not represent an actual obligation and for
which an offsetting derivative contract has been recorded in the financial
statements to the extent such Indebtedness exceeds $50,000,000.
B. "Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Net
Interest Expense for such period, (ii) consolidated income, franchise, personal
property and other tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) charges for financial
statement asbestos reserve increases, (v) any Non-Cash Charges for such period
and (vi) for any period that includes the fiscal quarter ended December 31,
2000, the non-cash bad debts-related charges for such quarter in the approximate
amount of $35,000,000 (pre-tax), and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, any extraordinary
gains for such period and any gains realized in connection with the sale of any
material assets outside the ordinary course of business during such period, all
determined on a consolidated basis in accordance with GAAP.
C. LEVERAGE RATIO: The ratio of Item 1.A to Item 1.B.
--------------
ATTACHMENT 2
2. Interest Expense Coverage Ratio*:
A. "Consolidated EBITDA" means, for any period, Consolidated Net Income
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Net
Interest Expense for such period, (ii) consolidated income, franchise, personal
property and other tax expense for such period, (iii) all amounts attributable
to depreciation and amortization for such period, (iv) charges for financial
statement asbestos reserve increases, (v) any Non-Cash Charges for such period
and (vi) for any period that includes the fiscal quarter ended December 31,
2000, the non-cash bad debts-related charges for such quarter in the approximate
amount of $35,000,000 (pre-tax), and minus (b) without duplication and to the
extent included in determining such Consolidated Net Income, any extraordinary
gains for such period and any gains realized in connection with the sale of any
material assets outside the ordinary course of business during such period, all
determined on a consolidated basis in accordance with GAAP.
B. "Consolidated Net Interest Expense" means, for any period, (a) the
sum of (i) the interest expense (including imputed interest expense in respect
of Capital Lease Obligations) of the Parent and the Subsidiaries for such
period, determined on a consolidated basis in accordance with GAAP, plus (ii)
any interest accrued during such period in respect of Indebtedness of the Parent
or any of its Subsidiaries that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance with
GAAP, minus (b) the amount of interest income received by the Parent and its
Subsidiaries for such period.
C. INTEREST COVERAGE RATIO: The ratio of Item 2.A to Item 2.B.
----------------------- -------- --------
ATTACHMENT 3
Detailed Calculations
LEVERAGE RATIO:
A. "Total Indebtedness" =
------------------
B. "Consolidated EBITDA" =
-------------------
INTEREST EXPENSE COVERAGE RATIO:
A. "Consolidated EBITDA" =
-------------------
B. "Consolidated Net Interest Expense" =
---------------------------------
EXHIBIT J
NOTICE OF PURCHASE
Dated as of __________, 20[ ]
Citibank, N.A.,
as Agent
388 Greenwich Street, 19th Floor
New York, New York 10013
Attention: ____________________
Ladies and Gentlemen:
The undersigned, Crown Cork & Seal Receivables (DE)
Corporation, refers to the Receivables Purchase Agreement dated as of January
26, 2001, as amended and restated as of May 7, 2001 (as amended, amended and
restated, supplemented or otherwise modified from time to time, the "Receivables
Purchase Agreement"), among the undersigned as the Seller, CROWN CORK & SEAL
COMPANY (USA), INC., as the Servicer, the banks and other financial institutions
party thereto as Purchasers thereunder and CITIBANK, N.A., as administrative
agent (the "Agent") for the Purchasers and the other Owners. Unless otherwise
defined herein, terms defined in the Receivables Purchase Agreement are used
herein as therein defined.
The undersigned hereby gives you notice, irrevocably, pursuant
to Section 2.02 of the Receivables Purchase Agreement that the undersigned
hereby requests a Purchase of Receivable Interests under the Receivables
Purchase Agreement, and in that connection sets forth below the information
relating to such Purchase of Receivable Interests (the "Proposed Purchase") as
required by Section 2.02(a) of the Receivables Purchase Agreement:
(i) The requested aggregate amount of such Proposed Purchase is $________.
(ii) The requested Business Day of such Proposed Purchase is
_________ __, 20[ ].
(iii) The Proposed Purchase shall initially bear Yield based on the
[Eurodollar Rate] [Base Rate].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Purchase:
(A) the representations and warranties contained in Section
4.01 of the Receivables Purchase Agreement, in Section 3.01 of the Contribution
and Sale Agreement and in Section 5 of the Parent Undertaking are correct in all
material respects on and as of the date hereof, before and after giving effect
to the Proposed Purchase and to the application of the proceeds therefrom, as
though made on and as of the date hereof, other than any such representations
and warranties that, by their terms, refer to a specific date other than the
date hereof, in which case as of such dates; and
(B) no event has occurred and is continuing, or would result
from the Proposed Purchase or from the application of the proceeds therefrom,
which constitutes an Event of Termination or a Potential Event of Termination.
Delivery of an executed counterpart of this Notice of Purchase
by telecopier shall be effective as delivery of an original executed counterpart
of this Notice of Purchase.
Very truly yours,
Crown Cork & Seal Receivables (DE) Corporation
By: -----------------------------------
Title: