Exhibit 10.1
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
Dated as of December 1, 1995
Among
CROWN CORK & SEAL COMPANY, INC.,
THE SUBSIDIARY BORROWERS REFERRED TO HEREIN,
THE LENDERS REFERRED TO HEREIN
and
CHEMICAL BANK,
as Arranger and Administrative Agent
and
CREDIT SUISSE and SOCIETE GENERALE
as Arrangers and Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS...................................................................... 1
SECTION 1.01. Defined Terms............................................................ 1
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SECTION 1.02. Terms Generally.......................................................... 31
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ARTICLE II. THE CREDITS..................................................................... 32
SECTION 2.01. Credit Commitments....................................................... 32
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SECTION 2.02. Procedure for Revolving Credit Borrowing................................. 33
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SECTION 2.03. Conversion and Continuation Options for Loans............................ 35
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SECTION 2.04. Prepayments of Loans..................................................... 36
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SECTION 2.05. Repayment of Loans; Evidence of Debt..................................... 37
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SECTION 2.06. Interest Rates and Payment Dates......................................... 38
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SECTION 2.07. Computation of Interest.................................................. 40
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SECTION 2.08. Fees..................................................................... 40
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SECTION 2.09. Termination or Reduction of Credit Commitments........................... 41
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SECTION 2.10. Inability to Determine Interest Rate; Unavailability of Deposits;
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Inadequacy of Interest Rate........................................................ 42
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SECTION 2.11. Pro Rata Treatment and Payments.......................................... 46
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SECTION 2.12. Illegality............................................................... 47
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SECTION 2.13. Requirements of Law...................................................... 48
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SECTION 2.14. Taxes.................................................................... 50
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SECTION 2.15. Indemnity................................................................ 53
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SECTION 2.16. Change of Lending Office................................................. 53
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SECTION 2.17. Sharing of Setoffs....................................................... 54
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SECTION 2.18. Assignment of Commitments Under Certain Circumstances.................... 55
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ARTICLE III. REPRESENTATIONS AND WARRANTIES................................................. 56
SECTION 3.01. Organization, etc........................................................ 56
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SECTION 3.02. Due Authorization, Non-Contravention, etc................................ 56
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SECTION 3.03. Government Approval, Regulation, etc..................................... 56
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SECTION 3.04. Validity, etc............................................................ 57
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SECTION 3.05. Financial Information.................................................... 57
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SECTION 3.06. No Material Adverse Change............................................... 57
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SECTION 3.07. Litigation, Labor Controversies, etc..................................... 57
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SECTION 3.08. Subsidiaries............................................................. 58
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SECTION 3.09. Ownership of Properties.................................................. 58
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SECTION 3.10. Taxes.................................................................... 58
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SECTION 3.11. Pension and Welfare Plans................................................ 58
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SECTION 3.12. Environmental Warranties................................................. 59
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SECTION 3.13. Regulations G, U and X................................................... 60
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SECTION 3.14. Accuracy of Information.................................................. 60
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ARTICLE IV. CONDITIONS OF LENDING........................................................... 61
SECTION 4.01. Conditions to Effectiveness.............................................. 61
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SECTION 4.02. Conditions to Each Loan Other Than an Exchange Offer Loan................ 62
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SECTION 4.03. Conditions to Each Exchange Offer Loan................................... 64
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SECTION 4.04. Exchange Offer Borrowings in Escrow...................................... 66
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ARTICLE V. AFFIRMATIVE COVENANTS............................................................ 67
SECTION 5.01. Financial Information, Reports, Notices, etc............................. 67
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SECTION 5.02. Compliance with Laws, etc................................................ 69
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SECTION 5.03. Maintenance of Properties................................................ 69
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SECTION 5.04. Insurance................................................................ 70
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SECTION 5.05. Books and Records........................................................ 70
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SECTION 5.06. Environmental Covenant................................................... 71
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SECTION 5.07. Significant Subsidiaries................................................. 72
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SECTION 5.08. Exchange Offer........................................................... 72
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SECTION 5.09. Use of Proceeds.......................................................... 72
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ARTICLE VI. NEGATIVE COVENANTS.............................................................. 72
SECTION 6.01. Transactions with Affiliates............................................. 72
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SECTION 6.02. Indebtedness............................................................. 73
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SECTION 6.03. Liens.................................................................... 75
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SECTION 6.04. Financial Condition...................................................... 77
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SECTION 6.05. Consolidation, Merger, etc............................................... 77
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SECTION 6.06. Restrictive Agreements................................................... 78
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ARTICLE VII. EVENTS OF DEFAULT.............................................................. 78
SECTION 7.01. Listing of Events of Default............................................. 78
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SECTION 7.02. Action if Bankruptcy..................................................... 82
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SECTION 7.03. Action if Other Event of Default......................................... 82
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SECTION 7.04. Action if Event of Termination........................................... 82
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ARTICLE VIII. THE ADMINISTRATIVE AGENT...................................................... 83
ARTICLE IX. GUARANTEE....................................................................... 86
SECTION 9.01. Guarantee................................................................ 86
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SECTION 9.02. Amendments, etc. with respect to the Subsidiary Borrower Obligations..... 87
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SECTION 9.03. Guarantee Absolute and Unconditional..................................... 87
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SECTION 9.04. Reinstatement............................................................ 89
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SECTION 9.05. Payments................................................................. 89
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SECTION 9.06. Independent Obligations.................................................. 89
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ARTICLE X. MISCELLANEOUS.................................................................... 91
SECTION 10.01. Notices................................................................. 91
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SECTION 10.02. Survival of Agreement................................................... 92
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SECTION 10.03. Binding Effect.......................................................... 92
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SECTION 10.04. Successors and Assigns.................................................. 92
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SECTION 10.05. Expenses; Indemnity..................................................... 97
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SECTION 10.06. Right of Setoff......................................................... 99
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SECTION 10.07. Applicable Law.......................................................... 99
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SECTION 10.08. Waivers; Amendment...................................................... 99
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SECTION 10.09. Interest Rate Limitation................................................ 100
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SECTION 10.10. Entire Agreement........................................................ 101
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SECTION 10.11. WAIVER OF JURY TRIAL.................................................... 101
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SECTION 10.12. Severability............................................................ 101
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SECTION 10.13. Counterparts............................................................ 102
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SECTION 10.14. Headings................................................................ 102
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SECTION 10.15. Jurisdiction; Consent to Service of Process............................. 102
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SECTION 10.16. Judgments Relating to Subsidiary Borrowers.............................. 103
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EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Significant Subsidiary Election
Notice
EXHIBIT D Subsidiary Borrower Notice and Designation
EXHIBIT E Form of Subsidiary Borrower Closing
Certificate
EXHIBIT F Form of Opinion of Dechert, Price & Xxxxxx
EXHIBIT G Form of Opinion of
Xxxxxxx X. Xxxxxxxxxxx, Esq.
EXHIBIT H Form of Compliance Certificate
EXHIBIT I Calculation of MLA Costs
EXHIBIT J Form of Note
SCHEDULE 2.01 Lenders and Commitments
SCHEDULE 3.08 Subsidiaries
SCHEDULE 3.11 Post-Retirement Benefits
SCHEDULE 6.02 Indebtedness
REVOLVING CREDIT AND TERM LOAN AGREEMENT dated as of
December 1, 1995, among CROWN CORK & SEAL COMPANY, INC., a
Pennsylvania corporation ("CCSC"); each of the Subsidiary
Borrowers referred to herein (the Subsidiary Borrowers and CCSC
being collectively called the "Borrowers"); the financial
institutions listed on Schedule 2.01 (the "Lenders"); CHEMICAL
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BANK, a New York banking corporation, as arranger and
administrative agent (in such capacity, the "Administrative
Agent") for the Lenders (Chemical Investment Bank Limited acting
for Eurocurrency Loans); and CREDIT SUISSE ("Credit Suisse") and
SOCIETE GENERALE ("Societe Generale"), as Arrangers and
Documentation Agents.
The Borrowers have requested the Lenders to extend credit in the form
of Revolving Loans (such term and each other capitalized term used but not
defined herein having the meaning given to it in Article I) at any time and from
time to time prior to the Commitment Termination Date, in an aggregate principal
amount at any time outstanding not in excess of 13,700,000,000 French Francs or
its equivalent in an Alternative Currency. On the Commitment Termination Date,
any Revolving Loans outstanding under this Credit Agreement will convert to Term
Loans to be repaid in full on the Maturity Date. The proceeds of the Loans are
to be used for the CMB Acquisition, to repurchase shares of the capital stock of
CCSC and, following the CMB Acquisition, for general corporate purposes.
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The Lenders are willing to extend such credit to the Borrowers on the
terms and subject to the conditions set forth herein. Accordingly, the parties
hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
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following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
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"ABR Loan" shall mean any Loan denominated in Dollars and bearing
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interest at the Alternate Base Rate in accordance with the provisions of Article
II.
"Administrative Agent Fees" shall have the meaning assigned to such
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term in Section 2.08.
"Administrative Questionnaire" shall mean an Administrative
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Questionnaire in the form of Exhibit A.
"Affiliate" of any Person means any other Person which, directly or
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indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 25% or more of the securities (on a fully diluted basis)
having ordinary voting power for the election of directors or managing
general partners; or
(b) to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise;
provided, however, that notwithstanding the foregoing, for purposes of Section
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10.04, an "Affiliate" shall be a Person
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engaged in the business of banking who is controlled by, or under common control
with, a Lender.
"Aggregate Credit Exposure" shall mean the aggregate amount of the
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Lenders' Credit Exposures.
"Agreement Currency" shall have the meaning assigned to such term in
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Section 10.16(b).
"Alternate Base Rate" shall mean, for any day, a rate per annum
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(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. If for any reason the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest error) after using its
good faith efforts that it is unable to ascertain the Base CD Rate or the
Federal Funds Effective Rate or both for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient quotations in
accordance with the terms hereof, the Alternate Base Rate shall be determined
without regard to clause (b) or (c), or both, of the preceding sentence, as
appropriate, until the circumstances giving rise to such inability or failure no
longer exist. Any change in the Alternate Base Rate due to a change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the Base CD
Rate or the Federal Funds Effective Rate, respectively.
"Alternative Currency" shall mean Dollars and British Pounds Sterling.
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"Alternative Currency Borrowing" shall mean a Borrowing comprised in
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whole or in part of Alternative Currency Loans.
"Alternative Currency Equivalent" shall mean, with respect to an
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amount in French Francs on any date in relation to a specified Alternative
Currency, the amount of such specified Alternative Currency that may be
purchased with such amount of French Francs at the Spot Exchange Rate with
respect to French
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Francs on such Date. The term "Alternative Currency Equivalent" may be preceded
by a reference to an Alternative Currency (e.g., "Dollar Alternative Currency
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Equivalent"), in which case the Alternative Currency so referenced shall be the
"specified Alternative Currency".
"Alternative Currency Loan" shall mean any Loan denominated in an
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Alternative Currency.
"Alternative Dollar Loan" shall have the meaning assigned to such term
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in Section 2.10(b).
"Another Currency" shall have the meaning assigned to such term in
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Section 2.10(a).
"Applicable Creditor" shall have the meaning assigned to such term in
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Section 10.16(b).
"Applicable Currency" shall have the meaning assigned to such term in
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Section 2.10(a).
"Applicable Percentage" shall mean (i) with respect to the Facility
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Fees, the applicable percentage set forth below under the caption "Fee
Percentage" and (ii) with respect to any Eurocurrency Loan, the applicable
percentage set forth below under the caption "Eurocurrency Spread", in each case
based upon the ratings by S&P and Xxxxx'x, respectively, applicable on such date
to the Index Debt:
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Eurocurrency Fee
Spread Percentage
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Category 1
---------- .1000% .0500%
S&P: A or better
Xxxxx'x: A2 or better
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Category 2
---------- .1250% .0700%
S&P: A- to BBB
Xxxxx'x: A3 to Baa2
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Category 3
---------- .1750% .1250%
S&P: BBB- or below
Xxxxx'x: Baa3 or below
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For purposes of the foregoing, (i) if either Xxxxx'x or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating in Category 3; (ii)
if the ratings established or deemed to have been established by Xxxxx'x and S&P
for the Index Debt shall fall within different Categories, the Applicable
Percentage shall be based on the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by Xxxxx'x and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of Xxxxx'x or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency. Each change in
the Applicable Percentage shall apply during the period commencing on the
effective date of such change and ending on the date immediately preceding the
effective date of the next such change. If the rating system of Xxxxx'x or S&P
shall change, or if either such rating agency shall cease to be in the business
of rating corporate debt obligations, or if the Index Debt shall be unrated by
Xxxxx'x or S&P as a result of a reasonable business decision of CCSC, CCSC and
the Lenders shall negotiate in good faith to amend this definition to reflect
such changed rating system or the non-availability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable
Percentage most recently in effect shall continue in effect.
"Assessment Rate" shall mean, for any date, the annual rate (rounded
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upwards, if necessary, to the next 1/100 of 1%) determined by the Administrative
Agent to be the then current net annual assessment rate to be payable by the
Administrative Agent to the Federal Deposit Insurance Corporation (or any
successor) for insurance by such Corporation (or such successor) of time
deposits made in dollars at the Administrative Agent's domestic offices.
"Assigned French Franc Value" shall have the meaning assigned to such
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term in Section 2.02(c).
"Assignment and Acceptance" shall mean an assignment and acceptance
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entered into by a Lender and an assignee, and
accepted by the Administrative Agent, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.
"Authorized Officer" shall mean, with respect to CCSC, those of its
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officers whose signature and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 4.01(c) or any
successor thereto.
"Available Credit Commitment" shall mean as to any Lender, at any time
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of determination, an amount equal to such Lender's Credit Commitment at such
time minus such Lender's Credit Exposure at such time.
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"Base CD Rate" shall mean the sum of (a) the product of (i) the Three-
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Month Secondary CD Rate and (ii) a fraction, the numerator of which is one and
the denominator of which is one minus the Statutory Reserve Percentage and (b)
the Assessment Rate.
"Board" shall mean the Board of Governors of the Federal Reserve
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System of the United States.
"Borrowing" shall mean a Loan or group of Loans of a single Type and
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denominated in a single currency (except as provided in Section 2.10(b)) made
(including through a conversion or continuation) by the Lenders on a single date
and as to which a single Interest Period is in effect.
"Borrowing Date" shall mean any Business Day specified in a notice
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pursuant to Section 2.02 as a date on which the relevant Borrower requests Loans
to be made hereunder.
"Borrowing Request" shall have the meaning assigned to such term in
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Section 2.02(a).
"British Pounds Sterling" shall mean lawful money of the United
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Kingdom.
"British Pounds Sterling Equivalent" shall mean, with respect to
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French Francs or Dollars, on any date, the amount of
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accepted by the Administrative Agent, in the form of Exhibit B of such other
form as shall be approved by the Administrative Agent.
"Authorized Officer" shall mean, with respect to CCSC, those of its
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officers whose signature and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 4.01(c) or any
successor thereto.
"Available Credit Commitment" shall mean as to any Lender, at any time
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of determination, an amount equal to such Lender's Credit Commitment at such
time minus such Lender's Credit Exposure at such time.
"Base CD Rate" shall mean the sum of (a) the product of (i) the
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Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which is one
and the denominator of which is one minus the Statutory Reserve Percentage and
(b) the Assessment Rate.
"Board" shall mean the Board of Governors of the Federal Reserve
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System of the United States.
"Borrowing" shall mean a Loan or group of Loans of a single Type and
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denominated in a single currency (except as provided in Section 2.10(b)) made
(including through a conversion or continuation) by the Lenders on a single date
and as to which a single Interest Period is in effect.
"Borrowing Date" shall mean any Business Day specified in a notice
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pursuant to Section 2.02 as a date on which the relevant Borrower requests Loans
tobe made hereunder.
"Borrowing Request" shall have the meaning assigned to such term in
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Section 2.02(a).
"British Pounds Sterling" shall mean lawful money of the United
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Kingdom.
"British Pounds Sterling Equivalent" shall mean, with respect to
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French Francs or Dollars, on any date, the amount of
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British Pounds Sterling that may be purchased with such amount of French Francs
or Dollars, as the case may be, at the Spot Exchange Rate with respect to such
currency on such date.
"Business Day" shall mean a day other than a Saturday, Sunday or other
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day on which commercial banks in London, England, Paris, France or New York, New
York are authorized or required by law to close.
"Capitalized Lease Liabilities" shall mean all monetary obligations of
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CCSC 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.
"CERCLA" shall mean the Comprehensive Environmental Response,
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Compensation and Liability Act of 1980, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response,
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Compensation and Liability Information System List.
"Change in Control" shall mean the acquisition by any Person, or two
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or more Persons acting in concert, of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended) of (i) more than 50% of the outstanding shares
of voting stock of CCSC or (ii) 30% or more of the total voting power of CCSC (a
"30% Stockholder") followed by any change in the composition of the Board of
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Directors of CCSC, which shall include one or more designees of such 30%
Stockholder, unless any such change in the composition of the Board of Directors
does not result in a majority of the members of the Board of Directors
consisting of designees of such 30% Stockholder.
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"Charges" shall have the meaning assigned to such term in Section
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10.09.
"Closing Date" shall mean the date hereof.
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"Closing Fees" shall have the meaning assigned to such term in Section
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2.08(c).
"CMB" shall mean CarnaudMetalbox S.A., a societe anonyme organized
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under the laws of France.
"CMB Acquisition" shall mean the acquisition pursuant to the Exchange
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Offer of all of the outstanding common stock of CMB.
"CMB Acquisition Grace Period" shall mean a 180 day period commencing
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on the date that the Exchange Offer closes.
"CMB Acquisition Preferred Stock" shall mean CCSC's 4.5% cumulative
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convertible preferred stock, which CCSC will offer holders of CMB's outstanding
common stock in the Exchange Offer.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
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time to time.
"Commitment Letter" shall mean the Commitment Letter dated August 25,
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1995, between CCSC, Chemical Securities Inc. and the Administrative Agent.
"Commitment Percentage" shall mean, with respect to any Lender at any
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time, the percentage of the Total Credit Commitments represented by such
Lender's Credit Commitment.
"Commitment Termination Date" shall mean November 30, 1996.
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"Compliance Certificate" shall mean a certificate of a Financial
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Officer of CCSC substantially in the form of Exhibit H.
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"Contingent Liability" shall mean any agreement, undertaking or
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arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
Indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of deposit or collection), or
guarantees the payment of dividends or other distributions upon the shares of
any other Person. The amount of any Person's obligation under any Contingent
Liability shall (subject to any limitation set forth therein) be deemed to be
the outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby. Notwithstanding the
foregoing, for purposes of this Agreement, "Contingent Liability" shall not
include any liability (i) for which CCSC or any of its Subsidiaries has received
a full and unconditional indemnity or "hold harmless" agreement from another
Person with respect to environmental liabilities associated with real property
purchased by CCSC or such Subsidiary from such Person and (ii) to the extent
supported by a "back-to-back" guaranty delivered in connection with the issuance
of industrial development bonds.
"Control" shall mean the possession, directly or indirectly, of the
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power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "controlling" and "controlled" shall have meanings correlative
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thereto.
"Controlled Group" shall mean all members of a controlled group of
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corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with CCSC,
are treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001 of ERISA.
"Credit Commitment" shall mean, with respect to each Lender, the
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commitment of such Lender until the Commitment Termination Date to make
Revolving Loans hereunder in an aggregate principal amount (with respect to
Alternative Currency
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Loans, as measured by the aggregate Assigned French Franc Value of such Loans)
at any time outstanding not to exceed the amount set forth opposite such
Lender's name on Schedule 2.01, as the same may be reduced from time to time
pursuant to the provisions of this Agreement.
"Credit Commitment Period" shall mean the period from and including
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the date hereof (for purposes of Section 2.08(a) only, from and including
November 13, 1995) to and including the Commitment Termination Date or any
earlier date on which the Credit Commitments to make Revolving Loans pursuant to
Section 2.01 shall terminate as provided herein.
"Credit Event" shall have the meaning assigned to such term in Section
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4.02.
"Credit Exposure" shall mean, with respect to any Lender at any time,
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the sum of (a) the aggregate principal amount at such time of all outstanding
Loans of such Lender denominated in French Francs, plus (b) the Assigned French
Franc Value at such time of the aggregate principal amount of all outstanding
Alternative Currency Loans.
"Crown Developpement SNC" shall mean Crown Developpement SNC, a
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societe en nom collectif organized under the laws of France.
"Currency Equivalent" shall mean the Dollar Equivalent, the French
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Franc Equivalent or the British Pounds Sterling Equivalent, as the case may be,
of the Applicable Currency.
"Default" shall mean any event or condition which upon notice, lapse
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of time or both would constitute an Event of Default.
"Denomination Date" shall mean, in relation to any Alternative
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Currency Borrowing, the date that is three Business Days before the date such
Borrowing is made.
"Dollars" or "$" shall mean lawful money of the United States of
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America.
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"Dollar Equivalent" shall mean, with respect to an amount of any Non-
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Dollar Currency on any date, the amount of Dollars that may be purchased with
such amount of the Non-Dollar Currency at the Spot Exchange Rate with respect to
the Non-Dollar Currency on such date.
"EBIT" shall mean, for any period, the sum for such period of all
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amounts which, in accordance with GAAP, would be included on the consolidated
financial statements of CCSC and its Subsidiaries as
(a) Net Income (excluding any extraordinary gains and losses, and any
net income (or net loss) attributable to the write-up (or write-down, as
the case may be) in value of any assets),
plus
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(b) Net Interest Expense,
plus
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(c) to the extent deducted in determining Net Income, provisions for
income taxes.
"Environment" shall mean ambient air, surface water and groundwater
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(including potable water, navigable water and wetlands), the land surface or
subsurface strata, or as otherwise defined in any Environmental Law.
"Environmental Claim" shall mean any written accusation, allegation,
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notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the existence, or
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the continuation of the existence, of a Release (including sudden or non-sudden,
accidental or non-accidental Releases); (b) exposure to any Hazardous Material;
(c) the presence, use, handling, transportation, storage, treatment or disposal
of any Hazardous Material; or (d) the violation or alleged violation of any
Environmental Law or Environmental Permit.
"Environmental Laws" shall mean any and all applicable treaties, laws,
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rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions,
notices or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, Release or threatened Release
of any Hazardous Material or to health and safety matters.
"Environmental Permit" means any permit, approval, authorization,
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certificate, license, variance, filing or permission required by or from any
Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
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incorporated) that, together with CCSC, is treated as a single employer under
Section 414 of the Code.
"Eurocurrency Borrowing" shall mean a Borrowing comprised of
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Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
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determined by reference to the LIBO Rate or, as the case may be, the PIBO Rate
in accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
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Article VII.
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"Event of Termination" shall mean the occurrence of any event
--------------------
described in Section 7.01 at a time when no Loans or Obligations are
outstanding.
"Exchange Offer" shall mean CCSC's public exchange offer in France
--------------
(Offre Publique d'Echange), pursuant to an Exchange Offer Agreement, dated as of
May 22, 1995, between CCSC and Compagnie Generale d'Industrie et de
Participations, a societe anonyme organized under the laws of France (the
"Exchange Offer Agreement"), for all of CMB's outstanding common stock. CCSC
will offer in the Exchange Offer to each holder of CMB's outstanding common
stock the consideration described in the Exchange Offer Agreement.
"Exchange Offer Cash Payment" shall mean the 225 French Franc cash
---------------------------
payment per share of CMB common stock that CCSC will offer holders of CMB's
outstanding common stock to tender their shares in the Exchange Offer.
"Exchange Offer Commencement Date" means the date the documents
--------------------------------
required to commence the Exchange Offer are filed with French regulatory
authorities.
"Exchange Offer Loans" shall mean Borrowings under this Credit
--------------------
Agreement that are used exclusively to fund the aggregate Exchange Offer Cash
Payments required to be paid pursuant to the Exchange Offer at the closing of
the Exchange Offer.
"Exchange Offer Grace Period" shall mean the 90 day period commencing
---------------------------
on the Exchange Offer Commencement Date, unless such period is extended by the
written agreement of the Required Lenders.
"Existing Agreement" shall mean the US $1,000,000,000 Credit
------------------
Agreement, dated as of February 10, 1995, among CCSC, the Subsidiary Borrowers
named therein, the Lenders named therein, the Administrative Agent as
administrative agent, and Chemical Bank Delaware, as issuing bank, as in effect
on the date hereof.
"Facility Fee" shall have the meaning assigned to such term in Section
------------
2.08.
15
"Federal Funds Effective Rate" shall mean, for any day, the weighted
----------------------------
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by it.
"Fee Letter" shall mean the Fee Letter dated August 25, 1995, between
----------
CCSC and the Administrative Agent.
"Fees" shall mean the Facility Fees, the Administrative Agent Fees and
----
the Closing Fees.
"Financial Officer" of any corporation or partnership shall mean the
-----------------
chief financial officer, principal accounting officer, Treasurer or Controller
of such corporation or partnership.
"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; references to a Fiscal Year with a number
corresponding to any calendar year (e.g. the "1994 Fiscal Year") refer to the
----
Fiscal Year ending on December 31 occurring during such calendar year.
"French Francs" shall mean the lawful money of France.
-------------
"French Franc Equivalent" shall mean, with respect to an amount of any
-----------------------
Alternative Currency on any date, the amount of French Francs that may be
purchased with such amount of the Alternative Currency at the Spot Exchange Rate
with respect to the Alternative Currency on such date.
"Funded Debt" shall mean (a) all Loans and (b) all other Indebtedness
-----------
of CCSC and its Subsidiaries (including,
16
without duplication, Contingent Liabilities relating to such Indebtedness) on a
consolidated basis, which by its terms:
(i) matures or is payable more than one year from the date on
which it was created, or
(ii) matures within one year from the date on which it was
created, but is renewable or extendible under terms such that under
GAAP such Indebtedness would be treated as long-term indebtedness.
"GAAP" shall mean generally accepted accounting principles applied on
----
a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
----------------------
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Hazardous Materials" shall mean all explosive or radioactive
-------------------
substances or wastes, hazardous or toxic substances or wastes, pollutants,
solid, liquid or gaseous wastes, including petroleum or petroleum distillates,
asbestos or asbestos containing materials, polychlorinated biphenyls ("PCBs") or
----
PCB-containing materials or equipment, infectious or medical wastes and all
other substances or wastes of any nature regulated pursuant to any Environmental
Law.
"Impermissible Qualification" shall mean, relative to the opinion or
---------------------------
certification of any independent public accountant as to any financial statement
of CCSC, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of matters
relevant to such financial statement; or
(c) which relates to the treatment or classification of any item in
such financial statement and which, as a condition to its removal, would
require an adjustment to
17
such item the effect of which would be to cause CCSC to be in default of
any of its obligations under Section 5.01.
"Indebtedness" of any Person shall mean, without duplication:
------------
(a) all obligations of such Person for borrowed money, all obligations
of such Person as account party under letters of credit in respect of
borrowed money and all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations of such Person as lessee under leases which have
been or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities;
(c) whether or not so included as liabilities in accordance with GAAP,
all obligations of such Person to pay the deferred purchase price of
property or services (provided, however, that Indebtedness shall not
-------- -------
include open accounts extended by suppliers on normal trade terms in
connection with purchases of goods and services or obligations relating to
employee benefits (including post-retirement medical benefits), pension,
health and life insurance (and other similar benefits) and provided,
--------
further, that for purposes of calculating compliance with the provisions of
-------
Section 6.04(a), Indebtedness shall include obligations to pay the deferred
purchase price of property or services only to the extent that such
obligations are reflected on the consolidated balance sheet of CCSC and its
consolidated Subsidiaries) and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse; provided, however,
-------- -------
that the amount of such indebtedness which is limited in recourse shall be
included in an amount equal to the lesser of (i) the amount of such
Indebtedness or (ii) the amount of the Lien; and
18
(d) all Contingent Liabilities of such Person in respect of any of the
foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership in which such Person is a general partner.
"Index Debt" shall mean the senior, unsecured, non-externally credit
----------
enhanced, long-term indebtedness for borrowed money of CCSC.
"Interest Coverage Ratio" means, for any period of four consecutive
-----------------------
Fiscal Quarters (calculated on the basis of the most recent Fiscal Quarter ended
and the three immediately preceding Fiscal Quarters), the ratio of
(a) EBIT
to
(b) Net Interest Expense for such period.
"Interest Payment Date" shall mean, with respect to any Loan, the last
---------------------
day of the Interest Period applicable to the Borrowing of which such Loan is a
part and, in the case of a Eurocurrency Borrowing with an Interest Period of
more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, the date of any refinancing of
such Borrowing with a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurocurrency Borrowing, the
---------------
period commencing on the date of such Borrowing (including any date on which
such Borrowing shall have been converted from a Borrowing of a different Type)
or on the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and ending on the earliest of (i) (x) in the
case of a Weekly Eurocurrency Borrowing, the corresponding day of the week that
is 1, 2 or 3 weeks thereafter, as the relevant Borrower may elect, or (y) in the
case of any
19
Eurocurrency Borrowing other than a Weekly Eurocurrency Borrowing, the
numerically corresponding day (or, if there is no numerically corresponding day,
on the last day) in the calendar month that is 1, 2, 3, 6 or, if available from
all Lenders, 12 months thereafter, as the relevant Borrower may elect, (ii) the
Maturity Date or (iii) the date such Borrowing is prepaid in accordance with
Section 2.04 or 2.12 or converted in accordance with Section 2.03, and (b) as to
any ABR Borrowing, the period commencing on the date of such Borrowing
(including any date on which such Borrowing shall have been converted from a
Borrowing of a different Type) or on the last day of the immediately preceding
Interest Period applicable to such Borrowing, as the case may be, and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30 or
December 31, (ii) the Maturity Date and (iii) the date such Borrowing is prepaid
in accordance with Section 2.04 or converted in accordance with Section 2.03;
provided, however, that if any Interest Period would end on a day other than a
-------- -------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurocurrency Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Judgment Currency" shall have the meaning assigned to such term in
-----------------
Section 10.16(b).
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
--------------
ratio of
(a) Funded Debt (other than Funded Debt which is nonrecourse to CCSC
and its Subsidiaries and giving effect only to CCSC's or its Subsidiaries'
pro-rata share of consolidated Indebtedness of joint ventures)
to
(b) Long-Term Capitalization.
20
"LIBO Rate" shall mean with respect to any Eurocurrency Borrowing,
---------
other than with respect to a Weekly Eurocurrency Borrowing, bearing interest at
a rate determined by reference to the LIBO Rate in accordance with the
provisions of Article II, for any Interest Period, (a) (i) the interest rate per
annum for deposits for a maturity most nearly comparable to such Interest Period
in the currency in which such Borrowing is denominated which appears on page
3740 or 3750, as applicable, of the Dow Xxxxx Telerate Screen (x) in the case of
a Eurocurrency Borrowing by a U.K. Borrower denominated in British Pounds
Sterling, as of 11:00 a.m., London time, on the first day of such Interest
Period and (y) in the case of any other Eurocurrency Borrowing, as of 11:00
a.m., London time, on the day that is two Business Days prior to the first day
of such Interest Period or (ii), if such a rate does not appear on page 3740 or
3750, as applicable, of the Dow Xxxxx Telerate Screen, an interest rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to the rate
at which deposits in the currency in which such Borrowing is denominated
approximately equal in principal amount to the Loan of the Administrative Agent,
in its capacity as a Lender, included in such Eurocurrency Borrowing and for a
maturity comparable to such Interest Period are offered to the principal London
office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, (x) in the case of a
Eurocurrency Borrowing by a U.K. Borrower denominated in British Pounds
Sterling, on the first day of such Interest Period and (y) in the case of any
other Eurocurrency Borrowing, on the day that is two Business Days prior to the
first day of such Interest Period, multiplied by (b) a fraction, the numerator
of which is one and the denominator of which is one minus the Statutory Reserve
Percentage. LIBO Rate shall mean with respect to any Weekly Eurocurrency
Borrowing bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II, for any Interest Period applicable
to a Weekly Eurocurrency Borrowing, (a) the interest rate per annum determined
by the Administrative Agent to be the arithmetic mean (rounded upwards, if
necessary, to the nearest 1/16 of 1%) of the rates at which deposits in the
currency in which such Borrowing is denominated approximately equal in principal
amount to the Loans of the LIBOR Reference Banks, in their capacities as
21
Lenders, included in such Weekly Eurocurrency Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London offices
of each of the LIBOR Reference Banks in immediately available funds in the
London interbank market (x) in the case of a Weekly Eurocurrency Borrowing by a
U.K. Borrower denominated in British Pounds Sterling, as of 11:00 a.m., London
time, on the first day of such Interest Period and (y) in the case of any other
Weekly Eurocurrency Borrowing, as of 11:00 a.m., London time, on the day that is
two Business Days prior to the first day of such Interest Period, multiplied by
(b) a fraction, the numerator of which is one and the denominator of which is
one minus the Statutory Reserve Percentage.
"LIBOR Reference Banks" means the principal London office of each of
---------------------
the Administrative Agent, Credit Suisse and Societe Generale, or such other
Lender or Lenders as from time to time may be agreed upon between the Borrowers
and the Administrative Agent.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
----
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right of a
third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Fee Letter and each
--------------
Subsidiary Borrowing Notice and Designation.
"Loans" shall mean the Revolving Loans and Term Loans.
-----
"Long-Term Capitalization" shall mean, on any date of determination,
------------------------
the sum of (i) Funded Debt of CCSC and its Subsidiaries on a consolidated basis
and (ii) the amount, determined on a consolidated basis, in the capital stock
account (including the CMB Acquisition Preferred Stock when issued and
outstanding) plus (or minus in the case of a deficit) the additional paid-in
capital and retained earnings of CCSC and its Subsidiaries, and in any event,
net of the value of treasury stock in such capital stock account, plus
accounting liabilities
22
for post-retirement benefits (FAS 106) and post-employment benefits (FAS 112),
net of changes for income tax (FAS 109).
"Material Adverse Effect" shall mean any event which will have a
-----------------------
materially adverse effect on the financial condition or results of operations of
CCSC and its Subsidiaries taken as a whole.
"Maturity Date" shall mean November 30, 1997.
-------------
"Maximum Rate" shall have the meaning assigned to such term in Section
------------
10.09.
"MLA Cost" shall mean the cost imputed to the Lenders in connection
--------
with a Borrowing denominated in British Pounds Sterling in compliance with the
Mandatory Liquid Asset requirements of the Bank of England during an Interest
Period (or part of an Interest Period), expressed as a rate per annum and
determined in accordance with Exhibit I.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
-------
"Multicurrency Borrowing" shall have the meaning assigned to such term
-----------------------
in Section 2.10(b).
"Net Income" means, for any period, the net income of CCSC and its
----------
Subsidiaries for such period on a consolidated basis.
"Net Interest Expense" means, for any period, the aggregate amount of
--------------------
interest expense of CCSC and its Subsidiaries for such period which, in
accordance with GAAP, would be included on the consolidated financial statements
of CCSC and its Subsidiaries, including without limitation the portion of any
rent paid on Capitalized Lease Liabilities which is allocable to interest
expense in accordance with GAAP, minus the amount of interest income received by
-----
CCSC and its Subsidiaries for such period.
"Non-Dollar Currency" shall mean a currency other than Dollars.
-------------------
23
"Non-Dollar Loan" shall mean a Loan denominated in a Non-Dollar
---------------
Currency.
"Obligations" means all obligations (monetary or otherwise) of the
-----------
Borrowers arising under or in connection with this Agreement and each other Loan
Document.
"Organic Document" means, (i) relative to each Borrower that is a
----------------
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
capital stock, and (ii) relative to each Borrower that is a partnership, its
partnership agreement and any other similar arrangements applicable to any
partnership or other equity interests in the Borrower.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
----
and defined in ERISA.
"Pension Plan" shall mean a "pension plan", as such term is defined in
------------
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA) and to which CCSC
or any ERISA Affiliate, may have liability, including any liability by reason of
having been a substantial employer within the meaning of section 4063 of ERISA
at any time during the preceding five years, or by reason of being deemed to be
a contributing sponsor under section 4069 of ERISA.
"Person" shall mean any natural person, corporation, business trust,
------
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"PIBO Rate" shall mean with respect to any Eurocurrency Borrowing
---------
bearing interest at a rate determined by reference to the PIBO Rate in
accordance with the provisions of Article II, for any Interest Period, (a) the
interest rate per annum determined by the Administrative Agent to be the
arithmetic mean (rounded upwards, if necessary, to the nearest 1/16 of 1%) of
the rates at which deposits in the currency in which such Borrowing is
denominated approximately equal in principal amount to the
24
Loans of the PIBOR Reference Banks, in their capacities as Lenders, included in
such Borrowing and for a maturity comparable to such Interest Period are offered
to the principal Paris offices of each of the PIBOR Reference Banks in
immediately available funds in the Paris interbank market at approximately 11:00
a.m., Paris time, on the day that is two Business Days prior to the first day of
such Interest Period multiplied by (b) a fraction, the numerator of which is one
and the denominator of which is one minus the Statutory Reserve Percentage.
"PIBOR Reference Banks" means the principal Paris office of each of
---------------------
the Administrative Agent, Credit Suisse, Societe Generale and Xxxxxx Guaranty
Trust Company of New York, or such other Lender or Lenders as from time to time
may be agreed upon between the Borrowers and the Administrative Agent.
"Plan" shall mean any Pension Plan or Welfare Plan.
----
"Prime Rate" shall mean the rate of interest per annum publicly
----------
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective on the date such change is publicly announced as being
effective.
"Pro Rata Percentage" of any Lender at any time shall mean the
-------------------
percentage of the aggregate Available Credit Commitments represented by such
Lender's Available Credit Commitment.
"Register" shall have the meaning given such term in Section 10.04(d).
--------
"Regulation G" shall mean Regulation G of the Board as from time to
------------
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
------------
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
------------
time in effect and all official rulings and interpretations thereunder or
thereof.
25
"Release" means any spilling, leaking, pumping, pouring, emitting,
-------
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
"Remedial Action" means (a) "remedial action" as such term is defined
---------------
in CERCLA, 42 USC. Section 9601(24), and (b) all other actions required by any
Governmental Authority or voluntarily undertaken to: (i) cleanup, remove, treat,
xxxxx or in any other way address any Hazardous Material in the environment;
(ii) prevent the Release or threat of Release, or minimize the further Release
of any Hazardous Material so it does not migrate or endanger or threaten to
endanger public health, welfare or the environment; or (iii) perform studies and
investigations in connection with, or as a precondition to, (i) or (ii) above.
"Reportable Event" shall mean any reportable event as defined in
----------------
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having Credit
----------------
Commitments representing more than 50% of the sum of all Credit Commitments or,
for purposes of acceleration pursuant to Section 7.03, Lenders having Credit
Exposures representing more than 50% of the aggregate Credit Exposures.
"Requirement of Law: shall mean, as to any Person, any law, treaty,
------------------
rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or assets or to which such Person or any of its property
or assets is subject.
"Responsible Officer" of any corporation or partnership shall mean any
-------------------
executive officer or Financial Officer of such corporation or partnership and
any other officer or similar official thereof responsible for the administration
of the obligations of such corporation or partnership in respect of this
Agreement.
26
"Revaluation Date" shall mean, with respect to an Alternative Currency
----------------
Loan, the last day of each Interest Period with respect to such Loan (and if
such day is not a Business Day, then the day the applicable interest payment
would be due pursuant to the last two sentences of Section 2.11(a)).
"Revolving Loans" shall mean the revolving loans made by the Lenders
---------------
to the Borrowers pursuant to Section 2.01. Each Revolving Loan shall be a
Eurocurrency Loan or an ABR Loan.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
---
XxXxxx-Xxxx, Inc.
"Significant Subsidiary" shall mean each Subsidiary of CCSC that has
----------------------
assets which represent at least 2%, or, during the effectiveness of a
Significant Subsidiary Election Notice, 5% of the consolidated assets of CCSC
and its Subsidiaries as of the last day of the Fiscal Year of CCSC preceding the
date as of which any such determination is made, as reflected on the financial
statements of CCSC, and each Subsidiary of CCSC designated by CCSC as a
Significant Subsidiary pursuant to Section 5.07.
"Significant Subsidiary Election Notice" shall mean a notice delivered
--------------------------------------
by CCSC to the Administrative Agent substantially in the form of Exhibit C.
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
------------------
Alternative Currency in relation to French Francs, the spot rate at which French
Francs are offered on such day for such Alternative Currency which appears on
page FXFX of the Reuters Screen at approximately 11:00 a.m. (London time) (and
if such spot rate is not available on the applicable page of the Reuters Screen,
such spot rate as quoted by Chemical Bank in London at approximately 11:00 a.m.
(London time)), (b) with respect to French Francs in relation to any specified
Alternative Currency, the spot rate at which such specified Alternative Currency
is offered on such day for French Francs which appears on page FXFX of the
Reuters Screen at approximately 11:00 a.m. (London time) (and if such spot rate
is not available on the applicable page of the Reuters Screen, such spot rate as
quoted by Chemical Bank in London at approximately 11:00 a.m. (London
27
time)), (c) with respect to Dollars in relation to any specified Non-Dollar
Currency, the spot rate at which such specified Non-Dollar Currency is offered
on such day for Dollars which appears on page FXFX of the Reuters Screen at
approximately 11:00 a.m. (London time) (and if such spot rate is not available
on the applicable page of the Reuters Screen, such spot rate as quoted by
Chemical Bank in London at approximately 11:00 a.m. (London time)) and (d) with
respect to any Non-Dollar Currency in relation to Dollars, the spot rate at
which Dollars are offered on such day for such Non-Dollar Currency which appears
on page FXFX of the Reuters Screen at approximately 11:00 a.m. (London time)
(and if such spot rate is not available on the applicable page of the Reuters
Screen, such spot rate as quoted by Chemical Bank in London at approximately
11:00 a.m. (London time)). For purposes of determining the Spot Exchange Rate in
connection with an Alternative Currency Borrowing or Non-Dollar Borrowing, such
Spot Exchange Rate shall be determined as of the Denomination Date for such
Borrowing with respect to transactions in the applicable Alternative Currency or
Non-Dollar Currency that will settle on the date of such Borrowing.
"Statutory Reserve Percentage" shall mean, for any day, that
----------------------------
percentage (expressed as a decimal), established by the Board or any successor
Governmental Authority for determining the maximum reserve requirement
(including any marginal, special, emergency or supplemental reserves)(a) with
respect to the Base CD Rate (as such term is used in the definition of the term
"Alternate Base Rate"), for new negotiable nonpersonal time deposits in dollars
of over $100,000 with maturities approximately equal to three months and (b)
with respect to the LIBO Rate or the PIBO Rate, for Eurocurrency Liabilities (as
defined in Regulation D) if applicable due to any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of the Board or any successor
Governmental Authority. Statutory Reserves shall be adjusted automatically on
and as of the effective date of any change in any reserve percentage.
"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
28
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 or (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 with respect to partnerships in which CCSC directly or
indirectly owns a partnership interest, such partnership shall not be deemed to
be a Subsidiary of CCSC unless such partnership's primary assets consist of the
capital stock of corporate Subsidiaries of CCSC. Unless otherwise indicated,
when used in this Agreement, the term "Subsidiary" shall refer to a Subsidiary
of CCSC.
"Subsidiary Borrower" shall mean each Subsidiary (i) which has been
-------------------
designated as such by CCSC in a Subsidiary Borrower Notice and Designation and
(ii) whose designation as a Subsidiary Borrower has not been terminated pursuant
to Section 4.02(d).
"Subsidiary Borrower Notice and Designation" shall mean a notice and
------------------------------------------
designation, substantially in the form of Exhibit D, delivered by CCSC, and
received and consented to by the Administrative Agent, and which shall identify
a Subsidiary Borrower.
"Subsidiary Borrower Obligations" shall mean, with respect to each
-------------------------------
Subsidiary Borrower, the unpaid principal of and interest on (including interest
accruing after the maturity of the Loans made to such Subsidiary Borrower and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
such Subsidiary Borrower, whether or not a claim for post-filing or post-
petition interest is allowed in such proceeding) the Loans made to such
Subsidiary Borrower and
29
all other obligations and liabilities of such Subsidiary Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement or any other
document made, delivered or given in connection herewith, whether on account of
principal, interest, reimbursement obligations, fees, indemnities, costs or
expenses (including, without limitation, all fees, charges and disbursements of
counsel (including the allocated costs of internal counsel) that are required to
be paid by such Subsidiary Borrower to the Administrative Agent or to any Lender
pursuant to this Agreement) or otherwise.
"Taxes" shall have the meaning assigned to such term in Section 2.14
-----
"Term Loans" shall mean all Revolving Loans outstanding on the
----------
Commitment Termination Date and remaining outstanding on any subsequent date of
determination.
"Three-Month Secondary CD Rate" shall mean, for any day, the secondary
-----------------------------
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day shall not be a Business Day, the next preceding
Business Day) by the Board through the public information telephone line of the
Federal Reserve Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical Release H.15(519)
during the week following such day), or, if such rate shall not be so reported
on such day or such next preceding Business Day, the average of the secondary
market quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 a.m., New York City time,
on such day (or, if such day shall not be a Business Day, on the next preceding
Business Day) by the Administrative Agent from three New York City negotiable
certificate of deposit dealers of recognized standing selected by it.
"Total Capitalization" shall mean, on any date of determination, the
--------------------
sum of (i) all Indebtedness of CCSC and its Subsidiaries on a consolidated basis
and (ii) the amount, determined on a consolidated basis, in the capital stock
account (including the CMB Acquisition Preferred Stock when issued and
30
outstanding) plus (or minus in the case of a deficit) the additional paid-in
capital and retained earnings of CCSC and its Subsidiaries, and in any event,
net of the value of treasury stock in such capital stock account, plus
accounting liabilities for post-retirement benefits (FAS 106) and post-
employment benefits (FAS 112) net of changes for income tax (FAS 109).
"Total Credit Commitment" shall mean, at any time, the aggregate
-----------------------
amount of the Credit Commitments, as in effect at such time.
"Transactions" shall mean the execution, delivery and performance by
------------
each Borrower of each of the Loan Documents and the borrowings hereunder.
"Type", when used in respect of any Loan or Borrowing, shall refer to
----
the Rate by reference to which interest on such Loan or on the Loans comprising
such Borrowing is determined. For purposes hereof, "Rate" shall include the
----
LIBO Rate or the PIBO Rate, as the case may be, and the Alternate Base Rate.
"U.K. Borrower" shall mean a Borrower that is a company organized
-------------
under the laws of any of the jurisdictions of the United Kingdom.
"Unrestricted Subsidiary" shall mean any Subsidiary designated as an
-----------------------
Unrestricted Subsidiary by CCSC at the time of delivery of the Compliance
Certificate pursuant to Section 5.01(c) (it being understood that any such
designation may be changed in respect of subsequent Fiscal Quarters) (i) which
is organized under the laws of any foreign country and (ii) the assets of which,
together with the assets of all other Unrestricted Subsidiaries, comprise not
more than 50% of all assets of CCSC and its Subsidiaries.
"Weekly Eurocurrency Borrowing" shall mean a Borrowing comprised of
-----------------------------
Weekly Eurocurrency Loans.
"Weekly Eurocurrency Loan" shall have the meaning specified in Section
------------------------
2.01(c).
"Welfare Plan" means a "welfare plan", as such term is defined in
------------
section 3(1) of ERISA.
31
SECTION 1.02. Terms Generally. The definitions in Section 1.01
----------------
shall apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to,
this Agreement unless the context shall otherwise require. Except as otherwise
expressly provided herein, (a) any reference in this Agreement to any Loan
Document shall mean such document as amended, restated, supplemented or
otherwise modified from time to time and (b) all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
-------- -------
with the covenants contained in Article VI, all accounting terms herein shall be
interpreted and all accounting determinations hereunder shall be made in
accordance with GAAP as in effect on the date of this Agreement and applied on a
basis consistent with the application used in the financial statements referred
to in Section 3.05.
32
ARTICLE II. THE CREDITS
SECTION 2.01. Credit Commitments. (a) Subject to the terms and
-------------------
conditions hereof, each Lender severally agrees to make Revolving Loans in
French Francs or one or more Alternative Currencies to any of CCSC or any
Subsidiary Borrower from time to time during the Credit Commitment Period.
During the Credit Commitment Period each Borrower may use the Credit Commitments
by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
Notwithstanding anything to the contrary contained in this Agreement, in no
event may Revolving Loans be borrowed under this Article II if, after giving
effect thereto (and to any concurrent repayment or prepayment of Loans), the
Aggregate Credit Exposure would exceed the Total Credit Commitment then in
effect. After the Commitment Termination Date, no additional Revolving Loans
will be made to CCSC or any Subsidiary Borrower. All Revolving Loans
outstanding at 5:00 p.m. New York City time on the Commitment Termination Date
shall convert into Term Loans.
(b) The Loans may from time to time be (i) Eurocurrency Loans
denominated in French Francs or an Alternative Currency, (ii) ABR Loans
denominated in Dollars or (iii) a combination thereof, as determined by the
relevant Borrower and notified to the Administrative Agent in accordance with
Sections 2.02 and 2.03, provided that no Loan shall be made as or converted to a
--------
Eurocurrency Loan after the day that is one month prior to the Maturity Date.
(c) A Eurocurrency Loan may have an Interest Period of 1, 2, or 3
weeks (a "Weekly Eurocurrency Loan"); provided that CCSC shall certify to the
------------------------ --------
Administrative Agent that CCSC reasonably believes that such Loan, which is
converted or continued pursuant to Section 2.03, or made pursuant to a Borrowing
Request, will be repaid in full pursuant to Section 2.04 on or before the end of
such Interest Period in connection with (i) a refinancing of the outstanding
balance of such Loan other than pursuant to this Agreement, (ii) the sale of
equity securities of CCSC, the proceeds of which will be used to repay the Loan
pursuant to Section 2.04 or (iii) if such Loan was made in connection with CCSC
financing the Exchange Offer, the reborrowing of the outstanding balance of such
Loan by Crown
33
Developpement SNC, as a Subsidiary Borrower, pursuant to Section 2.01;
SECTION 2.02. Procedure for Revolving Credit Borrowing. (a) Each
-----------------------------------------
Borrower may borrow under the Credit Commitments during the Credit Commitment
Period on any Business Day; provided that such Borrower shall give the
--------
Administrative Agent notice (a "Borrowing Request") (which notice must be
received by the Administrative Agent prior to (a) 11:00 a.m., London time, three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Revolving Loans are to be initially Eurocurrency Loans or (b) 10:00
a.m., New York City time, on the Business Day prior to the requested Borrowing
Date, if all of the requested Revolving Loans are to be initially ABR Loans.
The Borrowing Request for each Borrowing shall specify (i) the amount to be
borrowed as measured in French Francs, (ii) the requested Borrowing Date, (iii)
whether the Borrowing is to be of Eurocurrency Loans or ABR Loans, (iv) if the
Borrowing is to be of Eurocurrency Loans, the length of the initial Interest
Period therefor, (v) if it is an Exchange Offer Loan, (vi) if the Borrowing is
to be a Eurocurrency Borrowing, whether it is to be denominated in either French
Francs or a specified Alternative Currency.
(b) Each Borrowing under the Credit Commitments shall be in a minimum
aggregate principal amount of the lesser of (i) 25,000,000 French Francs or an
integral multiple of 5,000,000 French Francs in excess thereof and (ii) the
aggregate amount of the then Available Credit Commitments. Subject to Section
2.10, Loans specified as denominated in French Francs in the applicable
Borrowing Request shall be made in French Francs and Loans specified as an
Alternative Currency Borrowing shall be made in the Alternative Currency
specified in the applicable Borrowing Request in an aggregate amount equal to
the Alternative Currency Equivalent of the French Franc amount specified in such
Borrowing Request (as determined by the Administrative Agent based upon the
applicable Spot Exchange Rate as of the Denomination Date for such Borrowing
(which determination shall be conclusive absent manifest error)); provided,
--------
however, that for purposes of clauses (i) and (ii) above, each Alternative
-------
Currency Loan shall be deemed to be in a principal amount equal to its Assigned
French Franc Value.
34
(c) With respect to each Alternative Currency Loan, its "Assigned
French Franc Value" shall mean the following:
(i) the French Franc Equivalent thereof (as determined by the
Administrative Agent based upon the applicable Spot Exchange Rate as of the
Denomination Date for such Loan (which determination shall be conclusive
absent manifest error)) unless and until adjusted pursuant to the following
clause (ii), and
(ii) if, as of any Revaluation Date, the French Franc Equivalent of
such Alternative Currency Loan (as determined by the Administrative Agent
based upon the applicable Spot Exchange Rate as of the date that is three
Business Days before such Revaluation Date (which determination shall be
conclusive absent manifest error)) would be at least 5% more, or 5% less,
than the "Assigned French Franc Value" thereof at the time, then on and
after such Revaluation Date the "Assigned French Franc Value" of such Loan
shall be adjusted to be the French Franc Equivalent thereof determined
based on the Spot Exchange Rate that gave rise to such adjustment (subject
to further adjustment in accordance with this clause (ii) thereafter). The
Assigned French Franc Value of an Alternative Currency Borrowing shall
equal the aggregate Assigned French Franc Value of each Alternative
Currency Loan included in such Borrowing plus the aggregate principal
amount of any Loans denominated in French Francs included in such
Borrowing.
(d) Upon receipt of a Borrowing Request from any Borrower, the
Administrative Agent shall promptly notify each Lender of the requested currency
and aggregate amount (in both the requested currency and French Francs) of such
Borrowing and of the amount (in both the requested currency and French Francs)
of such Lender's pro rata portion thereof, which shall be based on the
respective Available Credit Commitments of all the Lenders. Each Lender will
make the amount of its pro rata portion of each such Borrowing available to the
Administrative Agent for the account of the relevant Borrower at (i) in the case
of a Eurocurrency Borrowing, the London office of the Administrative Agent
specified in
35
Section 10.01 prior to 11:00 a.m., London time, and (ii) in the case of an ABR
Borrowing, the New York office of the Administrative Agent specified in Section
10.01 prior to 1:00 p.m., New York City time, on the Borrowing Date requested by
such Borrower in funds immediately available to the Administrative Agent and,
subject to Section 2.10, denominated in the requested currency. Amounts so
received by the Administrative Agent will promptly be made available to the
relevant Borrower by the Administrative Agent crediting the account of such
Borrower on the books of such office with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as
received by the Administrative Agent.
(e) Notwithstanding Section 2.01(a), the aggregate principal amount
of Eurocurrency Loans denominated in French Francs that are made on any single
Borrowing Date may not exceed 2,000,000,000 French Francs; provided that upon
the request of CCSC the Required Lenders may agree in writing to increase the
amount of Eurocurrency Loans made on a specified Borrowing Date that are
denominated in French Francs.
SECTION 2.03. Conversion and Continuation Options for Loans. (a)
----------------------------------------------
Each Borrower may elect from time to time to convert (i) Eurocurrency Loans
denominated in Dollars to ABR Loans, by giving the Administrative Agent prior
notice of such election not later than 10:00 a.m., New York City time, on the
Business Day prior to a requested conversion or (ii) ABR Loans to Eurocurrency
Loans by giving the Administrative Agent prior notice of such election not later
than 11:00 a.m., London time, three Business Days prior to a requested
conversion; provided that if any such conversion of Eurocurrency Loans is made
--------
other than on the last day of an Interest Period with respect thereto, such
Borrower shall pay any amounts due to the Lenders pursuant to Section 2.15 as a
result of such conversion. Any such notice of conversion to Eurocurrency Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice the Administrative Agent shall
promptly notify each Lender thereof. All or any part of the outstanding
Eurocurrency Loans or ABR Loans may be converted as provided herein; provided
--------
that (i) no Loan may be converted into a Eurocurrency Loan when any Event of
Default has occurred and is continuing and the Administrative Agent or the
Required Lenders have determined that such a conversion is not appropriate and
(ii) no Loan may be converted into a Eurocurrency Loan after the date that is
one month prior to the Maturity Date.
36
Notwithstanding the foregoing, a Borrower may not elect to convert the currency
in which any Loan is denominated; however, subject to the terms of Section 2.01
and Section 2.04, a Borrower may elect to prepay a Loan and refinance the amount
of such Loan in another currency.
(b) Any Eurocurrency Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
relevant Borrower giving prior notice to the Administrative Agent, not later
than 11:00 a.m., London time, three Business Days prior to a requested
continuation setting forth the length of the next Interest Period to be
applicable to such Loans; provided that no Eurocurrency Loan may be continued as
--------
such (i) when any Event of Default has occurred and is continuing and the
Administrative Agent or the Required Lenders have determined that such a
continuation is not appropriate or (ii) after the date that is one month prior
to the Maturity Date; and provided, further, that if such Borrower shall fail to
-----------------
give any required notice as described above in this Section 2.03 or if such
continuation is not permitted pursuant to the preceding proviso in clause (ii)
above, such Loans shall continue as Eurocurrency Loans bearing interest a rate
determined by reference to the LIBO Rate or the PIBO Rate, as the case may be,
with an Interest Period of one month commencing on the last day of the then
current Interest Period.
SECTION 2.04. Prepayments of Loans. (a) Optional Prepayments. Each
--------------------- ---------------------
Borrower may at any time and from time to time prepay the Loans (subject, in the
case of Eurocurrency Loans to compliance with the terms of Section 2.15), in
whole or in part, without premium or penalty, upon irrevocable notice to the
Administrative Agent not later than (x) in the case of a Eurocurrency Loan,
12:00 noon, London time, and (y) in the case of an ABR Loan, 12:00 noon, New
York City time, two Business Days prior to the date of such prepayment,
specifying (i) the date and amount of prepayment, (ii) whether the prepayment is
of Eurocurrency Loans, ABR Loans or a combination thereof (including in the case
of Eurocurrency Loans, the Borrowing to which such prepayment is to be applied
and, if of a combination thereof, the amount allocable to each) and (iii)
whether the prepayment is of Alternative Currency Loans. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in
37
such notice shall be due and payable pursuant to Section 2.05 on the date
specified therein, together with accrued interest to such date on the amount
prepaid. Partial prepayments of Loans shall be in an aggregate principal amount
of 250,000,000 French Francs (or the equivalent based upon Assigned French Franc
Values) or a whole multiple of 100,000,000 French Francs (or the equivalent
based upon Assigned French Franc Values) in excess thereof (or, if less, the
remaining outstanding principal amount thereof).
(b) Required Prepayments. In the event that as of any Revaluation
---------------------
Date in respect of an Alternative Currency Borrowing the Assigned French Franc
Value thereof shall either increase or decrease, then (A) on or prior to such
Revaluation Date, the Administrative Agent shall notify CCSC and the Lenders of
the amount of increase or decrease and the resulting Aggregate Credit Exposure
and (B) in the case of an increase, if the resulting Aggregate Credit Exposure
would exceed the Total Credit Commitment after giving effect to such increase,
then CCSC shall, on the date such increase becomes effective, cause the Borrower
in respect of such Alternative Currency Borrowing to repay or prepay a portion
thereof pursuant to Section 2.05 in an amount sufficient to reduce the Assigned
French Franc Value of such Borrowing to an amount equal to the Assigned French
Franc Value thereof before giving effect to such increase.
SECTION 2.05. Repayment of Loans; Evidence of Debt.
-------------------------------------
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the relevant Lenders on the Maturity
Date (or such earlier date as the Loans become due and payable pursuant to
Section 2.04, Section 2.10, Section 2.12 or Article VII), the unpaid principal
amount of each Loan made to it by each such Lender, in the applicable currency
of such Loan. Each Borrower hereby further agrees to pay interest in
immediately available funds (in the applicable currency of each Loan) at the
applicable office of the Administrative Agent (as specified in Section 2.11(a))
on the unpaid principal amount of the Loans from time to time from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 2.06.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness
38
of each Borrower to the appropriate lending office of such Lender resulting from
each Loan, made by such lending office of such Lender from time to time,
including the applicable currency and amounts of principal and interest payable
and paid to such lending office of such Lender from time to time under this
Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 10.04, and a subaccount for each Lender, in which Register and
subaccounts (taken together) shall be recorded (i) the currency of each Loan
made hereunder, the amount of each such Loan, the Type of each such Loan and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from each Borrower to each Lender
hereunder in respect of each such Loan and (iii) the amount of any sum received
by the Administrative Agent hereunder from each Borrower in respect of each such
Loan and each Lender's share thereof.
(d) The entries made in the Register and accounts maintained pursuant
to paragraphs (b) and (c) of this Section 2.05 and the Notes maintained pursuant
to paragraph (e) of this Section 2.05 shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain such account, such
Register or such subaccount, as applicable, or any error therein, shall not in
any manner affect the obligation of any Borrower to repay (with applicable
interest) the Loans made to such Borrower by such Lender in accordance with the
terms of this Agreement.
(e) The Loans made by each Lender to each Borrower shall, if
requested by the applicable Lender (which request shall be made to the
Administrative Agent), be evidenced by a single Note duly executed on behalf of
such Borrower, in substantially the form attached hereto as Exhibit J, with the
blanks appropriately filled, payable to the order of such Lender.
SECTION 2.06. Interest Rates and Payment Dates. (a) Each
---------------------------------
Eurocurrency Loan shall bear interest (computed on the basis of the actual
number of days elapsed over a year of 360 days, except in the case of Loans
denominated in British Pounds
39
Sterling which shall bear interest computed on the basis of the actual number of
days elapsed over a year of 365 days) for each day during each Interest Period
with respect thereto at a rate per annum equal to:
(i) in the case of a Eurocurrency Loan denominated in British Pounds
Sterling to a U.K. Borrower, (w) the LIBO Rate determined for such Interest
Period, plus (x) the Applicable Percentage per annum, plus (y) commencing
on the earlier of (A) the date 180 days after the initial Borrowing and (B)
the date 210 days after the Closing Date, 0.05% per annum, plus (z) MLA
Cost; or
(ii) in the case of a Eurocurrency Loan denominated in Dollars or
French Francs, (w) the LIBO Rate determined for such Interest Period, plus
(x) the Applicable Percentage per annum, plus (y) commencing on the earlier
of (A) the date 180 days after the initial Borrowing and (B) the date 210
days after the Closing Date, 0.05% per annum; or
(iii) in the case of a Eurocurrency Loan denominated in British Pounds
Sterling to a Borrower that is not a U.K. Borrower, (w) the PIBO Rate, plus
(x) the Applicable Percentage, plus (y) commencing in the earlier of (A)
the date 180 days after the initial Borrowing and (B) the date 210 days
after the Closing Date, 0.05% per annum.
Interest in respect of Eurocurrency Loans shall accrue from and including the
first day of an Interest Period to but excluding the last day of such Interest
Period.
(b) Each ABR Loan shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as the case may
be, when the Alternate Base Rate is determined by reference to the Prime Rate
and over a year of 360 days at all other times) at a rate per annum equal to the
Alternate Base Rate.
(c) If all or a portion of (i) the principal amount of any Loan, (ii)
any interest payable thereon or (iii) any Facility Fee or other amount payable
hereunder shall not be paid when due (whether at the stated maturity thereof or
by acceleration or otherwise), such overdue amount shall bear interest at a rate
per
40
annum which is (x) in the case of overdue principal, the rate that would
otherwise be applicable thereto pursuant to the foregoing provisions of this
Section 2.06 plus 2% per annum or (y) in the case of any overdue interest,
----
Facility Fee or other amount, the rate described in Section 2.06(b) plus 2%
----
per annum, in each case from the date of such nonpayment to (but excluding) the
date on which such amount is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to Section 2.06(c) shall be
--------
payable from time to time on demand.
SECTION 2.07. Computation of Interest. Each determination of an
-------------------------
interest rate by the Administrative Agent pursuant to any provision of this
Agreement shall be conclusive and binding on the Borrowers and the Lenders in
the absence of manifest error.
SECTION 2.08. Fees. (a) CCSC agrees to pay a facility fee (a
------
"Facility Fee") to each Lender, for which payment will be made in arrears
-------------
through the Administrative Agent on the last day of March, June, September and
December, and on the Facility Fee Termination Date (as defined below). The
Facility Fee due to each Lender shall commence to accrue on November 13, 1995
and shall cease to accrue on the date (the "Facility Fee Termination Date") that
-----------------------------
is the latter of (i) the date on which the Credit Commitment of such Lender
shall be terminated as provided herein or (ii) the date after the Credit
Commitment Termination Date on which the Borrowers repay in full all the Loans
made by such Lender. The Facility Fee accrued to each Lender shall equal the
Applicable Percentage per annum multiplied by such Lender's Facility Fee Average
Daily Amount (as defined below) for the applicable quarter (or shorter period
commencing on November 13, 1995 or ending with such Lender's Facility Fee
Termination Date). A Lender's "Facility Fee Average Daily Amount" with respect
---------------------------------
to a calculation period shall equal the average daily amount during such period
calculated using the daily amount of either (i) the Lender's Credit Commitment
(whether used or unused) for any applicable days during the Lender's Credit
Commitment Period (for purposes of this Section 2.08(a) only, each Lender shall
be deemed to have a Credit Commitment equal to its Credit Commitment on the date
41
hereof for each day in the period from and including November 13, 1995 to, but
not including, the date hereof) or (ii) the Lender's Credit Exposure for any
applicable days during the period subsequent to the Credit Commitment Period and
ending on the Facility Fee Termination Date. All Facility Fees shall be
computed on the basis of the actual number of days elapsed in a year of 360
days. CCSC shall pay all Facility Fees in French Francs.
(b) CCSC agrees to pay to the Administrative Agent, for its own
account, the administrative fees separately agreed upon by CCSC and the
Administrative Agent in the Fee Letter (the "Administrative Agent Fees").
-------------------------
(c) CCSC agrees to pay to each Lender on the Closing Date a Fee equal
to 0.02% multiplied by such Lender's Credit Commitment on the Closing Date (in
aggregate for all Lenders, the "Closing Fees"). CCSC shall pay all Closing Fees
in French Francs.
(d) All Fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the Lenders. Once paid, none of the Fees shall be refundable.
SECTION 2.09. Termination or Reduction of Credit Commitments. (a)
------------------------------------------------
CCSC shall have the right, upon one Business Day's notice to the Administrative
Agent, to terminate the Credit Commitments or, from time to time, to reduce the
amount of the Credit Commitments; provided that no such termination or reduction
--------
of Credit Commitments shall be permitted if, after giving effect thereto and to
any repayments of the Loans made on the effective date thereof, the Aggregate
Credit Exposure then outstanding would exceed the Total Credit Commitment then
in effect. Any such reduction shall be in an amount equal to 250,000,000 French
Francs or a whole multiple of 100,000,000 French Francs in excess thereof and
shall reduce permanently the Credit Commitments then in effect.
(b) CCSC shall pay to the Administrative Agent for the account of the
Lenders, on the date of such termination or reduction, the Facility Fee on the
amount of the Credit
42
Commitments so terminated or reduced accrued to the date of such termination or
reduction.
SECTION 2.10. Inability to Determine Interest Rate; Unavailability of
-------------------------------------------------------
Deposits; Inadequacy of Interest Rate. (a) If prior to 11:00 a.m. London time
--------------------------------------
two Business Days before the first day of any Interest Period, including an
initial Interest Period for a requested Eurocurrency Borrowing:
(i) the Administrative Agent shall have determined in good faith
(which determination shall be conclusive and binding upon the Borrowers)
that, by reason of circumstances affecting the relevant market generally,
adequate and reasonable means do not exist for ascertaining the LIBO Rate
or the PIBO Rate, as the case may be, for the currency in which any
Eurocurrency Loan is denominated or the currency specified in the Borrowing
Request for such Eurocurrency Borrowing (the "Applicable Currency") for
such Interest Period, or
(ii) the Administrative Agent shall have received notice from the
Required Lenders that the LIBO Rate or the PIBO Rate, as the case may be,
determined or to be determined for such Interest Period for the Applicable
Currency will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period, then
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrowers and the Lenders by 12:00 noon London time on the same day. If such
notice is given under clause (a)(i) or (a)(ii) above, any affected Eurocurrency
Loans shall not be converted or continued pursuant to Section 2.03 or made
pursuant to a Borrowing Request, as the case may be, except as follows:
(I) If the Borrowers so request, no later than 1:00 p.m. London time
on the same day, the affected Eurocurrency Loans shall be converted or
continued pursuant to Section 2.03 or made pursuant to a Borrowing Request,
as the case may be, but with an Interest Period of one month and the amount
of interest payable in respect of any such
42
Eurocurrency Loan shall be determined in accordance with the following
provisions of this Section 2.10(a)(I);
(A) if the Administrative Agent so requires, within five days of such
notification the Administrative Agent and the Borrowers shall enter into
negotiations with a view to agreeing on a substitute basis for determining
the rate of interest (a "Substitute Interest Rate") which may be applicable
to affected Eurocurrency Loans in the future and any such Substitute
Interest Rate that is agreed shall take effect in accordance with its terms
and be binding on each party hereto; provided that the Administrative Agent
may not agree on any such Substitute Interest Rate without the prior
consent of each Required Lender;
(B) if no Substitute Interest Rate is agreed pursuant to Section
2.10(a)(I)(A), any such Eurocurrency Loan converted, continued or made by
the Lenders pursuant to Section 2.10(a)(I) shall bear interest during the
subsequent Interest Period at the rate per annum determined by the
Administrative Agent pursuant to Section 2.06(a) except that in the place
of the LIBO Rate or PIBO Rate, as the case may be, the Administrative Agent
shall use the cost to the applicable Lender (as conclusively certified by
such Lender to the Administrative Agent with a copy to the Borrowers and
expressed as a rate per annum) of funding such Loan from whatever source it
shall reasonably select;
(C) if the Administrative Agent has required the Borrower to enter
into negotiations pursuant Section 2.10(a)(I)(A), the Administrative Agent
may (acting on the instructions of the Required Lenders) declare that no
further Eurocurrency Loans denominated in such currency shall be converted,
continued or made unless a Substitute Interest Rate has been agreed by the
Borrowers and the Administrative Agent within 30 days of the Administrative
Agent having so required negotiations;
44
(II) Alternatively, if the Borrowers so request, no later than 1:00
p.m. London time two Business Days prior to the first day of the applicable
Interest Period, the affected Loans shall be made in, or prepaid pursuant
to Section 2.04 and reborrowed in, a currency permitted under Section 2.01
other than the Applicable Currency ("Another Currency") in an amount that
is the Currency Equivalent of the Applicable Currency amount of the
affected Loans on the first day of such Interest Period (and the affected
Loans may be, if necessary, prepaid pursuant to Section 2.04 and reborrowed
in Another Currency whether or not such day is during the Credit Commitment
Period, notwithstanding the provisions of Section 2.01). The provisions of
clauses (a)(i) and (a)(ii) above shall apply to the proposed Loans in
Another Currency (except that the time for notice by the Required Lenders
under clauses (a)(i) or (a)(ii) shall be 2:00 p.m. London time on such day
and the time for notice by the Administrative Agent to the Borrowers and
the Lenders shall be 3:00 p.m. London time on such day), and should the
Administrative Agent give a notice under (a)(i) or (a)(ii) above with
respect thereto, then, unless the Borrowers request by 10:00 a.m. London
time on the following Business Day for the affected Loans to be converted,
continued or made pursuant to Section 2.10(a)(I), such Loans shall be
converted, continued or made in accordance with paragraph (III) below.
(III) Alternatively, (i) if the Borrowers fail to request that the
affected Loans be converted, continued or made pursuant to either
paragraphs (I) or (II) above or (ii) under the conditions provided in
paragraph (II) above for this paragraph (III) to apply, (x) any
Eurocurrency Loans denominated in Dollars requested to be made on the first
day of such Interest Period shall be made as ABR Loans, (y) any Loans
denominated in Dollars that, on the first day of such Interest Period, were
to have been converted to or continued as Eurocurrency Loans shall be
continued as or converted to ABR Loans and (z) any Eurocurrency Loans that
are Non-Dollar Loans shall be prepaid on the first day of such Interest
Period and, whether or not such day is during the Credit Commitment Period
(and notwithstanding the provisions of Section 2.01), the Dollar Equivalent
of such prepaid Loans
45
may simultaneously therewith be reborrowed in Dollars as ABR Loans.
The Administrative Agent shall promptly withdraw such notice upon
becoming aware that the circumstances giving rise thereto shall no longer exist.
Until such notice has been withdrawn by the Administrative Agent, no further
Eurocurrency Loans denominated in the affected currency shall be made or
continued as such, nor shall any Borrower have the right to convert ABR Loans to
Eurocurrency Loans denominated in the affected currency, except as provided in
Section 2.10(a)(I).
(b) If prior to 11:00 a.m. London time two Business Days before the
first day of an Interest Period for a Non-Dollar Loan (including an initial
Interest Period for a requested Eurocurrency Borrowing for a Non-Dollar Loan)
any Lender notifies the Administrative Agent and the Borrowers that, in its
reasonable and considered opinion, it would be unable at any cost, by reason of
circumstances affecting the relevant market generally, to obtain matching
deposits in the Applicable Currency at the required time and in sufficient
amounts to fund its affected Loans, then such Lender shall not be required to
make or maintain a Loan in the Applicable Currency. In such case, the Borrowers
may request, no later than 1:00 p.m. London time on the same day, that the
affected Loan be made in, or prepaid pursuant to Section 2.04 and simultaneously
therewith reborrowed in, Another Currency in an amount that is the Currency
Equivalent of the Applicable Currency amount of the affected Loans on the first
day of such Interest Period (and the affected Loans may be, if necessary,
prepaid and simultaneously therewith reborrowed in Another Currency whether or
not such day is during the Credit Commitment Period, notwithstanding the
provisions of Section 2.01). The first sentence of this clause (b) shall apply
to the proposed Loans in Another Currency (except that the time for notice to
the Administrative Agent and the Borrowers shall be 2:00 p.m. London time on
such day) and should any Lender give a notice under this clause (b) with respect
thereto, or should the Borrowers fail to request a Loan in Another Currency,
then such Lender shall instead (as described in Section 2.10(a)(III) above) make
the Affected Loan in, or the Borrower shall prepay the Loan pursuant to Section
2.04 and reborrow in, Dollars (an "Alternative Dollar Loan") on the first day of
such Interest Period. The Administrative Agent shall, no later than 3:00 p.m.
46
London time on such day, inform the Borrower if any Loans are to be made in or
prepaid and reborrowed in Dollars pursuant to this Section 2.10(b). A
Eurocurrency Borrowing comprised of two different currencies pursuant to this
Section 2.10(b) shall be referred to herein as a "Multicurrency Borrowing".
SECTION 2.11. Pro Rata Treatment and Payments. (a) Each reduction
--------------------------------
of the Credit Commitments of the Lenders shall be made pro rata according to the
--- ----
amounts of the Lenders' Commitment Percentages. Each payment (including each
prepayment) by a Borrower on account of principal of and interest on Loans which
are ABR Loans shall be made pro rata according to the respective outstanding
--- ----
principal amounts of such ABR Loans then held by the Lenders. Each payment
(including each prepayment) by a Borrower on account of principal of and
interest on Loans which are Eurocurrency Loans designated by a Borrower to be
applied to a particular Eurocurrency Borrowing shall be made pro rata according
--- ----
to the respective outstanding principal amounts of such Eurocurrency Loans then
held by the Lenders; provided that with respect to a single Multicurrency
--------
Borrowing payments made in the specific currency of Eurocurrency Loans that are
part of such Multicurrency Borrowing shall be applied pro rata according to the
--- ----
outstanding principal amount of all Eurocurrency Loans included in such
Multicurrency Borrowing that are denominated in such currency; provided further
----------------
that if payments designated by the Borrower for a particular Multicurrency
Borrowing are not denominated in the appropriate currencies required by the next
sentence such that each Lender's Credit Exposure will be reduced pro rata in
--- ----
accordance with the Lenders' Commitment Percentages, then, the Administrative
Agent shall convert a portion of such payments into the currencies required to
so reduce each Lender's Credit Exposure pro rata after application of all such
--- ----
payments. All payments (including prepayments) to be made by a Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set off or counterclaim and shall be made prior to 10:00 a.m.,
New York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Administrative Agent's New York office specified
in Section 10.01, in the currency in which the applicable Obligation is
denominated and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder (other than payments on Eurocurrency Loans)
47
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension. If any payment on a Eurocurrency Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and, with respect to payments of
principal, interest thereon shall be payable at the then applicable rate during
such extension) unless the result of such extension would be to extend such
payment into another calendar month, in which event such payment shall be made
on the immediately preceding Business Day.
(b) Subject to Section 2.10, unless the Administrative Agent shall
have been notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may
assume that such Lender is making such amount available to the Administrative
Agent, and the Administrative Agent may, in reliance upon such assumption, make
available to the relevant Borrower a corresponding amount. If such amount is
not made available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this Section 2.11(b) shall be conclusive in the absence of manifest error.
If such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to ABR Loans hereunder,
on demand, from the relevant Borrower, but without prejudice to any right or
claim that such Borrower may have against such Lender.
SECTION 2.12. Illegality. Notwithstanding any other provision
-----------
herein, if the adoption of or any change in any Requirement of Law, or in the
interpretation or application thereof shall make it unlawful for any Lender to
make or maintain
48
Eurocurrency Loans as contemplated by this Agreement, (a) the commitment of such
Lender hereunder to make Eurocurrency Loans, continue Eurocurrency Loans as such
and convert ABR Loans to Eurocurrency Loans shall forthwith be suspended until
such time as the making or maintaining of Eurocurrency Loans shall no longer be
unlawful, (b) such Lender's Loans denominated in Dollars then outstanding as
Eurocurrency Loans, if any, shall be converted automatically to ABR Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law, and (c) such Lender's
Non-Dollar Loans, if any, shall be prepaid on the respective last days of the
then current Interest Periods with respect to such Loans (or within such earlier
period as may be required by law) and, whether or not such prepayment dates are
during the Credit Commitment Period (and notwithstanding the provisions of
Section 2.01), the Dollar Equivalent of such prepaid Loans may simultaneously
therewith be reborrowed in Dollars as ABR Loans.
SECTION 2.13. Requirements of Law. (a) The Borrowers agree to
--------------------
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum receivable by such Lender in respect of,
making, continuing or maintaining (or of its obligation to make, continue or
maintain) any Loans as, or of converting (or of its obligation to convert) any
Loans into, Eurocurrency Loans including, without limitation, by reason of any
requirements imposed by the Board upon the making or funding of Eurocurrency
Loans. Such Lender shall promptly notify the Administrative Agent and CCSC in
writing of the occurrence of any such event, such notice to state, in reasonable
detail, the reasons therefor and the additional amount required fully to
compensate such Lender for such increased cost or reduced amount. Such
additional amounts shall be payable directly to such Lender within five days of
CCSC's receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on the Borrowers.
(b) If any change in, or the introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other governmental authority after
the date hereof affects or would affect the amount of capital required or
49
expected to be maintained by any Lender and such Lender determines (in its sole
and absolute discretion) that the rate of return on its capital as a consequence
of its Credit Commitment or the Loans made by it is reduced to a level below
that which such Lender could have achieved but for the occurrence of any such
circumstance, then, in any such case upon notice from time to time by such
Lender to CCSC, the Borrowers shall immediately pay directly to such Lender
additional amounts sufficient to compensate such Lender for such reduction in
rate of return. A statement of such Lender as to any such additional amount or
amounts (including calculations thereof in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrowers. In
determining such amount, such Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem applicable.
(c) No Lender shall be entitled to compensation under this Section
2.13 for any costs incurred or reductions suffered with respect to any date that
it has such costs unless it shall have notified CCSC that it will demand
compensation for such costs or reductions under paragraph (a) or (b) above, as
applicable, not more than 120 days after the later of (i) such date and (ii) the
date on which it shall have become aware of such costs or reductions; provided
--------
that the foregoing shall in no way operate in derogation of the undertaking
contained in the last sentence of this paragraph (c). Notwithstanding any other
provision of this Section 2.13, no Lender shall demand compensation for any
increased cost or reduction referred to above if it shall not at the time be the
general policy or practice of such Lender to demand such compensation in similar
circumstances under comparable provisions of other credit agreements. In the
event that any Lender determines that any event or circumstance that will lead
to a claim under this Section 2.13 has occurred or will occur, such Lender will
use its best efforts to so notify CCSC; provided, that any failure to provide
--------
such notice shall in no way impair the rights of any Lender to demand and
receive compensation under this Section 2.13, but without prejudice to any
claims of CCSC for compensation for actual damages sustained as a result of any
failure to observe this undertaking.
50
SECTION 2.14. Taxes. All payments by each Borrower of principal of,
------
and interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority on the
Administrative Agent or any Lender (or any assignee of such Lender or a
participation holder or a change in designation of the lending office of a
Lender (a "Transferee")), but excluding franchise taxes and taxes imposed on or
measured by the recipient's net income or receipts (such non-excluded items
being called "Taxes"). In the event that any withholding or deduction from any
-----
payment to be made by any Borrower hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then such Borrower will
(a) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official receipt
or other documentation satisfactory to the Administrative Agent evidencing
such payment to such authority; and
(c) pay to the Administrative Agent for the account of the Lenders
such additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the applicable Borrower will promptly pay such additional amounts
(including any penalties, interest or expenses) as shall be necessary in order
that the net amount received by such person after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
person would have received had such Taxes not been asserted.
51
If the Borrowers fail to pay any Taxes when due to the appropriate
taxing authority or fail to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 2.14, a distribution hereunder by
the Administrative Agent to or for the account of any Lender shall be deemed a
payment by a Borrower.
Each Lender or Transferee that is organized under the laws of a
jurisdiction other than the United States shall, on or prior to the date hereof
(in the case of each Lender that is a party hereto on the date hereof) or on or
prior to the date of any assignment or participation hereunder (in the case of a
Transferee) and thereafter as reasonably requested from time to time by CCSC or
the Administrative Agent, execute and deliver, if legally able to do so, to CCSC
and the Administrative Agent one or more (as CCSC or the Administrative Agent
may reasonably request) United States Internal Revenue Service Forms 4224 or
Forms 1001 and Form W-8 or Form W-9 or such other forms or documents (or
successor forms or documents), appropriately completed, as may be applicable to
establish the extent, if any, to which a payment to such Lender or Transferee is
exempt from or entitled to a reduced rate of, withholding or deduction of Taxes.
With respect to Obligations other than those specified in the
immediately following paragraph, the Borrowers shall not be required to
indemnify or to pay any additional amounts to any Lender, or Transferee with
respect to any Taxes pursuant to this Section 2.14 to the extent that (i) any
obligation to withhold, deduct or pay amounts with respect to such tax existed
on the date such Lender or Transferee became a party to this Agreement (and, in
such case, Borrowers may deduct and withhold such tax from payments to such
Lender or Transferee), or (ii) any Lender or Transferee fails to comply in full
with the provisions of the immediately preceding paragraph (and, in such case,
Borrowers may deduct and withhold all Taxes required by law as a result of such
noncompliance from payments to such Lender or Transferee).
With respect to Loans not denominated in Dollars or Loans made to non-
U.S. subsidiaries, each relevant Lender or Transferee shall determine the extent
to which obligations to
52
withhold, deduct or pay amounts with respect to Taxes would exist on the date
such Lender or Transferee would make such Loans and shall disclose to CCSC such
determination. Based on such determination, the applicable Borrower shall either
agree (i) to indemnify or pay any such additional amounts to each such Lender or
Transferee pursuant to this Section 2.14 or (ii) that such Lender or Transferee
shall not be obligated to make such Loans provided, however, that in the event
-------- -------
of a change in law or regulation such additional amounts shall be adjusted to
reflect such change.
Notwithstanding anything to the contrary in this Section 2.14, if the
Internal Revenue Service determines that a Lender (or Transferee) is a conduit
entity participating in a conduit financing arrangement as defined in Section
7701(l) of the Code and the regulations thereunder and the Borrower was not a
participant to such arrangement (other than as Borrower under this Agreement) (a
"Conduit Financing Arrangement"), then (i) the Borrower shall have no obligation
to pay additional amounts or indemnify the Lender or Transferee for any Taxes
with respect to any payments hereunder to the extent the amount of such Taxes
exceeds the amount that would have otherwise been withheld or deducted had the
Internal Revenue Service not made such a determination and (ii) such Lender or
Transferee shall indemnify the Borrowers in full for any and all taxes for which
a Borrower is held directly liable under Section 1461 of the Code by virtue of
such Conduit Financing Arrangement provided that the Borrower (i) promptly
-------------
forwards to the indemnitor an official receipt or other documentation
satisfactorily evidencing such payment, (ii) shall contest such tax upon the
reasonable request of the indemnitor and at such indemnitor's cost and (iii) pay
to such indemnitor within 30 days any refund of such taxes (including interest
thereon). Each Lender or Transferee represents that it is not participating in
a Conduit Financing Arrangement.
No Lender shall be entitled to payment under this Section 2.14 unless
it shall have notified the applicable Borrower that it will demand such payment
not more than 120 days after the date on which it shall have become aware that
it was entitled to such payment; provided, that the foregoing shall in no way
--------
operate in derogation of the undertaking contained in the last sentence of this
Section 2.14. Notwithstanding any other provision of this Section 2.14, no
Lender shall demand any
53
payment referred to above if it shall not at the time be the general policy or
practice of such Lender to demand such compensation in similar circumstances
under comparable provisions of other credit agreements. In the event that any
Lender determines that any event or circumstance that will lead to a claim by it
under this Section 2.14 has occurred or will occur, such Lender will use its
best efforts to so notify CCSC; provided, that any failure to provide such
--------
notice shall in no way impair the rights of any Lender to demand and receive
compensation under this Section 2.14, but without prejudice to any claims of
CCSC for failure to observe this undertaking.
SECTION 2.15. Indemnity. In the event any Lender shall incur any
----------
loss or expense (including any loss (other than lost profit) or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to make, continue or maintain any portion of the principal amount
of any Loan as, or to convert any portion of the principal amount of any Loan
into, a Eurocurrency Loan) as a result of any conversion of a Eurocurrency Loan
to a ABR Loan or repayment or prepayment of the principal amount of any
Eurocurrency Loan, on a date other than the scheduled last day of the Interest
Period applicable thereto, whether pursuant to Section 2.03, 2.04, 2.05 or 2.13
or otherwise, or any failure to borrow or convert any Eurocurrency Loan after
notice thereof shall have been given hereunder, whether by reason of any failure
to satisfy a condition to such borrowing or otherwise; then, upon the written
notice of such Lender to the applicable Borrower (with a copy to the
Administrative Agent), such Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or expense.
Such written notice (which shall include calculations in reasonable detail)
shall, in the absence of manifest error, be conclusive and binding on such
Borrower.
SECTION 2.16. Change of Lending Office. Each Lender (or Transferee)
--------------------------
agrees that, upon the occurrence of any event giving rise to the operation of
Section 2.12, 2.13 or 2.14 with respect to such Lender (or Transferee), it will,
if requested by CCSC, use reasonable efforts (subject to overall policy
considerations of such Lender (or Transferee)) to designate another lending
office for any Loans affected by such event with
54
the object of avoiding the consequences of such event, provided, that such
--------
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its respective lending offices to suffer no material economic,
legal or regulatory disadvantage, and provided, further, that nothing in this
-----------------
Section 2.16 shall affect or postpone any of the obligations of any Borrower or
the rights of any Lender (or Transferee) pursuant to Section 2.12, 2.13 and
2.14.
SECTION 2.17. Sharing of Setoffs. Each Lender agrees that if it
-------------------
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against the Borrower, or pursuant to a secured claim under Section 506 of Title
11 of the United States Code or other security or interest arising from, or in
lieu of, such secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan or Loans which
at the time shall be due and payable as a result of which the unpaid principal
portion of its Loans which at the time shall be due and payable shall be
proportionately less than the unpaid principal portion of such Loans of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in such Loans of such other Lender, so that
the aggregate unpaid principal amount of such Loans and participations in such
Loans held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all such Loans as prior to such exercise of banker's
lien, setoff or counterclaim or other event; provided, however, that, if any
-------- -------
such purchase or purchases or adjustments shall be made pursuant to this Section
and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery
and the purchase price or prices or adjustment restored without interest. Each
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Loan deemed to have been so purchased may
exercise any and all rights of banker's lien, setoff or counterclaim with
respect to any and all moneys owing by such Borrower to such Lender by reason
thereof as fully as if such Lender had made a Loan directly to such Borrower in
the amount of such participation.
55
SECTION 2.18. Assignment of Commitments Under Certain Circumstances.
------------------------------------------------------
In the event that any Lender shall have delivered a notice or certificate
pursuant to Section 2.10(b), 2.12 or 2.13, or the Borrowers shall be required to
make additional payments to any Lender under Section 2.14, CCSC shall have the
right, but not the obligation, at its own expense, upon notice to such Lender
and the Administrative Agent, (a) to replace such Lender with an assignee (in
accordance with and subject to the restrictions contained in Section 10.04)
approved by the Administrative Agent (which approval shall not be unreasonably
withheld), and such Lender hereby agrees to transfer and assign without recourse
(in accordance with and subject to the restrictions contained in Section 10.04)
all its interests, rights and obligations under this Agreement to such assignee;
provided, however, that no Lender shall be obligated to make any such assignment
-------- -------
unless (i) such assignment shall not conflict with any law or any rule,
regulation or order of any Governmental Authority and (ii) such assignee or the
Borrowers shall pay to the affected Lender in immediately available funds on the
date of such assignment the principal of and interest accrued to the date of
payment on the Loans made by such Lender hereunder and all other amounts accrued
for such Lender's account or owed to it hereunder or (b) to terminate the right
or obligation of such Lender to make Loans and reduce the Total Credit
Commitment by the amount of such Lender's Commitment, so long as the amount of
the remaining Credit Commitments after giving effect to such termination exceeds
the Aggregate Credit Exposure.
56
ARTICLE III. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement and to extend credit hereunder and under the other Loan
Documents, CCSC represents and warrants as follows:
SECTION 3.01. Organization, etc. CCSC is a corporation, and each of
------------------
its Subsidiaries is a corporation or partnership, validly organized and existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, is duly qualified to do business and is in
good standing as a foreign corporation or foreign partnership, as the case may
be, in each jurisdiction where the nature of its business requires such
qualification, except where the failure to so qualify will not have a Material
Adverse Effect, and has full power and authority and holds all requisite
material governmental licenses, permits and other approvals to enter into and
perform its Obligations under this Agreement and each other Loan Document to
which it is a party and to own or hold under lease its property and to conduct
its business substantially as currently conducted by it.
SECTION 3.02. Due Authorization, Non-Contravention, etc. The
------------------------------------------
execution, delivery and performance by each Borrower of this Agreement and each
other Loan Document executed or to be executed by it are within each Borrower's
corporate powers or partnership powers, as the case may be, have been duly
authorized by all necessary corporate action or partnership action, as the case
may be, and do not
(a) contravene the Organic Documents of CCSC;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting CCSC; or
(c) result in, or require the creation or imposition of, any material
Lien on any of CCSC properties.
SECTION 3.03. Government Approval, Regulation, etc. No
-------------------------------------
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or
57
other Person is required for the due execution, delivery or performance by CCSC
or the Subsidiary Borrowers of this Agreement or any other Loan Document.
Neither CCSC nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.04. Validity, etc. This Agreement constitutes, and each
--------------
other Loan Document executed by each Borrower will, on the due execution and
delivery thereof, constitute, the legal, valid and binding obligation of such
Borrower enforceable in accordance with its respective terms, subject to the
effect of bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforceability of creditors' rights generally and or general
principles of equity.
SECTION 3.05. Financial Information. The consolidated balance
----------------------
sheets of CCSC and its Subsidiaries as of December 31, 1994, and September 30,
1995, and the related consolidated statements of earnings and cash flow of CCSC
and its Subsidiaries, copies of which have been furnished to the Administrative
Agent and each Lender, have been prepared in accordance with GAAP consistently
applied, and present fairly in all material respects the consolidated financial
condition of CCSC and its Subsidiaries as of the dates thereof and the results
of their operations for the periods then ended (subject, in the case of the
financial statements as of and for the period ended September 30, 1995, to
normal year-end adjustments and to the absence of notes).
SECTION 3.06. No Material Adverse Change. Since the date of the
---------------------------
later of the financial statements described in Section 3.05 there has been no
material adverse change in the financial condition or results of operations of
CCSC and its Subsidiaries taken as a whole.
SECTION 3.07. Litigation, Labor Controversies, etc. There is no
-------------------------------------
pending or, to the knowledge of any Borrower, threatened litigation, action,
proceeding, or labor controversy affecting CCSC or any of its Subsidiaries, or
any of their
58
respective properties, businesses, assets or revenues, which will result in a
Material Adverse Effect or which purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the transactions
contemplated hereby or thereby.
SECTION 3.08. Subsidiaries. As of the date hereof, CCSC has no
-------------
Significant Subsidiaries, except those Significant Subsidiaries which are
identified on Schedule 3.08.
SECTION 3.09. Ownership of Properties. CCSC and each of its
------------------------
Subsidiaries has good and marketable title to all of its properties and assets,
real and personal, tangible and intangible, of any nature whatsoever (including
patents, trademarks, trade names, service marks and copyrights), free and clear
of all Liens, charges or claims (including infringement claims with respect to
patents, trademarks, copyrights and the like) except as permitted pursuant to
Section 6.03 or Liens, charges or claims that will not have a Material Adverse
Effect.
SECTION 3.10 Taxes. CCSC and each of its Subsidiaries has filed all
------
federal and all other material income tax returns and reports required by law to
have been filed by it and has paid all taxes and governmental charges due,
except (i) any such taxes or charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books and (ii) any such
taxes or charges that would not, individually or in the aggregate, result in a
Material Adverse Effect.
SECTION 3.11. Pension and Welfare Plans. During the
--------------------------
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement, no Pension Plan has been terminated, or has been subject to
the commencement of any termination, that could reasonably be expected to
result in a material liability to CCSC or any ERISA Affiliate, and no
contribution failure has occurred with respect to any Pension Plan sufficient to
give rise to a Lien under section 302 (f) of ERISA. No condition exists or event
or transaction has occurred with respect to any Pension Plan which might result
in the incurrence by CCSC or any ERISA Affiliate of any liability, fine or
penalty which will have a Material Adverse Effect. Except for
59
the post-retirement benefits described in Schedule 3.11, CCSC has no contingent
liability with respect to post-retirement benefits provided by CCSC and its
Subsidiaries under a Welfare Plan, other than (i) liability for continuation
coverage described in Part 6 of Subtitle B of Title I of ERISA and (ii)
liabilities which will not, individually or in the aggregate, have a Material
Adverse Effect.
SECTION 3.12. Environmental Warranties. (a) All facilities and
-------------------------
property owned or leased or leased by CCSC or any of its Subsidiaries have been,
and continue to be, owned or leased by CCSC and its Subsidiaries in compliance
with all Environmental Laws, except for such noncompliance which, singly or in
the aggregate, will not have a Material Adverse Effect;
(b) there have been no past unresolved, and there are no pending or
threatened (in writing)
(i) claims, complaints, notices or requests for information received
by CCSC or any of its Subsidiaries with respect to any alleged violation of
any Environmental Law, or
(ii) complaints, written notices or inquiries to CCSC or any of its
Subsidiaries regarding potential liability under any Environmental Law,
(c) there have been no Releases of Hazardous Materials at, on or
under any property now or, to any Borrower's knowledge, previously owned or
leased by CCSC or any of its Subsidiaries that, singly or in the aggregate, have
or will have a Material Adverse Effect;
(d) CCSC and its Subsidiaries have been issued and are in compliance
with all permits, certificates, approvals, licenses and other authorizations
relating to environmental matters and necessary or desirable for their
businesses, except for such permits, approvals, licenses and other
authorizations which, if not so obtained or as to which CCSC and its
Subsidiaries are not
60
in compliance (in each case singly or in the aggregate), will not have a
Material Adverse Effect;
(e) no property now or, to any Borrower's knowledge, previously owned
or leased by CCSC or any of its Subsidiaries is listed or proposed for listing
(with respect to owned property only) on the CERCLIS or on any similar state
list of sites requiring investigation or clean-up, or on the National Priorities
List pursuant to CERCLA, in each case, other than properties as to which any
such listing will not result in a Material Adverse Effect;
(f) there are no underground storage tanks, active or abandoned,
including petroleum storage tanks, on or under any property now or, to any
Borrower's knowledge, previously owned or leased by CCSC or any of its
Subsidiaries that, singly or in the aggregate, have, or will have, a Material
Adverse Effect;
(g) to any Borrower's knowledge, neither CCSC nor any Subsidiary has
directly transported or directly arranged for the transportation of any
Hazardous Material to any location which is listed or proposed for listing on
the National Priorities List pursuant to CERCLA, on the CERCLIS or on any
similar state list or which is the subject of federal, state or local
enforcement actions or other investigations which will lead to claims against
CCSC or such Subsidiary thereof for any remedial work, damage to natural
resources or personal injury, including claims under CERCLA, which will have a
Material Adverse Effect; and
(h) there are no polychlorinated biphenyls or friable asbestos present
at any property owned or leased by CCSC or any Subsidiary that, singly or in the
aggregate, have, or will have, a Material Adverse Effect.
SECTION 3.13. Regulations G, U and X. The Loans, the use of the
-----------------------
proceeds thereof, this Agreement and the transactions contemplated hereby will
not result in a violation of or be inconsistent with any provision of Regulation
G, U or X.
SECTION 3.14. Accuracy of Information. To the best of CCSC's
------------------------
knowledge, neither this Agreement nor any other document, certificate or
statement furnished to the Administrative Agent or any Lender by or on behalf of
CCSC in connection herewith
61
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein and therein not
misleading, in light of the circumstances under which they were made.
ARTICLE IV. CONDITIONS OF LENDING
SECTION 4.01. Conditions to Effectiveness. On the Closing Date:
----------------------------
(a) The Administrative Agent shall have received, on behalf of itself
and the Lenders favorable written opinions of Dechert Price & Xxxxxx,
counsel for the Borrowers, and Xxxxxxx X. Xxxxxxxxxxxx, Esq., Executive
Vice President, Secretary and General Counsel of CCSC, substantially to the
effect set forth in Exhibits F and G, respectively, (A) dated the Closing
Date and (B) addressed to the Administrative Agent and the Lenders.
(b) All documents executed or submitted in connection with this
Agreement, the borrowings hereunder and the other Loan Documents shall be
reasonably satisfactory to the Lenders and to Cravath, Swaine & Xxxxx,
counsel for the Administrative Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto,
of CCSC, certified as of a recent date by the Secretary of State of the
state of its organization, and a certificate as to the good standing of
CCSC as of a recent date, from such Secretary of State; (ii) a certificate
of the Secretary or Assistant Secretary of CCSC dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy of the by-
laws of CCSC as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly
adopted by the Board of Directors of CCSC authorizing the execution,
delivery and performance of the Loan Documents and the borrowings
hereunder, and that such resolutions have not been modified, rescinded or
amended and are in full force and effect,
62
(C) that the certificate or articles of incorporation of CCSC have not been
amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and
(D) as to the incumbency and specimen signature of each officer executing
any Loan Document or any other document delivered in connection herewith on
behalf of CCSC; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to (ii) above; and (iv) such other documents as
the Lenders or Cravath, Swaine & Xxxxx, counsel for the Administrative
Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate, dated
the Closing Date and signed by a Financial Officer of CCSC, confirming
compliance with the conditions precedent set forth in paragraphs (b) and
(c) of Section 4.02.
(e) The Administrative Agent shall have received all invoiced Fees
and other amounts due and payable pursuant to the Loan Documents on or
prior to the Closing Date, including, to the extent invoiced, reimbursement
or payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrowers hereunder or under any other Loan Document.
(f) No Event of Default or Default (as defined in the Existing
Agreement) shall have occurred and be continuing under the Existing
Agreement
SECTION 4.02. Conditions to Each Loan Other Than an Exchange Offer
----------------------------------------------------
Loan. The agreement of each Lender to make any Loan (such event being called a
-----
"Credit Event") (excluding continuations and conversions of Loans and Exchange
Offer Loans that are subject to Section 4.03) requested to be made by it on any
date is subject to the satisfaction of the following conditions:
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.02.
63
(b) The representations and warranties set forth in Article III
hereof (other than the representations and warranties set forth in Section
3.06) shall be true and correct with the same effect as if then made
(unless stated to relate to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date).
(c) At the time of and immediately after such Credit Event, no Event
of Default or Default shall have occurred and be continuing.
(d) If the relevant Borrower is a Subsidiary Borrower, CCSC shall
have delivered to the Administrative Agent a Subsidiary Borrower Notice and
Designation for such Subsidiary Borrower, countersigned by such Subsidiary
Borrower. CCSC may from time to time deliver a subsequent Subsidiary
Borrower Notice and Designation with respect to such Subsidiary Borrower,
countersigned by such Subsidiary Borrower, for the purpose of terminating
such Subsidiary Borrower's designation as such, as long as on the effective
date of such termination, all Subsidiary Borrower Obligations in respect of
such Subsidiary Borrower shall have been paid in full. In addition, if on
any date a Subsidiary Borrower shall cease to be a Subsidiary, all
Subsidiary Borrower Obligations in respect of such Subsidiary Borrower
shall automatically become due and payable on such date and no further
Loans may be borrowed by such Subsidiary Borrower hereunder.
(e) If the relevant Borrower is a Subsidiary Borrower, the
Administrative Agent shall have received, as promptly as reasonably
practicable after the effective date of the relevant Subsidiary Borrower
Notice and Designation and prior to the date of such Loan, a certificate of
such Subsidiary Borrower, substantially in the form of Exhibit E, with
appropriate insertions and attachments, satisfactory in form and substance
to the Administrative Agent executed by the President, any Vice President,
the Treasurer or any other senior officer and the Secretary or any
Assistant Secretary (or, in either case, comparable officers) of such
Subsidiary Borrower.
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Each Credit Event shall be deemed to constitute a representation and warranty by
the applicable Borrower on the date of such Credit Event, as to the matters
specified in paragraphs (b) and (c) of this Section 4.02.
SECTION 4.03. Conditions to Each Exchange Offer Loan. The agreement
---------------------------------------
of each Lender to make any Exchange Offer Loan requested to be made by it (such
event being a Credit Event) on any date is subject to the satisfaction of the
following conditions:
(a) The Borrower shall have satisfied Section 4.02(a) and, if
applicable, Section 4.02(d) and Section 4.02(e) with respect to such
Exchange Offer Loan.
(b) The Administrative Agent shall have received two Business Days
prior to the Exchange Offer Commencement Date a certificate dated and to be
effective on the Exchange Offer Commencement Date (unless CCSC otherwise
notifies the Administrative Agent prior to the commencement of the Exchange
Offer in which case such certificate shall be deemed to have not been
delivered) and signed by a Financial Officer on behalf of CCSC to the
effect that, to the best of such Financial Officer's knowledge after making
a reasonable investigation, the representations and warranties set forth in
Article III hereof (other than the representations and warranties set forth
in Section 3.06) are true and correct immediately prior to the commencement
of the Exchange Offer with the same effect as if then made (unless stated
to relate to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date), and CCSC
shall not have received prior to the Exchange Offer Commencement Date
notice from the Administrative Agent (which notice shall only be delivered
at the request of the Required Lenders) that such representations and
warranties will not be true and correct at such time (such notice shall
include a reference to such Section or Sections in Article III that will
not be true and correct); for purposes of Section 7.01(b), CCSC shall be
deemed to have made the representations and warranties referred to in the
previous clause as of the Exchange Offer Commencement Date.
65
(c) The Administrative Agent shall have received two Business Days
prior to the Exchange Offer Commencement Date a certificate dated and to be
effective on the Exchange Offer Commencement Date (unless CCSC otherwise
notifies the Administrative Agent prior to the commencement of the Exchange
Offer in which case such certificate shall be deemed to have not been
delivered) and signed by a Financial Officer on behalf of CCSC to the
effect that, to the best of such Financial Officer's knowledge after making
a reasonable investigation, no Event of Default or Default has occurred and
is continuing, immediately prior to the commencement of the Exchange Offer,
and CCSC shall not have received prior to the Exchange Offer Commencement
Date notice from the Administrative Agent (which notice shall only be
delivered at the request of the Required Lenders) that an Event of Default
or Default has occurred and is continuing at such time (such notice shall
include a description of such Event of Default or Default).
(d) The Exchange Offer shall have been commenced on the terms and
conditions set forth in the Exchange Offer Agreement without any material
modifications or waivers that were not approved in writing by the Required
Lenders prior to commencement of the Exchange Offer; provided that, with
--------
respect to Borrowings related to Exchange Offer Loans that are held in
escrow pursuant to Section 4.04, satisfaction of this condition shall occur
prior to the time such Borrowings are released from escrow.
(e) At the time of such Credit Event, (i) there shall not have been
any material modification or waiver of the terms and conditions of the
Exchange Offer since it was commenced and (ii) all such terms and
conditions shall have been satisfied unless the modification or waiver of
such terms and conditions (with respect to either clause (i) or (ii)) was
approved in writing by the Required Lenders; provided that, with respect to
--------
Borrowings related to Exchange Offer Loans that are held in escrow pursuant
to Section 4.04, satisfaction of clause (ii) above shall occur prior to the
time such Borrowings are released from escrow and clause (i) above must
remain true at the time such Borrowings are released from escrow.
66
(f) The Exchange Offer Grace Period shall not have ended; provided
that if such period has ended, Exchange Offer Loans shall be permitted but
shall be subject to the conditions set forth in Section 4.02 rather than
Section 4.03.
SECTION 4.04. Exchange Offer Borrowings in Escrow. (a) In the event
------------------------------------
that a Borrower desires to be advanced Borrowings in French Francs prior to the
date that shares of CMB's common stock are to be purchased pursuant to the
Exchange Offer and prior to satisfaction of the conditions set forth in Section
4.03(d) or Section 4.03(e), such Borrowings will be permitted, but the proceeds
thereof will be held in escrow by the Administrative Agent for the account of
the Borrower until needed by the Borrower for the purchase of shares of CMB's
common stock pursuant to the Exchange Offer and until the conditions set forth
in Section 4.03(d) and Section 4.03(e) are satisfied. If such conditions are
not satisfied prior to the end of the Exchange Offer Grace Period or upon the
request of the Borrower, the proceeds of such Borrowings and any earnings
thereon will be returned pro rata to the Lenders and the Borrower shall
--------
indemnify the Lenders pro rata for any deficiency including interest accrued on
such Borrowings pursuant to Section 2.06 and for any loss or expense of the type
referred to in Section 2.15.
(b) The Administrative Agent will invest any fundsheld in escrow
pursuant to Section 4.04(a) for the account of the Borrower and at the direction
of the Borrower in either obligations of the Republic of France or obligations
backed by its full faith and credit. The Borrower will provide the
Administrative Agent with written notice three Business Days prior to when the
Borrower anticipates satisfying the conditions set forth in Section 4.03(d) and
Section 4.03(e) and requiring the release of the escrowed funds. The release of
funds from escrow shall be subject to the receipt from CCSC of a certificate
signed by a Financial Officer certifying that Section 4.03(d), 4.03(e) and
4.04(a) have been satisfied.
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ARTICLE V. AFFIRMATIVE COVENANTS
SECTION 5.01. Financial Information, Reports, Notices, etc. CCSC
---------------------------------------------
will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of CCSC, a
consolidated balance sheet of CCSC and its Subsidiaries as of the end of
such Fiscal Quarter and consolidated statements of earnings and cash flow
of CCSC and its Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end
of such Fiscal Quarter, certified by a Financial Officer of CCSC, it being
understood and agreed that the delivery of CCSC's Form 10-Q (as filed with
the Securities and Exchange Commission) shall satisfy the requirements set
forth in this clause);
(b) as soon as available and in any event within 120 days after the
end of each Fiscal Year of CCSC, a copy of the annual audit report for such
Fiscal Year for CCSC and its Subsidiaries, including therein a consolidated
balance sheet of CCSC and its Subsidiaries as of the end of such Fiscal
Year and consolidated statements of earnings and cash flow of CCSC and its
Subsidiaries for such Fiscal Year, in each case certified (without any
Impermissible Qualification) in a manner acceptable to the Administrative
Agent and the Required Lenders by Price Waterhouse or other independent
public accountants reasonably acceptable to the Administrative Agent and
the Required Lenders (it being understood and agreed that the delivery of
CCSC's Form 10-K (as filed with the Securities and Exchange Commission)
shall satisfy such delivery requirement in this clause) together with a
certificate from a Financial Officer of CCSC containing a computation in
reasonable detail of, and showing compliance with, each of the financial
ratios and restrictions contained in Section 6.04 and to the effect that,
in making the examination necessary for the signing of such certificate,
such Financial Officer has not become aware of any Default or Event of
Default that has occurred and is continuing, or, if such Financial Officer
has become
68
aware of such Default or Event of Default, describing such Default or Event
of Default and the steps, if any, being taken to cure it;
(c) as soon as available and in any event within 60 days after the end
of each Fiscal Quarter, a Compliance Certificate, executed by a Financial
Officer of CCSC, showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Administrative Agent) compliance with the financial covenants set forth in
Section 6.04 and representing as to the absence of any Default;
(d) as soon as possible and in any event within three Business Days
after becoming aware of the occurrence of each Default, a statement of a
Financial Officer of CCSC setting forth details of such Default and the
action which CCSC has taken and proposes to take with respect thereto;
(e) as soon as possible and in any event within five Business Days
after (i) the occurrence of any adverse development with respect to any
litigation, action, proceeding, or labor controversy described in Section
3.07 which will result in a Material Adverse Effect or (ii) the
commencement of any labor controversy, litigation, action or proceeding of
the type described in Section 3.07, notice thereof and copies of all
documentation relating thereto, which will result in a Material Adverse
Effect;
(f) promptly after the sending or filing thereof, copies of all
reports which CCSC sends to any of its security holders, and all reports,
registration statements (other than on Form S-8 or any successor form) or
other materials which CCSC or any of its Subsidiaries files with the
Securities and Exchange Commission or any national securities exchange;
(g) immediately upon becoming aware of the taking of any specific
actions by CCSC or any other Person to terminate any Pension Plan (other
than a termination pursuant to Section 4041(b) of ERISA which can be
completed without CCSC or any ERISA Affiliate having to provide more than
$1,000,000 in addition to the normal contribution
69
required for the plan year in which termination occurs to make such Pension
Plan sufficient), or the failure to make a required contribution to any
Pension Plan if such failure is sufficient to give rise to a Lien under
section 302(f) of ERISA, or the taking of any action with respect to a
Pension Plan which could result in the requirement that CCSC furnish a bond
or other security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan which could result in the
incurrence by CCSC of any liability, fine or penalty which will have a
Material Adverse Effect, or any increase in the contingent liability of
CCSC with respect to any post-retirement Welfare Plan benefit if the
increase in such contingent liability will result in a Material Adverse
Effect, notice thereof and copies of all documentation relating thereto;
and
(h) such other information respecting the condition or operations,
financial or otherwise, of CCSC or any of its Subsidiaries as any Lender
through the Administrative Agent may from time to time reasonably request.
SECTION 5.02. Compliance with Laws, etc . CCSC will, and will cause
---------------------------
each of its Subsidiaries to, comply in all respects with all applicable laws,
rules, regulations and orders, except where such non-compliance would not have a
Material Adverse Effect, such compliance to include, subject to the foregoing
(without limitation):
(a) the maintenance and preservation of its corporate or partnership
existence and qualification as a foreign corporation or partnership, and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with
GAAP shall have been set aside on its books.
SECTION 5.03. Maintenance of Properties . CCSC will, and will cause
---------------------------
each of its Subsidiaries to, maintain, preserve, protect and keep its material
properties in good repair, working order and condition, and make necessary and
proper repairs,
70
renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times unless CCSC determines in good
faith that the continued maintenance of any of its properties is no longer
economically desirable.
SECTION 5.04. Insurance. CCSC will, and will cause each of its
----------
Subsidiaries to, maintain or cause to be maintained with responsible insurance
companies insurance with respect to its properties material to the business of
CCSC and its Subsidiaries against such casualties and contingencies and of such
types and in such amounts as is customary in the case of similar businesses and
will, upon request of the Administrative Agent, furnish to each Lender at
reasonable intervals a certificate of an Authorized Officer of CCSC setting
forth the nature and extent of all insurance maintained by CCSC and its
Subsidiaries in accordance with this Section; provided that CCSC and its
--------
Subsidiaries may self-insure to the extent customary for similarly situated
corporations or partnerships engaged in the same or similar business.
SECTION 5.05. Books and Records. CCSC will, and will cause each of
------------------
its Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and material transactions and permit the Administrative Agent
and each Lender or any of their respective representatives, at reasonable times
and intervals, to visit all of its offices, to discuss its financial matters
with its officers and independent public accountant and, upon the reasonable
request of the Administrative Agent or a Lender, to examine (and, at the expense
of the relevant Borrower, photocopy extracts from) any of its books or other
corporate or partnership records.
71
SECTION 5.06. Environmental Covenant. CCSC will, and will cause
-----------------------
each of its Subsidiaries to
(a) use and operate all of its facilities and properties in compliance
with all Environmental Laws except for such noncompliance which, singly or
in the aggregate, will not have a Material Adverse Effect, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith, except where the failure to keep such permits,
approvals, certificates, licenses or other authorizations, or any
noncompliance with the provisions thereof, will not have a Material Adverse
Effect, and handle all Hazardous Materials in compliance with all
applicable Environmental Laws, except for any noncompliance that will not
have a Material Adverse Effect;
(b) promptly notify the Administrative Agent and provide copies of all
written inquiries from any local, state or Federal governmental agency,
claims, complaints or notices relating to the condition of its facilities
and properties or compliance with Environmental Laws which will have a
Material Adverse Effect, and promptly cure and have dismissed with
prejudice or contest in good faith any actions and proceedings relating to
material non-compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to evidence
compliance with this Section 5.06.
72
SECTION 5.07. Significant Subsidiaries. In the event that more than
------------------------
10% of the consolidated assets of CCSC and its Subsidiaries shall at any time
following the delivery by CCSC, and during the effectiveness, of a Significant
Subsidiary Election Notice be held by Subsidiaries of CCSC other than
Significant Subsidiaries, CCSC shall deliver to the Administrative Agent written
notice designating one or more Subsidiaries as Significant Subsidiaries such
that, after giving effect to such designation, no more than 10% of the
consolidated assets of CCSC and its Subsidiaries shall be held by Subsidiaries
other than Significant Subsidiaries. CCSC may, following delivery of a
Significant Subsidiary Election Notice, deliver to the Administrative Agent
written notice terminating the effectiveness of such Significant Subsidiary
Election Notice (a "Significant Subsidiary Termination Notice"), provided that
--------
CCSC shall not deliver any Significant Subsidiary Election Notice at any time
after a Significant Subsidiary Termination Notice has been so delivered.
SECTION 5.08. Exchange Offer. CCSC covenants and agrees that,
---------------
if the Lenders make Exchange Offer Loans pursuant to Section 4.03, that with
respect to each Exchange Offer Loan (i) on the Exchange Offer Commencement Date,
the condition precedent contained in Section 4.03(d) was true and correct and
(ii) at the later of the Credit Event related to such Exchange Offer Loan and
the release of the proceeds of such Loan from escrow pursuant to Section 4.04,
the condition precedent contained in Section 4.03(e) was true and correct.
SECTION 5.09. Use of Proceeds. CCSC covenants and agrees to use the
-----------------
proceeds of all Borrowings hereunder only (i) to pay Exchange Offer Cash
Payments, (ii) to repurchase shares of CCSC's capital stock and (iii) for
general corporate purposes; provided that in the case of the use of proceeds
specified in clause (iii) the Exchange Offer has been successfully completed.
ARTICLE VI. NEGATIVE COVENANTS
SECTION 6.01. Transactions with Affiliates. CCSC will not, and will
-----------------------------
not permit any of its Significant Subsidiaries to, enter into, or cause, suffer
or permit to exist, any arrangement
73
or contract with any of its other Affiliates (other than other Subsidiaries and
joint ventures) unless such arrangement or contract is fair and equitable to
CCSC or such Significant Subsidiary based upon the good faith judgment of CCSC's
Board of Directors.
SECTION 6.02. Indebtedness. CCSC will not, and will not permit any
-------------
of its Subsidiaries (other than Unrestricted Subsidiaries) to, create, incur,
assume or suffer to exist or otherwise become or be liable in respect of any
Indebtedness, other than, without duplication, the following:
(a) Indebtedness in respect of the Loans and other Obligations and
Indebtedness incurred under the Existing Agreement;
(b) Indebtedness existing as of the Effective Date which is identified
in Schedule 6.02 and all refinancing and replacements thereof (provided,
that after giving effect to any such refinancing or replacements, CCSC
shall be in compliance with the Leverage Ratio set forth in clause (a) of
Section 6.04);
(c) unsecured Indebtedness incurred by the Subsidiaries payable to
Persons other than CCSC or a Subsidiary in an aggregate amount not to
exceed the greater of $1,150,000,000 and 35% of Total Capitalization at any
time; provided, however, that Indebtedness incurred by a special purpose,
-------- -------
wholly-owned Subsidiary of CCSC that purchases accounts receivable from
CCSC shall be excluded as Indebtedness under this clause (c) to the extent
that such Indebtedness is nonrecourse to CCSC and each Subsidiary and is
not required to be reflected on the consolidated balance sheet of CCSC;
provided further that no Indebtedness permitted by other clauses of this
-------- -------
Section 6.02 shall be deemed to be included in the Indebtedness permitted
by this clause (c);
(d) Indebtedness of CCSC to its Subsidiaries or joint ventures and
Indebtedness of any Subsidiary or joint venture of CCSC to CCSC or any
other Subsidiary or joint venture of CCSC;
74
(e) Indebtedness incurred in the ordinary course of business
(excluding Indebtedness incurred through the borrowing of money);
(f) Indebtedness of a Person existing on the date CCSC or any of its
Subsidiaries acquires such Person which CCSC intends to (i) thereafter
assume as its own obligation, or (ii) refinance in a transaction in which
CCSC becomes the direct obligor of such Indebtedness; provided that CCSC
--------
does in fact assume, or become the direct obligor of, such Indebtedness,
and such Person (and any Subsidiary which shall have become liable in
respect of such Indebtedness) is released from any and all liability,
direct or contingent, in connection with such Indebtedness, within 180 days
following such acquisition and after giving effect thereto, CCSC is in
compliance with clause (i) of this Section 6.02;
(g) Indebtedness of a Person existing on the date CCSC or any of its
Subsidiaries acquires such Person; provided (i) more than 50% in value of
the consideration paid, directly or indirectly, by CCSC and its
Subsidiaries in connection with such acquisition shall have consisted of
equity securities of CCSC or (ii) CCSC shall have caused such Person to
guarantee the Obligations on terms reasonably satisfactory to the
Administrative Agent (and in connection with such guarantee shall have
delivered such evidence of authority, legal opinions, evidence of solvency
and other documents and information as the Administrative Agent shall have
reasonably requested);
(h) Indebtedness of CMB and its subsidiaries in an amount up to the
amount of Indebtedness of CMB and its subsidiaries existing on the date
that CCSC completes the CMB Acquisition; and
(i) other Indebtedness of CCSC; provided that after giving effect to
--------
the incurrence of any such Indebtedness, and the Indebtedness otherwise
permitted by this Section, CCSC shall be in compliance with the Leverage
Ratio set forth in clause (a) of Section 6.04;
provided, however, that, notwithstanding anything to the contrary set forth
-------- -------
above in this Section, the unsecured Indebtedness
75
otherwise permitted by this Section may be secured by the assets of CCSC and its
Subsidiaries to the extent that the Indebtedness so secured does not exceed, in
the aggregate an amount equal to the greater of $655,000,000 and 20% of Total
Capitalization as of the end of the most recently completed Fiscal Quarter.
SECTION 6.03. Liens. CCSC will not, and will not permit any of its
------
Significant Subsidiaries to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens granted prior to the Closing Date to secure payment of
Indebtedness of the type permitted and described in clause (b) of Section
6.02;
(b) Liens for taxes, assessments or other governmental charges or
levies not at the time delinquent or thereafter payable without penalty or
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside
on its books;
(c) Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not overdue
or being diligently contested in good faith by appropriate proceedings and
for which adequate reserves in accordance with GAAP shall have been set
aside on its books;
(d) Liens incurred in the ordinary course of business in connection
with workmen's compensation, unemployment insurance or other forms of
governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(e) judgment Liens in existence less than 30 days after the entry
thereof or with respect to which execution has been stayed or the payment
of which is covered in full (subject to a customary deductible) by
insurance maintained with responsible insurance companies;
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(f) Liens arising in favor of sellers or lessors with respect to
Indebtedness and obligations incurred to purchase or lease fixed or capital
assets; provided, however, that such Liens secure only the Indebtedness and
-------- -------
obligations created thereunder and are limited to the assets purchased or
leased pursuant thereto;
(g) other Liens incidental to the conduct of CCSC's or any of its
Subsidiaries' businesses (including without limitation, Liens on goods
securing trade letters of credit issued in respect of the importation of
goods in the ordinary course of business, or the ownership of any of CCSC's
or any Subsidiary's property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or
credit and which do not in the aggregate materially detract from the value
of CCSC's or any of its Subsidiaries' property or assets or materially
impair the use thereof in the operation of CCSC's or any of its
Subsidiaries' businesses);
(h) Liens in favor of CCSC on assets of its Subsidiaries, and Liens in
favor of Subsidiaries of the Borrower on assets of CCSC;
(i) Liens consisting of capitalized leases;
(j) Liens existing on any real or personal property of any corporation
or other Person at the time it becomes a Subsidiary, or existing at the
time of acquisition upon any real or personal property acquired by CCSC or
any of its Subsidiaries through purchase, merger, consolidation or
otherwise, whether or not assumed by CCSC or such Subsidiary, or placed
upon real or personal property being acquired by CCSC or any Subsidiary to
secure all or a portion of the purchase price thereof or any Indebtedness
incurred to finance all or any portion of such purchase price; provided
--------
that (x) such property is not and shall not thereby become encumbered in
any amount in excess of the lesser of the cost thereof and the fair value
thereof (as determined in good faith by the Board of Directors, President
or chief financial Authorized Officer of CCSC),
77
and (y) any such Lien shall not encumber any other property of CCSC or such
Subsidiary; and
(k) Liens granted by a special purpose, wholly-owned Subsidiary of
CCSC that purchases accounts receivable from CCSC to the extent such Liens
are granted on such accounts receivable to secure the payment of
Indebtedness of such wholly-owned Subsidiary that is permitted by the first
proviso of Section 6.02(c).
(l) Liens that secure the payment of Indebtedness in an aggregate
amount not to exceed the greater of $655,000,000 and 20% of Total
Capitalization, determined as of the end of the most recently completed
Fiscal Quarter; provided that Liens permitted by this clause (l) shall be
--------
inclusive of (and not in addition to) other Liens that secure the payment
of Indebtedness specifically permitted in this Section and the last
sentence of Section 6.02.
SECTION 6.04. Financial Condition. CCSC will not permit:
--------------------
(a) its Leverage Ratio to be greater than 0.70:1 during the CMB
Acquisition Grace Period and greater than 0.60:1 during any other period;
or
(b) its Interest Coverage Ratio to be less than 1.5:1.
SECTION 6.05. Consolidation, Merger, etc . CCSC will not liquidate
----------------------------
or dissolve or consolidate with, or merge into or with, any other corporation,
except that CCSC may consolidate or merge with any other Person; provided that
--------
(i) CCSC is the surviving corporation of such merger, and (ii) both before and
after giving effect to such consolidation or merger, no Event of Default shall
have occurred and be continuing.
78
SECTION 6.06. Restrictive Agreements. CCSC will not, and will not
-----------------------
permit any of its Significant Subsidiaries to, enter into any agreement
(excluding this Agreement, any other Loan Document, the Existing Agreement and
any agreement governing any Indebtedness permitted by clause (b) of Section 6.02
as in effect on the Effective Date) prohibiting
(a) the ability of CCSC to amend or otherwise modify this Agreement or
any other Loan Document; or
(b) the ability of Subsidiaries the aggregate Net Income of which
equals or exceeds 50% of the consolidated Net Income of CCSC and its
Subsidiaries, taken as a whole, to make any payments to CCSC by way of
dividends, advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or other
returns on investments.
ARTICLE VII. EVENTS OF DEFAULT
SECTION 7.01. Listing of Events of Default. Each of the following
-----------------------------
events or occurrences described in this Section 7.01 shall constitute (i) an
"Event of Default", if any Loans or Obligations in respect of Loans are
outstanding, and (ii) an "Event of Termination", if no Loans or Obligations in
respect of Loans are outstanding.
(a) Any Borrower shall default in the payment when due of any
principal of any Loan or any Borrower shall default (and such default shall
continue unremedied for a period of three Business Days) in the payment when due
of any interest on any Loan, or any Borrower shall default after notice
(including, without limitation, notice delivered by way of submission of an
invoice) (and such default shall continue unremedied for a period of five days)
in the payment when due of any fee described in Section 2.08 or of any other
Obligation.
(b) Any representation or warranty of CCSC or any Borrower made or
deemed to be made hereunder or in any other Loan Document or any other writing
or certificate furnished by or on behalf of CCSC or any Borrower to the
Administrative Agent or any Lender for the purposes of or in connection with
this Agreement
79
or any such other Loan Document is or shall be incorrect when made in any
material respect.
(c) CCSC shall default in the due performance and observance of any
of its obligations under clause (a) of Section 5.02 (with respect to the
maintenance and preservation of CCSC's corporate existence) or Article VI and,
with respect to any default by CCSC in the performance of its obligations under
Article VI, any such default (if capable of being remedied within such period)
shall not be remedied within five Business Days after any officer of CCSC
obtains actual knowledge thereof.
(d) CCSC or any Borrower shall default in the due performance and
observance of any other agreement contained herein or in any other Loan
Document, and such default shall continue unremedied for a period of 30 days
after notice thereof shall have been given to CCSC or such Borrower by the
Administrative Agent or any Lender.
(e) A default shall occur (i) in the payment when due (subject to any
applicable grace period), whether by acceleration or otherwise, of any
Indebtedness (other than Indebtedness described in paragraph (a) above) of the
Borrower or any of its Subsidiaries having a principal amount, individually or
in the aggregate, equal to or in excess of $100,000,000 or (ii) in the
performance or observance of any obligation or condition with respect to such
Indebtedness if the effect of such default referred to in this clause (ii) is to
accelerate the maturity of any such Indebtedness; provided, that this clause
--------
(ii) shall not apply to any default under any such Indebtedness of a Subsidiary
existing at the time it is acquired by CCSC or another Subsidiary (or by virtue
of such acquisition) to the extent that (A) such Indebtedness is repaid or
prepaid in full promptly following such acquisition (provided that, in any event
--------
and notwithstanding clause (i) above, such Indebtedness may remain outstanding
for up to 180 days following such acquisition so long as the holders thereof
shall not have exercised remedies, other than acceleration, with respect
thereto) or (B) such Indebtedness is in an aggregate principal amount not equal
to or in excess of $100,000,000.
80
(f) Any judgment or order for the payment of money equal to or in
excess of $100,000,000 shall be rendered against CCSC or any of its Subsidiaries
and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order and not stayed, or
(ii) there shall be any period (after any applicable statutory grace
period) of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect and (A) such judgment is not fully insured against by a policy or
policies of insurance (with reasonable or standard deductible provisions)
issued by an insurer other than an Affiliate of CCSC, or (B) CCSC does not
have sufficient cash reserves to pay in full such judgment.
(g) Any of the following events shall occur with respect to any
Pension Plan:
(i) the taking of any specific actions by CCSC, any member of its
Controlled Group or any other Person to terminate a Pension Plan if, as a
result of such termination, CCSC or any such member could be required to
make a contribution to such Pension Plan, or could reasonably expect to
incur a liability or obligation to such Pension Plan, in excess of
$75,000,000; provided, that, if CCSC or a Subsidiary of CCSC acquires
--------
another Person, then such amount shall be net of the amount of any
reduction in the purchase price of such Person that is specifically
allocable to the assumption by CCSC or such Subsidiary of liability under
such Person's Pension Plan as a result of the acquisition, or
(ii) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA which is
not cured within 20 days from the date that such contribution was due.
(h) Any Change in Control shall occur.
(i) CCSC or any of its Significant Subsidiaries shall
81
(i) become insolvent or generally fail to pay debts as they become
due;
(ii) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for CCSC or any of its
Significant Subsidiaries or substantially all of the property of any
thereof, or make a general assignment for the benefit of creditors;
(iii) in the absence of such application, consent or acquiescence,
permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for CCSC or any of its Significant
Subsidiaries or for a substantial part of the property of any thereof, and
such trustee, receiver, sequestrator or other custodian shall not be
discharged or stayed within 60 days, provided that CCSC and each
Significant Subsidiary hereby expressly authorizes the Administrative Agent
and each Lender to appear in any court conducting any relevant proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents;
(iv) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of CCSC or any of its Significant Subsidiaries, and,
if any such case or proceeding is not commenced by CCSC or such Significant
Subsidiary, such case or proceeding shall be consented to or acquiesced in
by CCSC or such Significant Subsidiary or shall result in the entry of an
order for relief or shall remain for 60 days undismissed and unstayed,
provided that CCSC and each Significant Subsidiary hereby expressly
authorizes the Administrative Agent and each Lender to appear in any court
conducting any such case or proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents; or
(v) take any corporate or partnership action authorizing, or in
furtherance of, any of the foregoing.
82
(j) The obligations of CCSC under Article IX shall cease to be in
full force and effect or CCSC shall repudiate its obligations thereunder, if at
the time of or at any time following such cessation or repudiation, any
Subsidiary Borrower Obligation is outstanding.
SECTION 7.02. Action if Bankruptcy. If any Event of Default
---------------------
described in clauses (i) through (iv) of Section 7.01(i) shall occur, the Credit
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand.
SECTION 7.03. Action if Other Event of Default. If any Event of
---------------------------------
Default (other than any Event of Default described in clauses (i) through (iv)
of Section 7.01(i)) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the direction of
the Required Lenders, shall by written notice to CCSC and each Lender declare
all or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Credit Commitments (if not
theretofore terminated) to be terminated, whereupon the full unpaid amount of
such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment and/or, as the case may be, the Credit Commitments shall
terminate.
SECTION 7.04. Action if Event of Termination. Upon the occurrence
-------------------------------
and continuation of any Event of Termination, the Required Lenders may, by
notice from the Administrative Agent to the Borrower (except if an Event of
Default described in clauses (i) through (v) of Section 7.01(i) shall have
occurred, in which case the Credit Commitment (if not theretofore terminated)
shall, without notice of any kind, automatically terminate) declare their Credit
Commitments terminated, and upon such declaration the Lenders shall have no
further obligation to make any Loans hereunder. Upon such termination of the
Credit Commitments, all accrued fees and expenses shall be immediately due and
payable.
83
ARTICLE VIII. THE ADMINISTRATIVE AGENT
In order to expedite the transactions contemplated by this Agreement,
Chemical Bank is hereby appointed to act as Administrative Agent on behalf of
the Lenders. Each of the Lenders and each assignee of any such Lender, hereby
irrevocably authorizes the Administrative Agent to take such actions on behalf
of such Lender or assignee and to exercise such powers as are specifically
delegated to the Administrative Agent by the terms and provisions hereof and of
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. The Administrative Agent is hereby expressly
authorized by the Lenders, without hereby limiting any implied authority, (a) to
receive on behalf of the Lenders all payments of principal of and interest on
the Loans, all payments and all other amounts due to the Lenders hereunder, and
promptly to distribute to each Lender its proper share of each payment so
received; (b) to give notice on behalf of each of the Lenders to the Borrowers
of any Event of Default specified in this Agreement of which the Administrative
Agent has actual knowledge acquired in connection with its agency hereunder; and
(c) to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrowers pursuant to this Agreement as
received by the Administrative Agent.
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable to the Lenders as such for any action taken
or omitted by any of them except for its or his own gross negligence or wilful
misconduct, or be responsible for any statement, warranty or representation
herein or the contents of any document delivered in connection herewith, or be
required to ascertain or to make any inquiry concerning the performance or
observance by the Borrower of any of the terms, conditions, covenants or
agreements contained in any Loan Document. The Administrative Agent shall not
be responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents or
other instruments or agreements. The Administrative Agent shall in all cases be
fully protected in acting, or refraining from acting, in accordance with written
instructions signed by the Required Lenders and, except as otherwise
specifically provided herein, such instructions and any action or inaction
pursuant thereto shall be binding on all the
84
Lenders. The Administrative Agent shall, in the absence of knowledge to the
contrary, be entitled to rely on any instrument or document believed by it in
good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall have any responsibility to the
Borrowers on account of the failure of or delay in performance or breach by any
Lender of any of its obligations hereunder or to any Lender on account of the
failure of or delay in performance or breach by any other Lender or the
Borrowers of any of their respective obligations hereunder or under any other
Loan Document or in connection herewith or therewith. The Administrative Agent
may execute any and all duties hereunder by or through agents or employees and
shall be entitled to rely upon the advice of legal counsel selected by it with
respect to all matters arising hereunder and shall not be liable for any action
taken or suffered in good faith by it in accordance with the advice of such
counsel.
The Lenders hereby acknowledge that the Administrative Agent shall be
under no duty to take any discretionary action permitted to be taken by it
pursuant to the provisions of this Agreement unless it shall be requested in
writing to do so by the Required Lenders.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided below, the Administrative Agent may resign at
any time by notifying the Lenders and the Borrowers. Upon any such resignation,
the Required Lenders shall have the right to appoint a successor. If no
successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent which shall be a
bank with an office in New York, New York, having a combined capital and surplus
of at least $500,000,000 or an Affiliate of any such bank. Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor bank, such
successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After the
85
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 10.05 shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
With respect to the Loans made by it hereunder, the Administrative
Agent in its individual capacity and not as Administrative Agent shall have the
same rights and powers as any other Lender and may exercise the same as though
it were not the Administrative Agent, and the Administrative Agent and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with CCSC or any Subsidiary or other Affiliate thereof as if it
were not the Administrative Agent.
Each Lender agrees (i) to reimburse the Administrative Agent, on
demand, in the amount of its Commitment Percentage of any expenses incurred for
the benefit of the Lenders by the Administrative Agent, including counsel fees
and compensation of agents and employees paid for services rendered on behalf of
the Lenders, which shall not have been reimbursed by the Borrowers and (ii) to
indemnify and hold harmless the Administrative Agent and any of its directors,
officers, employees or agents, on demand, in the amount of such Commitment
Percentage, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it in its capacity as the Administrative Agent or any of
them in any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have been
reimbursed by the Borrowers; provided that no Lender shall be liable to the
--------
Administrative Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or wilful misconduct of the Administrative
Agent or any of its directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to
86
enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement or any other Loan Document, any
related agreement or any document furnished hereunder or thereunder.
ARTICLE IX. GUARANTEE
SECTION 9.01. Guarantee. In order to induce the Administrative
----------
Agent and the Lenders to execute and deliver this Agreement and to make or
maintain the Loans, and in consideration thereof, CCSC hereby unconditionally
and irrevocably guarantees, as primary obligor and not merely as surety, to the
Administrative Agent, for the ratable benefit of the Lenders, the prompt and
complete payment and performance by each Subsidiary Borrower when due (whether
at stated maturity, by acceleration or otherwise) of the Subsidiary Borrower
Obligations, and CCSC further agrees to pay any and all reasonable expenses
(including, without limitation, all reasonable fees, charges and disbursements
of counsel) which may be paid or incurred by the Administrative Agent or by the
Lenders in enforcing any of their rights under the guarantee contained in this
Article IX. The guarantee contained in this Article IX, subject to Section
9.04, shall remain in full force and effect until the Subsidiary Borrower
Obligations are paid in full and the Credit Commitments are terminated,
notwithstanding that from time to time prior thereto any Subsidiary Borrower may
be free from any Subsidiary Borrower Obligations.
CCSC agrees that whenever, at any time, or from time to time, it shall
make any payment to the Administrative Agent or any Lender on account of its
liability under this Article IX, it will notify the Administrative Agent and
such Lender in writing that such payment is made under the guarantee contained
in this Article IX for such purpose. No payment or payments made by any
Subsidiary Borrower or any other Person or received or collected by the
Administrative Agent or any Lender from any Subsidiary Borrower or any other
Person by virtue of any action or proceeding or any setoff or appropriation or
application, at any
87
time or from time to time, in reduction of or in payment of the Subsidiary
Borrower Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of CCSC under this Article IX which, notwithstanding any
such payment or payments, shall remain liable for the unpaid and outstanding
Subsidiary Borrower Obligations until, subject to Section 9.04, the Subsidiary
Borrower Obligations are paid in full and the Credit Commitments are terminated.
SECTION 9.02. Amendments, etc. with respect to the Subsidiary
-----------------------------------------------
Borrower Obligations. CCSC shall remain obligated under this Article IX
---------------------
notwithstanding that, without any reservation of rights against CCSC, and
without notice to or further assent by CCSC, any demand for payment of or
reduction in the principal amount of any of the Subsidiary Borrower Obligations
made by the Administrative Agent or any Lender may be rescinded by the
Administrative Agent or such Lender, and any of the Subsidiary Borrower
Obligations continued, and the Subsidiary Borrower Obligations, or the liability
of any other party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to
time, in whole or in part, be renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released by the Administrative Agent or any
Lender, and this Agreement and any other documents executed and delivered in
connection herewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Lenders (or the Required Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Subsidiary Borrower Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Administrative Agent nor any
Lender shall have any obligation to protect, secure, perfect or insure any lien
at any time held by it as security for the Subsidiary Borrower Obligations or
for the guarantee contained in this Article IX or any property subject thereto.
SECTION 9.03. Guarantee Absolute and Unconditional. CCSC waives any
-------------------------------------
and all notice of the creation, renewal, extension or accrual of any of the
Subsidiary Borrower Obligations and notice of or proof of reliance by the
Administrative Agent or any Lender upon the guarantee contained
88
in this Article IX or acceptance of the guarantee contained in this Article IX;
the Subsidiary Borrower Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon the guarantee contained in this Article IX,
and all dealings between CCSC or the Subsidiary Borrowers, on the one hand, and
the Administrative Agent and the Lenders, on the other, shall likewise be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Article IX. The Administrative Agent will, to the
extent permitted by applicable law, request payment of any Subsidiary Borrower
Obligation from the applicable Subsidiary Borrower before making any claim
against CCSC under this Article IX, but will have no further obligation to
proceed against a Subsidiary Borrower or to defer for any period a claim against
CCSC hereunder. Except as expressly provided in the preceding sentence, CCSC
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon CCSC or any Subsidiary Borrower with respect to the
Subsidiary Borrower Obligations. The guarantee contained in this Article IX
shall be construed as a continuing, absolute and unconditional guarantee of
payment without regard to (a) the validity or enforceability of this Agreement,
any of the Subsidiary Borrower Obligations or any collateral security therefor
or guarantee or right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender, (b) the legality under
applicable laws of repayment by the relevant Subsidiary Borrower of any
Subsidiary Borrower Obligations or the adoption of any applicable laws
purporting to render any Subsidiary Borrower Obligations null and void, (c) any
defense, setoff or counterclaim (other than a defense of payment or performance)
which may at any time be available to or be asserted by CCSC or the applicable
Subsidiary Borrower against the Administrative Agent or any Lender, or (d) any
other circumstance whatsoever (with or without notice to or knowledge of CCSC or
any Subsidiary Borrower) which constitutes, or might be construed to constitute,
an equitable or legal discharge of any Subsidiary Borrower for any Subsidiary
Borrower Obligations, or of CCSC under the guarantee contained in this Article
IX, in bankruptcy or in any other instance. When the Administrative Agent or any
Lender is pursuing its rights and remedies under this Article IX against CCSC,
the Administrative Agent or any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may
89
have against any Subsidiary Borrower or any other Person or against any
collateral security or guarantee for the Subsidiary Borrower Obligations or any
right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from any Subsidiary Borrower or any such other Person or to realize
upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of any Subsidiary Borrower or any such other Person or of
any such collateral security, guarantee or right of offset, shall not relieve
CCSC of any liability under this Article IX, and shall not impair or affect the
rights and remedies, whether express, implied or available as a matter of law,
of the Administrative Agent and the Lenders against CCSC.
SECTION 9.04. Reinstatement. The guarantee contained in this
--------------
Article IX shall continue to be effective, or be reinstated, as the case may be,
if at any time payment, or any part thereof, of any of the Subsidiary Borrower
Obligations is rescinded or must otherwise be restored or returned by the
Administrative Agent or any Lender upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Subsidiary Borrower or upon or as a result
of the appointment of a receiver, intervenor or conservator of, or trustee or
similar officer for, any Subsidiary Borrower or any substantial part of its
property, or otherwise, all as though such payments had not been made.
SECTION 9.05. Payments. CCSC hereby agrees that any payments in
---------
respect of the Subsidiary Borrower Obligations pursuant to Article IX will be
paid without setoff or counterclaim at the option of the relevant Lender(s), in
French Francs or in the Alternative Currency (if applicable) at the office of
the Administrative Agent specified in Section 10.01.
SECTION 9.06. Independent Obligations. The obligations of CCSC
------------------------
under the guarantee contained in this Article IX are independent of the
obligations of each Subsidiary Borrower, and a separate action or actions may be
brought and prosecuted against CCSC whether or not the relevant Subsidiary
Borrower is joined in any such action or actions. CCSC waives, to the full
extent permitted by law, the benefit of any statute of limitations affecting its
liability hereunder or the
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enforcement thereof. Any payment by the relevant Subsidiary Borrower or other
circumstance which operates to toll any statute of limitations as to such
Subsidiary Borrower shall operate to toll the statute of limitations as to CCSC.
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ARTICLE X. MISCELLANEOUS
SECTION 10.01. Notices. (a) Notices and other communications
--------
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(i) if to CCSC, to it at 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx
00000, attention of Xx. Xxxxx X. X. Xxxxx; (Telecopy No. 215-676-6011);
(ii) if to any Borrower other than CCSC, to it at the address set forth
in the applicable Subsidiary Borrower Notice and Designation, with a copy
to CCSC at the address set forth above;
(iii) if to the Administrative Agent (x) at its London office to
Chemical Investment Bank Limited, 000 Xxxxxx Xxxx, Xxxxxx XX0X 0XX,
attention of the Agency Division, with a copy to Chemical Bank, Grand
Central Tower, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of
Agency Services Group and (y) at its New York office to Chemical Bank
Agency Services Group, Grand Central Tower, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention of Xx. Xxxxxx Xxxxxxx (Telecopy No. (212) 622-
0002), with a copy to Chemical Bank, at 000 Xxxx Xxxxxx, Xxx Xxxx 00000,
Attention of Mr. Xxxxx Xxxx (Telecopy No. 212-972-0009); and
(iv) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to
which such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if delivered by hand or overnight courier service or sent by
telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 10.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 10.01.
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(b) The Borrower shall forthwith on demand indemnify each Lender
against any loss or liability which that Lender incurs (and that Lender shall
not be liable to the Borrower in any respect) solely as a consequence of:
(i) any person to whom any notice or communication under or in
connection with this Agreement is sent by the Borrower by telecopy failing
to receive that notice or communication (unless directly caused by that
person's gross negligence or wilful default); or
(ii) any telecopy communication which reasonably appears to that
Lender to have been sent by the Borrower having in fact been sent by a
person other than the Borrower.
SECTION 10.02. Survival of Agreement. All covenants, agreements,
----------------------
representations and warranties made by the Borrowers herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and shall survive the making by the Lenders
of the Loans, regardless of any investigation made by the Lenders or on their
behalf, and shall continue in full force and effect as long as the principal of
or any accrued interest on any Loan or any Fee or any other amount payable under
this Agreement or any other Loan Document is outstanding and unpaid and so long
as the Credit Commitments have not been terminated.
SECTION 10.03. Binding Effect. This Agreement shall become
---------------
effective when it shall have been executed by CCSC and the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
SECTION 10.04. Successors and Assigns. (a) Whenever in this
-----------------------
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrowers, the
Administrative Agent or the
93
Lenders that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
(b) Each Lender may assign to one or more assignees all or a portion
of its interests, rights and obligations under this Agreement (including all or
a portion of its Credit Commitment and the Loans at the time owing to it);
provided, however, that (i) except in the case of an assignment to a Lender or
-------- -------
an Affiliate of such Lender, CCSC and the Administrative Agent must give their
prior written consent to such assignment (which consent shall not, unless the
amount of such Lender's Credit Commitment after giving effect to such assignment
shall be zero, be unreasonably withheld, it being agreed that CCSC will not be
deemed to act unreasonably if it shall withhold consent on the basis of concerns
relating to a proposed assignee's creditworthiness or reputation), (ii) the
amount of the Credit Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not be less
than 250,000,000 French Francs (not less than 125,000,000 French Francs in the
case of an assignment to an Affiliate of such Lender) and the amount of such
Lender's Credit Commitment after giving effect to such assignment shall not be
less than 250,000,000 French Francs (unless such amount shall be zero), (iii)
except in the case of the assignment to a branch of such Lender, the parties to
each such assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500 and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Upon acceptance and
recording pursuant to paragraph (e) of this Section 10.04, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, provided that the Borrowers shall not be required
--------
to reimburse such assignee pursuant to Section 2.13, 2.14 or 2.15 in an amount
which exceeds the amount that would have been payable thereunder to such
assigning Lender, and (B) the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be
94
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 10.05, as well as to any Fees accrued for its account and
not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner of
the interest being assigned thereby free and clear of any adverse claim and that
its Credit Commitment, and the outstanding balances of its Loans, in each case
without giving effect to assignments thereof which have not become effective,
are as set forth in such Assignment and Acceptance, (ii) except as set forth in
(i) above, such assigning Lender makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement,
any other Loan Document or any other instrument or document furnished pursuant
hereto, or the financial condition of CCSC or any Subsidiary or the performance
or observance by CCSC or any Subsidiary of any of its obligations under this
Agreement, any other Loan Document or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies of
the most recent financial statements, if any, delivered pursuant to Section 5.01
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into such Assignment and
Acceptance; (v) such assignee will independently and without reliance upon the
Administrative Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise
95
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent of
the Borrowers, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Credit Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
--------
shall be conclusive and the Borrowers, the Administrative Agent and the Lenders
may treat each person whose name is recorded in the Register pursuant to the
terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrowers and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire
completed in respect of the assignee (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) above and, if required, the written consent of CCSC and the Administrative
Agent to such assignment, the Administrative Agent shall (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Lenders. No assignment
shall be effective unless it has been recorded in the Register as provided in
this paragraph (e).
(f) Each Lender may without the consent of CCSC or the Administrative
Agent sell participations to one or more banks or other entities in all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Credit Commitment and the Loans owing to it); provided, however,
-------- -------
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to
96
the other parties hereto for the performance of such obligations, (iii) the
participating banks or other entities shall be entitled to the benefit of the
cost protection provisions contained in Sections 2.13, 2.14 and 2.15 and the
provisions of Section 5.01 to the same extent as if they were Lenders (provided
--------
that no participant shall be entitled to receive any greater amount pursuant to
such Sections than the Lender would have been entitled to receive in respect of
the interest transferred had no such transfer occurred) and (iv) the Borrowers,
the Administrative Agent and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
(which each Lender agrees will not be limited by the terms of any participation
agreement or other agreement with a participant) to enforce the obligations of
the Borrowers relating to the Loans and to approve any amendment, modification
or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loans, extending
any scheduled principal payment date or date fixed for the payment of interest
on the Loans or changing or extending the Credit Commitments).
(g) Any Lender or participant may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 10.04, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrowers furnished to such Lender
by or on behalf of the Borrowers; provided that, prior to any such disclosure of
--------
information designated by any Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information.
(h) Any Lender may at any time assign as collateral all or any
portion of its rights under this Agreement to a Federal Reserve Bank to secure
extensions of credit by such Federal Reserve Bank to such Lender; provided that
--------
no such assignment shall release a Lender from any of its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal
97
Reserve Bank, each Borrower shall, at the request of the assigning Lender, duly
execute and deliver to the assigning Lender a promissory note or notes
evidencing the Loans made to such Borrower by the assigning Lender hereunder.
(i) The Borrowers shall not assign or delegate any of their rights or
duties hereunder without the prior written consent of the Administrative Agent
and each Lender, and any attempted assignment without such consent shall be null
and void; provided that any Subsidiary Borrower may assign and delegate any of
--------
its rights or obligations hereunder to one or more other Subsidiary Borrowers
which shall assume the same upon notice and the delivery of a reasonably
satisfactory assignment and assumption agreement to the Administrative Agent but
without any prior consent. With respect to any Loan with respect to which CCSC
is the Borrower, CCSC may assign or delegate (pursuant to an agreement of
assignment and acceptance approved by the Administrative Agent, which approval
shall not be unreasonably withheld) to a Subsidiary Borrower such of CCSC's
rights or obligations pursuant to such Loan as are rights or obligations such
Subsidiary Borrower would have assumed if such Subsidiary Borrower was the
original Borrower with respect to such Loan pursuant to Section 2.01, and CCSC
may not assign or delegate any other rights or obligations with respect to such
Loan or otherwise hereunder, including without limitation CCSC's obligations
pursuant to Section 2.08 or Article IX.
SECTION 10.05. Expenses; Indemnity. (a) The Borrowers agree to pay
--------------------
all reasonable out-of-pocket expenses incurred by the Administrative Agent in
connection with the preparation and administration of this Agreement and the
other Loan Documents or in connection with any amendments, modifications or
waivers of the provisions hereof or thereof requested by the Borrowers (whether
or not the transactions hereby contemplated shall be consummated) or incurred by
the Administrative Agent or any Lender in connection with the enforcement or
protection of their rights in connection with this Agreement, the other Loan
Documents or the Loans made hereunder, including the reasonable fees, charges
and disbursements of Cravath, Swaine & Xxxxx, counsel for the Administrative
Agent, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent or any Lender, provided, however,
-------- -------
98
that the Borrowers shall not be obligated to pay for expenses incurred by the
Administrative Agent or a Lender in connection with the assignment of Loans to
an assignee Lender or the sale of Loans to a participant pursuant to Section
10.04.
(b) The Borrowers agree to indemnify the Administrative Agent, each
Lender, each Affiliate of any of the foregoing persons and each of their
respective directors, officers, employees and agents (each such person being
called an "Indemnitee") against, and to hold each Indemnitee harmless from, any
----------
and all losses, claims, damages, liabilities and related reasonable expenses,
including reasonable counsel fees, charges and disbursements, incurred by or
asserted against any Indemnitee arising out of, in any way connected with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan
Document or any agreement or instrument contemplated thereby, the performance by
the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated
thereby, (ii) the use of the proceeds of the Loans, (iii) any claim, litigation,
investigation or proceeding relating to any of the foregoing, whether or not any
Indemnitee is a party thereto, or (iv) any actual or alleged presence or Release
of Hazardous Materials on any property owned or operated by the Borrower or any
of the Subsidiaries, or any Environmental Claim related in any way to CCSC or
the Subsidiaries; provided that such indemnity shall not, as to any Indemnitee,
--------
be available to the extent that such losses, claims, damages, liabilities or
related reasonable expenses arise (a) in connection with any action by any
stockholder or creditor of the Indemnitee (in its capacity as such), (b) in
connection with any action by any Borrower, by reason of the Indemnitee's
negligence or (c) in connection with any action not brought by any Borrower or
any stockholder or creditor of the Indemnitee (in its capacity as such), by
reason of the Indemnitee's gross negligence or wilful misconduct.
(b) The provisions of this Section 10.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Credit Commitments, the
invalidity or unenforceability of any term or provision of this Agreement or any
other Loan Document, or any investigation made by or on
99
behalf of the Administrative Agent or any Lender. All amounts due under this
Section 10.05 shall be payable on written demand therefor.
SECTION 10.06. Right of Setoff . If an Event of Default shall have
-----------------
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of any Borrower against any of and all the
obligations of such Borrower now or hereafter existing under this Agreement and
other Loan Documents held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or such other Loan
Document and although such obligations may be unmatured. In connection with
exercising its rights pursuant to the previous sentence, a Lender may at any
time use any of the Borrower's credit balances with the Lender to purchase at
the Lender's applicable spot rate of exchange any other currency or currencies
which the Lender considers necessary to reduce or discharge any amount due to
the Lender, and may apply that currency or those currencies in or towards
payment of those amounts. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which
such Lender may have. Each Lender agrees promptly to notify CCSC after making
any such setoff.
SECTION 10.07. Applicable Law . THIS AGREEMENT AND THE OTHER LOAN
----------------
DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER LOAN DOCUMENTS) SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment . (a) No failure or delay of the
--------------------
Administrative Agent or any Lender in exercising any power or right hereunder or
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent and the Lenders hereunder and
under the other Loan Documents are cumulative and are not exclusive of any
rights or remedies which
100
they would otherwise have. No waiver of any provision of this Agreement or any
other Loan Document or consent to any departure by the Borrowers therefrom shall
in any event be effective unless the same shall be permitted by paragraph (b)
below, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No notice or demand on any
Borrower in any case shall entitle such Borrower to any other or further notice
or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrowers and the Required Lenders; provided, however, that
-------- -------
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Loan, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender affected thereby, (ii) change or extend the Credit
Commitment or decrease the Facility Fee of any Lender without the prior written
consent of such Lender, (iii) amend or modify the provisions of Section 2.11,
the provisions of this Section or the definition of "Required Lenders", without
the prior written consent of each Lender, or (iv) release the guarantee
contained in Article IX or modify the provisions of Article IX in a manner
deemed by the Administrative Agent to be material, without the prior written
consent of each Lender; provided further that no such agreement shall amend,
----------------
modify or otherwise affect the rights or duties of the Administrative Agent
hereunder or under any other Loan Document without the prior written consent of
the Administrative Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything
--------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan or participation in
accordance with applicable law, the rate of interest payable in respect of such
Loan or participation hereunder, together with all Charges
101
payable in respect thereof, shall be limited to the Maximum Rate and, to the
extent lawful, the interest and Charges that would have been payable in respect
of such Loan or participation but were not payable as a result of the operation
of this Section shall be cumulated and the interest and Charges payable to such
Lender in respect of other Loans or participations or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement and the other Loan
-----------------
Documents constitute the entire contract between the parties relative to the
subject matter hereof. Any previous agreement among the parties with respect to
the subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
---------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.11.
SECTION 10.12. Severability. In the event any one or more of the
-------------
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace
102
the invalid, illegal or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in
-------------
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together shall
constitute a single contract, and shall become effective as provided in Section
10.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table
---------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) Each
--------------------------------------------
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any
Lender may otherwise have to bring any action or proceeding relating to this
Agreement or the other Loan Documents against any Borrower or its properties in
the courts of any jurisdiction.
(b) Each Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and
103
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this agreement or the other Loan Documents 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.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
(d) Each Subsidiary Borrower hereby designates and directs CCSC at
its offices at 0000 Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, as its agent to
receive service of any and all process and documents on its behalf in any legal
action or proceeding referred to in paragraph (a) of this Section 10.15 in the
State of New York and agrees that service upon such agent shall constitute valid
and effective service upon such Subsidiary Borrower and that failure of CCSC to
give any notice of such service to any such party shall not affect or impair in
any way the validity of such service or of any judgment rendered in any action
or proceeding based thereon.
(e) Each Subsidiary Borrower, to the extent that such Subsidiary
Borrower has or hereafter may acquire any immunity (sovereign or otherwise) from
any legal action, suit or proceeding, from jurisdiction of any court or from
set-off or any legal process (whether service of notice, attachment prior to
judgment, attachment in aid of execution of judgment, execution of judgment or
otherwise) with respect to itself or any of its property or assets, hereby
waives and agrees not to plead or claim such immunity in respect of its
obligations under this Agreement (it being understood that the waivers contained
in this paragraph (e) shall have the fullest extent permitted under the Foreign
Sovereign Immunities Act of 1976, as amended, and are intended to be irrevocable
and not subject to withdrawal for the purposes of such Act).
SECTION 10.16. Judgments Relating to Subsidiary Borrowers. (a) If,
-------------------------------------------
for the purpose of obtaining judgment in any
104
court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures in the relevant jurisdiction the first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
----------
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
-------- --------
Currency") other than the currency in which such sum is stated to be due
--------
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, such Borrower agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
Applicable Creditor against such loss provided that if the amount of the
--------
Agreement Currency so purchased exceeds the sum originally due to the Applicable
Creditor, the Applicable Creditor agrees to remit such excess to such Borrower.
The obligations of the Borrowers contained in this Section 10.16 shall survive
the termination of this Agreement and the payment of all other amounts owing
hereunder.
105
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
CROWN CORK & SEAL COMPANY,
INC.,
by
_________________________
Name:
Title:
Attest:
[Corporate Seal]
by
______________
Name:
Title:
106
CHEMICAL BANK, individually
and as Administrative Agent,
by
/s/ Xxxxx X. Xxxx
------------------------------
__ Name: Xxxxx Xxxx
Title: Vice President
CREDIT SUISSE, NEW YORK BRANCH
AND/OR LONDON BRANCH
by
/s/ Xxxxx X. Xxxxx/
Xxxxxx Xxxxxxx
------------------------------
__ Name: Xxxxx X. Xxxxx/
Xxxxxx Xxxxxxx
Title: Associate/Associate
by
/s/ Xxxxxxx X. Xxxxxx/
Xxxx X. Xxxxxxx
------------------------------
__ Name: Xxxxxxx X. Xxxxxx/
Xxxx X. Xxxxxxx
Title: Associate/Associate
SOCIETE GENERALE,
by
/s/ Xxxx-Xxx Parer
------------------------------
__ Name: Xxxx-Xxx Parer
Title: Executive Vice
President
Structured Finance
Department
ABN AMRO BANK N.V.,
by
/s/ Xxxxxxx O'X. Xxxxx
------------------------------
__ Name: Xxxxxxx O'X. Xxxxx
Title: Vice President
by
/s/ Xxxx X. Xxxxx
------------------------------
__ Name: Xxxx X. Xxxxx
Title: Senior Vice
President
000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION
by
/s/ Xxxxxx Xxxx
------------------------------
__ Name: Xxxxxx Xxxx
Title: Vice President
BANQUE NATIONALE DE PARIS,
by
/s/ Xxxxxxx X. Xxxx
------------------------------
__ Name: Xxxxxxx X. Xxxx
Title: Senior Vice
President
by
/s/ Xxxxxx X. Xxxxxx
------------------------------
__ Name: Xxxxxx X. Xxxxxx
Title: Vice President
CITIBANK N.A.,
by
/s/ Xxxxxx Xxxxxx
------------------------------
__ Name: Xxxxxx Xxxxxx
Title: Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE,
by
/s/ Xxxxxx Xxxxx
-----------------------------
_ Name: Xxxxxx Xxxxx
Title: First Vice President
UNION DE CREDIT POUR LE
DEVELOPPEMENT REGIONAL -
UNICREDIT,
by
/s/ Xxxx-Xxxx Boutaudou
-----------------------------
_ Name: Xxxx-Xxxx Boutaudou
Title: Director General
000
XXXXXXXX XXXX XX, XXX XXXX BRANCH
AND/OR CAYMAN ISLANDS BRANCH
by
/s/ Xxxx X. Xxxxxxxx/
Xxxx-Xxxxx Xxxxxx
------------------------------
__ Name: Xxxx X. Xxxxxxxx/
Xxxx-Xxxxx Xxxxxx
Title: Assistant Vice
President/Vice
President
THE INDUSTRIAL BANK OF JAPAN,
by
/s/ Xxxxxx X. Xxxxxx, Xx.
-----------------------------
_ Name: Xxxxxx X. Xxxxxx, Xx.
Title: Senior Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK,
by
/s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
by
/s/ Xxxxx X. Xxxxxx
-----------------------------
_ Name: Xxxxx X. Xxxxxx
Title: Director, Investment
Banking
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
by
/s/ Xxxxxxxx Xxxxxxx
-----------------------------
_ Name: Xxxxxxxx Xxxxxxx
Title: Joint General
Manager
EXHIBIT A
ADMINISTRATIVE QUESTIONNAIRE
CROWN CORK & SEAL COMPANY, INC.
Please accurately complete the following information and return via FAX to the
attention of Xxxxxx Miclave at Chemical Bank Agency Services Corporation as soon
as possible.
FAX Number: 000-000-0000
LEGAL NAME OF YOUR INSTITUTION TO APPEAR IN DOCUMENTATION:
----------------------------------------------------------
________________________________________________________________________________
GENERAL INFORMATION - ALTERNATE BASE RATE LENDING OFFICE:
---------------------------------------------------------
Institution Name: _____________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
GENERAL INFORMATION - EURODOLLAR LENDING OFFICE:
------------------------------------------------
Institution Name: _____________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
CREDIT CONTACTS/NOTIFICATION METHODS:
-------------------------------------
Primary Contact: ______________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
Phone Number: _________________________________________________________________
FAX Number: ___________________________________________________________________
Backup Credit Contact: ________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
Phone Number: _________________________________________________________________
FAX Number: ___________________________________________________________________
2
TAX WITHHOLDING:
----------------
UNITED STATES
-------------
Non-Resident Alien or Foreign Corporation or Other Foreign Entity
__________ YES __________ NO
If yes, please enclose Form 4224, 1001 or W-8. If no, please
enclose Form W-9.
Tax ID Number _________________________________
UNITED KINGDOM
--------------
Non-Resident Alien or Foreign Corporation or other Foreign Entity
__________ YES __________ NO
Please enclose relevant tax forms.
Tax ID Number _________________________________
CONTACTS/NOTIFICATION METHODS:
------------------------------
ADMINISTRATIVE CONTACTS - BORROWINGS, PAYDOWNS, INTEREST, FEES, ETC.
Contact: ______________________________________________________________________
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
Phone Number: _________________________________________________________________
FAX Number: ___________________________________________________________________
Telex & Answer Back: __________________________________________________________
PAYMENT INSTRUCTIONS:
---------------------
Name of Bank where funds are to be transferred:
_____________________________________________________________________________
Routing Transit/ABA number of Bank where funds are to be transferred:
_____________________________________________________________________________
Name of Account, if applicable:
_____________________________________________________________________________
Account Number: _______________________________________________________________
Additional Information: _______________________________________________________
________________________________________________________________________________
MAILINGS:
---------
Please specify who should receive financial information:
Name: _________________________________________________________________________
3
Street Address: _______________________________________________________________
City, State, Zip Code: ________________________________________________________
It is very important that all of the above information is accurately filled in
---
and returned promptly. If there is someone other than yourself who should
receive this questionnaire, please notify us of their name and FAX number and we
will FAX them a copy of the questionnaire. If you have any questions, please
call Xxxxxx Miclave on (000) 000-0000.
EXHIBIT B
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Term Loan Agreement
dated as of December 1, 1995 (as amended and in effect at the date hereof, the
"Credit Agreement"), among Crown Cork & Seal Company, Inc. ("CCSC"), certain
subsidiaries of CCSC, the Lenders named therein, and Chemical Bank, as
Administrative Agent. Terms defined in the Credit Agreement are used herein
with the same meanings.
1. The Assignor hereby sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse, from
the Assignor, effective as of the Assignment Date set forth on the reverse
hereof, the interests set forth on the reverse hereof (the "Assigned Interest")
in the Assignor's rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the Credit
Commitments of the Assignor on the Assignment Date and the Loans owing to the
Assignor which are outstanding on the Assignment Date. Each of the Assignor and
the Assignee hereby makes and agrees to be bound by all the representations,
warranties and agreements set forth in Section 10.04(c) of the Credit Agreement,
a copy of which has been received by each such party. From and after the
Assignment Date (i) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement.
2. This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is organized under the
laws of a jurisdiction outside the United States, the forms specified in Section
2.14 of the Credit Agreement, duly completed and executed by such Assignee, (ii)
if the Assignee is not already a Lender under the Credit Agreement,
2
an Administrative Questionnaire in the form of Exhibit A to the Credit Agreement
and (iii) a processing and recordation fee of $3,500.
3. This Assignment and Acceptance shall be governed by and construed
in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Assignment Date (may not be
fewer than 5 Business Days
after the Date of Assignment):
Percentage Assigned of Credit
Facility (set forth, to at least 8
decimals, as a percentage of the
Credit Facility and the aggregate
Principal Amount Credit Commitments of all Lenders
Credit Facility Assigned thereunder)
--------------- --------------- ------------------------
Credit Commitment:
$ %
Outstanding Loans
(including
description): $
3
4. This Assignment and Acceptance shall become effective when
counterparts hereof have been executed on behalf of each of the parties required
pursuant to Section 10.04(b) of the Credit Agreement.
The terms set forth above
and on the reverse side
hereof are hereby agreed to: Accepted: */
-
, as Assignor CROWN CORK & SEAL COMPANY,
______________ INC.
By:_______________________
By:_________________________ Name:
Name: Title:
Title: ____________________
, as Assignee Accepted: */
_______________ -
CHEMICAL BANK, as
By:_______________________ Administrative Agent
Name:
Title:
By:_______________________
Name:
Title:
______________________
*/ To be completed only if consents are required under Section 10.04(b) of the
-
Credit Agreement.
EXHIBIT C
[FORM OF]
SIGNIFICANT SUBSIDIARY ELECTION NOTICE
Chemical Bank, as Administrative
Agent for the Lenders referred
to below
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Reference is made to the Revolving Credit and Term Loan Agreement
dated as of December 1, 1995 (as amended, modified, extended or restated from
time to time, the "Credit Agreement"), among Crown Cork & Seal Company, Inc.
("CCSC"), certain subsidiaries of CCSC, the Lenders named therein and Chemical
Bank, as Administrative Agent. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
CCSC hereby gives notice of its decision to undertake the obligations
set forth in Section 5.07 of the Credit Agreement. CCSC acknowledges that in
the event it rescinds this notice pursuant to such Section 5.07, it may not
deliver another such notice at any time.
Very truly yours,
CROWN CORK & SEAL COMPANY,
by _________________________
Name:
Title:
EXHIBIT D
FORM OF
SUBSIDIARY BORROWER NOTICE AND DESIGNATION
To: Chemical Bank, as Administrative Agent
From: Crown Cork & Seal Company, Inc.
1. This Subsidiary Borrower Notice and Designation is being
delivered to you pursuant to Section 4.02(d) of the Revolving Credit and Term
Loan Agreement, dated as of December 1, 1995, among Crown Cork & Seal Company,
Inc., each Subsidiary Borrower party thereto, the Lenders named therein and
Chemical Bank, as Administrative Agent (as the same may be amended, supplemented
or otherwise modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
2. The effective date of this Subsidiary Borrower Notice and
Designation will be [ ].
3. Please be advised by CCSC that the following Subsidiary is hereby
designated as a Subsidiary Borrower and is authorized to use the credit facility
provided for under Section 2.01 of the Credit Agreement. By its execution of
this Subsidiary Borrower Notice and Designation, such undersigned Subsidiary
hereby shall become a party to, and be bound by the provisions of, the Credit
Agreement, having the rights and obligations of a Subsidiary Borrower thereunder
and under the Loan Documents.
Name and Address
of Subsidiary
Borrower
--------
[3. Please be advised that the designation of the following
Subsidiary as a Subsidiary Borrower is terminated effective on the date referred
to in paragraph 2 above.]
2
CROWN CORK & SEAL COMPANY,INC.
by
_________
Name:
Title:
[SUBSIDIARY BORROWER],
by
___________________________
Name:
Title:
Accepted and Acknowledged:
CHEMICAL BANK, as Administrative
Agent
by
____________________________
Name:
Title:
EXHIBIT E
FORM OF SUBSIDIARY BORROWER CLOSING CERTIFICATE/1/
Pursuant to Section 4.02(e) of the Revolving Credit and Term Loan
Agreement dated as of December 1, 1995 (the "Credit Agreement"; unless otherwise
defined herein, terms defined in the Credit Agreement and used herein shall have
the meanings given to them in the Credit Agreement) among Crown Cork & Seal
Company, Inc., a Pennsylvania corporation ("CCSC"), certain subsidiaries of
CCSC, the Lenders named therein, and Chemical Bank, as Administrative Agent, the
undersigned [ ] of [ ] (the "Borrower") hereby certifies on behalf
of the Borrower as follows:
1. The representations and warranties contained in Article III of
the Credit Agreement, to the extent applicable to the Borrower, are true and
correct in all material respects on and as of the date hereof with the same
effect as if made on the date hereof except for (a) representations and
warranties stated to relate to a specific earlier date, in which case such
representations and warranties were true and correct in all material respects as
of such earlier date and (b) representations and warranties contained in Section
3.06 of the Credit Agreement;
2. No Default or Event of Default will result from the making of any
Loans to be made to the Borrower on the date hereof;
3. is and at all times since 19 ,
has been the duly elected and qualified [Assistant] Secretary of the Borrower
and the signature set forth on the signature line for such officer below is such
officer's true genuine signature;
_________________________
1. If necessary, appropiate modifications should be made to references to
officer titles and to paragraphs 4-7 below with respect to Subsidiary Borrowers
2
and the udersigned [Assistant] Secretary of the Borrower hereby certifies as
follows:
4. There are no liquidation or dissolution proceedings pending or to
my knowledge threatened against the Borrower, nor to my knowledge has any other
event occurred threatening the corporate existence of the Borrower;
5. Attached hereto as Exhibit A is a complete and correct copy of
resolutions duly adopted by the Board of Directors (or a duly authorized
committee thereof) of the Borrower on , 19 ; such resolutions have not
in any way been amended, modified, revoked or rescinded and have been in full
force and effect since their adoption to and including the date hereof; such
resolutions are the only corporate proceedings of the Borrower now in force
relating to or affecting the matters referred to therein;
6. Attached hereto as Exhibit B is a complete and correct copy of
the by-laws of the Borrower as in effect at all times since , 19 to and
including the date hereof; and attached hereto as Exhibit C is a true and
complete copy of the articles of association or other organizational documents
of the Borrower as in effect at all times since , 19 to and including the date
hereof; and
3
7. The following persons are now duly elected and qualified officers
of the Borrower holding the offices indicated next to their respective names
below, and such officers have held such offices with the Borrower at all times
since , 19 to and including the date hereof, and the signatures
appearing opposite their respective names below are the true and genuine
signatures of such officers, and each of such officers is duly authorized to
executive and deliver on behalf of the Borrower the Credit Agreement and any
certificate or other document to be delivered by the Borrower pursuant to the
Credit Agreement:
Name Office Signature
---- ------ ---------
_______________ [ ] ______________
_______________ [Assistant] Secretary ______________
IN WITNESS WHEREOF, the undersigned have hereto set our names.
_______________________ _________________________________
Title: [ ] Title: [Assistant] Secretary
Date: , 19
EXHIBIT F
[FORM OF OPINION OF DECHERT PRICE & XXXXXX]
To each of the Lenders party
to the Revolving Credit and
Term Loan Facility
Agreement referred to below and
Chemical Bank, as Administrative Agent
___________, 1995
Ladies and Gentlemen:
We have acted as counsel to Crown Cork & Seal Company, Inc., a
Pennsylvania corporation ("CCSC"), in connection with the execution and delivery
of the Revolving Credit and Term Loan Agreement, dated as of ________ __, 1995
(the "Credit Agreement"), among CCSC, each Subsidiary Borrower (as defined in
the Credit Agreement) and you. This opinion letter is delivered to you pursuant
to Section 4.01(a) of the Credit Agreement. Capitalized terms used herein that
are not defined herein have the respective specified meanings in the Credit
Agreement.
In rendering the opinions set forth below, we have examined executed
originals of the Credit Agreement and the other Loan Documents; the Articles of
Incorporation of CCSC and all amendments thereto (the "Charter"); the Bylaws of
CCSC and all amendments thereto (the "Bylaws"); and a certificate of the
Secretary of the Commonwealth of Pennsylvania, dated __________, 1995, attesting
to the continued corporate existence and good standing of CCSC in the
Commonwealth. In addition, we have examined originals or photostatic or
certified copies of certain of the corporate records and documents of CCSC and
its Subsidiaries, copies of public documents, certificates of
To each of the Lenders party
to the Revolving Credit and
Term Loan Facility
Agreement referred to below and
Chemical Bank, as Administrative Agent
____________, 1995
Page 2
officers of CCSC and public officials, and such other documents as we have
deemed necessary and appropriate as a basis for the opinions hereinafter set
forth.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all corporate
records, documents, instruments and certificates submitted to us as originals
and the conformity to authentic original corporate records, documents,
instruments and certificates of all corporate records, documents, instruments
and certificates submitted to us as certified, conformed or photostatic copies.
As to questions of fact material to our opinions, we have relied upon
representations and warranties of the parties in the Loan Documents and the
other agreements and documents contemplated therein, and on certificates of
officers of CCSC and certain other entities (including, without limitation,
those given pursuant to the Credit Agreement) and of public officials.
We have further assumed that you have the power and authority and have
taken the corporate action necessary to execute and deliver the Credit Agreement
and that no approvals, waivers, filings, notices or consents, governmental or
non-governmental, are required for the valid execution, delivery and performance
by you of the Credit Agreement, and that the Credit Agreement executed by you
constitutes the legal, valid and binding obligation of you.
Based upon the foregoing and subject to the qualifications set forth
above and hereinafter, we are of the opinion that:
1. CCSC is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania.
To each of the Lenders party
to the Revolving Credit and
Term Loan Facility
Agreement referred to below and
Chemical Bank, as Administrative Agent
____________, 1995
Page 3
2. The execution, delivery and performance by CCSC of the Credit
Agreement are within CCSC's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene the Charter or the By-
laws, (ii) to the best of our knowledge, violate any Federal, New York or
Pennsylvania law, rule or regulation applicable to CCSC (including, without
limitation, Regulations G, T, U and X of the Board of Governors of the Federal
Reserve System, insofar as the proceeds of the Loans are used solely for the
purposes set forth in, and in accordance with the provisions of, the Credit
Agreement) or (iii) to the best of our knowledge, result in any breach or
violation of, or constitute a default under, any material agreement or
instrument known to us.
3. The Credit Agreement has been duly executed and delivered by or
on behalf of CCSC and constitutes the legal, valid and binding obligation of
CCSC, enforceable against CCSC in accordance with its terms.
4. No authorization or approval or other action by, and no notice to
or filing with, any Federal, New York or Pennsylvania governmental authority or
regulatory body (other than any applicable securities law filings) is required
in respect of CCSC for the due execution, delivery or performance by CCSC of the
Credit Agreement.
5. CCSC is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company", or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company", within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
To each of the Lenders party
to the Revolving Credit and
Term Loan Facility
Agreement referred to below and
Chemical Bank, as Administrative Agent
____________, 1995
Page 4
6. We are not aware (based upon our inquiry of officers of CCSC) of
any pending or threatened litigation, proceeding or labor controversy affecting
CCSC or any of its properties, business, assets or revenues which will have a
Material Adverse Effect, or which purports to affect the legality, validity or
enforceability of the Credit Agreement.
The foregoing opinions are subject to the following additional
qualifications:
(a) The opinions expressed herein are limited to the laws and
regulations of the United States of America, the State of New York and the
Commonwealth of Pennsylvania.
(b) Our opinions regarding the enforceability of the Credit
Agreement are limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or similar laws or decisions affecting the enforcement of
debtors' obligations and creditors' rights generally, and by general principles
of equity and public policy. Our opinions are also subject to the effect of
certain laws and judicial decisions which may limit the enforceability of
certain provisions of the Credit Agreement, although such limitations do not, in
our judgment, make the remedies provided for therein (taken as a whole)
inadequate for the practical realization of the benefits afforded thereby.
(c) Whenever our opinion with respect to the existence or absence of
facts is indicated based on our knowledge or awareness we are referring to the
actual knowledge of the Dechert Price & Xxxxxx attorneys who have given
substantive attention to the matters concerning CCSC in connection with the
transactions contemplated by the Credit Agreement.
The opinions expressed herein are solely for your benefit in
connection with the performance of the Credit
To each of the Lenders party
to the Revolving Credit and
Term Loan Facility
Agreement referred to below and
Chemical Bank, as Administrative Agent
____________, 1995
Page 5
Agreement, and without our express prior written consent, neither our opinions
nor this opinion letter may be circulated or furnished to or relied upon by any
other person.
Very truly yours,
EXHIBIT G
[FORM OF OPINION OF XXXXXXX X. XXXXXXXXXXXX]
To each of the Lenders party
to the Revolving Credit and
Term Loan Agreement referred to below
and Chemical Bank, as Administrative Agent
___________, 1995
Dear Ladies and Gentlemen:
I am Executive Vice President, Secretary and General Counsel of Crown
Cork & Seal Company, Inc., a Pennsylvania corporation ("CCSC"). This opinion is
being rendered to you pursuant to Section 4.01(a) of the Revolving Credit and
Term Loan Agreement, dated as of ___________, 1995 (the "Credit Agreement"),
among CCSC, each Subsidiary Borrower (as defined therein) and you. Capitalized
terms used herein that are not defined herein have the respective specified
meanings in the Credit Agreement.
I have examined such corporate records of CCSC and other certificates
and documents as I have deemed necessary for the opinion hereinafter set forth.
Based on the foregoing, I am of the opinion that each Significant
Subsidiary of CCSC listed on Schedule A attached hereto has been duly
incorporated and is validly existing and in good standing under the laws of its
respective jurisdiction of incorporation, with corporate power and authority to
own its respective properties and conduct its respective business as now being
conducted; and CCSC and each of its Significant Subsidiaries are duly qualified
to do business as foreign corporations in good standing in all other
jurisdictions in which any such corporation owns or leases substantial
properties or in which the conduct of any such corporation's business requires
such qualification (except where the failure so to qualify would not have a
Material Adverse Effect).
To each of the Lenders party
to the Revolving Credit and
Term Loan Agreement referred to below
and Chemical Bank, as Administrative Agent
_____________, 1995
Page 2
This opinion is limited to the laws of the United States of America
and the Commonwealth of Pennsylvania.
The opinions expressed herein are solely for your benefit in
connection with the performance of the Credit
To each of the Lenders party
to the Revolving Credit and
Term Loan Agreement referred to below
and Chemical Bank, as Administrative Agent
________________, 1995
Page 3
Agreement, and without my express prior written consent, neither my opinions nor
this opinion letter may be circulated or furnished to or relied upon by any
other person.
Very truly yours,
Xxxxxxx X. Xxxxxxxxxxxx
Executive Vice President,
Secretary and General Counsel
SCHEDULE A
----------
Significant Subsidiaries
------------------------
Crown Beverage Packaging, Inc.
Crown Cork & Seal (Delaware) Corporation
CONSTAR International Inc.
CONSTAR Plastics Inc.
Xxx Xxxx Company
EXHIBIT H
COMPLIANCE CERTIFICATE
To: Each of the Lenders (as defined
below) and Chemical
Bank, as Agent for such Lenders
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxx Xxxx
Crown Cork & Seal Company, Inc.
-------------------------------
Gentlemen:
This Compliance Certificate is being delivered pursuant to Section 5.01(c)
of the Revolving Credit and Term Loan Agreement, dated as of December 1, 1995
(as amended, supplemented, amended and restated or otherwise modified, the
"Credit Agreement"), among Crown Cork & Seal Company, Inc., a Pennsylvania
-----------------
corporation ("CCSC"), the Subsidiary Borrowers referred to therein, various
----
financial institutions now or hereafter parties thereto (the "Lenders") and
-------
Chemical Bank, as Administrative Agent for the Lenders (the "Agent"). Terms
-----
used herein without definition shall have the meanings assigned to such terms in
the Credit Agreement.
CCSC hereby certifies, represents and warrants that as of __________, 19__
(the "Computation Date"):
----------------
(a) The Leverage Ratio was __:__, as computed on Attachment 1 hereto and
------------
such ratio [complies] [does not comply] with the provisions of Section 6.04(a)
of the Credit Agreement;
(b) The Interest Coverage Ratio was __:__, as computed on Attachment 2
------------
hereto and such amount [complies] [does not comply] with the provisions of
Section 6.04(b) of the Credit Agreement; and
(c) No Default or Event of Default has occurred and is continuing [other
than as follows:].
IN WITNESS WHEREOF, CCSC has caused this Compliance Certificate to be
executed and delivered by its duly Authorized Officer on this ___ day of
__________, 19__.
CROWN CORK & SEAL COMPANY, INC.
By:________________________
Name:
Title:
-2-
ATTACHMENT 1
1. LEVERAGE RATIO:
--------------
A. Funded Debt: All (i) Loans and
-----------
(ii) all other Indebtedness of CCSC
and its Subsidiaries (including,
without duplication, Contingent
Liabilities relating to such
Indebtedness), on a consolidated
basis, which by its terms
(i) matures or is payable
more than one year from the date on
which it was created, or
(ii) matures within one year
from the date on which it was
created but is renewable or
extendible under terms such that
under GAAP such Indebtedness would
be treated as long-term
indebtedness (other than Funded
Debt which is nonrecourse to CCSC
and its Subsidiaries and giving
effect only to CCSC's or its
Subsidiaries' pro-rata share of
consolidated Indebtedness of joint
ventures).......................... $___________
B. Long-Term Capitalization: The sum
------------------------
of (i) Funded Debt of CCSC and its
Subsidiaries on a consolidated
basis and (ii) the amount,
determined on a consolidated basis,
in the capital stock account
(including the CMB Acquisition
Preferred Stock when issued and
-3-
outstanding) plus (or minus in the
case of a deficit) the additional
paid-in capital and retained
earnings of CCSC and its
Subsidiaries, and in any event,
net of the value of treasury stock in
such capital stock account, plus
accounting liabilities for post-
retirement benefits (FAS 106) and
post-employment benefits (FAS 112),
net of charges for income tax $___________
(FAS 109)...........................
C. LEVERAGE RATIO: The ratio of Item 1
-------------- ------
______:_____
-4-
ATTACHMENT 2
2. **INTEREST COVERAGE RATIO:
-----------------------
A.The sum of all amounts which, in
accordance with GAAP, would be
included on the consolidated
financial statements of CCSC and its
Subsidiaries as
....................................
of any assets)......................
....................................
(iii) to
the extent deducted in determining
Net Income,
provisions
for income taxes
B.EBIT: The sum of Items 2.A.(i) thr
----
$___________
X.Xxx Interest Expense: The
--------------------
aggregate amount of interest expense
of CCSC and its Subsidiaries for the
relevant period which, in accordance
with GAAP, would be included on the
consolidated financial statements of
CCSC and its Subsidiaries, including
without limitation the portion of
any rent paid on Capitalized Lease
_________________
** Calculated as of each Fiscal Quarter end following the Closing Date on the
basis of the Fiscal Quarter then ended and the three immediately
preceding Fiscal Quarters.
-5-
Liabilities which is allocable to
interest expense in accordance with
GAAP, minus the amount of interest
income received by CCSC and its
Subsidiaries for such period.......
$__________
D.INTEREST COVERAGE RATIO: The
-----------------------
ratio of Item 2.B. to Item 2.C................
--------- --------
______:______
EXHIBIT I
CALCULATION OF THE MLA COST
---------------------------
1. Until further
notice, MLA Cost in relation to any Interest Period (or part of an Interest
Period) relating to any particular loan denominated in British Pounds Sterling
(a "Local Currency Loan") or overdue sum will be determined by the
Administrative Agent on the basis of calculations made by each Reference Bank
(as defined below) as at 11:00 a.m. on the first day of that Interest Period by
reference to circumstances existing as at that time, in accordance with the
following formula:
AB + C(B-D) + E(B-F)
--------------------
100 - (A + E)
where:
A = the minimum percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to hold in non-
interest bearing balances with the Bank of England.
B = the percentage rate per annum equal to the rate at which that Reference
Bank is offering British Pounds Sterling deposits for a period equal to
such Interest Period to prime banks in the London interbank market at
or about 11:00 a.m. on the date of calculation.
-6-
2
C = the average percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to maintain as
secured deposits with certain financial institutions recognized for
this purpose by the Bank of England.
D = the lower of B and the percentage rate per annum equal to the rate
offered to that Reference Bank by a financial institution recognized
for the purpose by the Bank of England at or about 11:00 a.m. on the
date of calculation for the placing of a British Pounds Sterling
deposit for a period equal to such Interest Period by that Reference
Bank with that financial institution.
E = the minimum percentage of eligible liabilities which authorized
institutions are then required by the Bank of England to place as
special deposits with the Bank of England.
F = the lower of B and the percentage rate per annum at which interest
is then paid by the Bank of England on special deposits.
For the purpose
of this formula, each of those 6 percentages shall be expressed as a number (not
a percentage).
2. Each Reference
Bank shall use reasonable endeavors to supply to the Administrative Agent on
request the percentage rate per annum so calculated by it on any date. If any
Reference Bank does not do so on request of the Administrative Agent, the
Administrative Agent shall make the relevant determination on the basis of the
quotations supplied by the remaining Reference Banks. If no, or only one,
Reference Bank supplies a quotation, then instead of MLA Cost being payable in
respect of the relevant Interest Period
-2-
3
or part of an Interest Period, each Lender shall be entitled to claim
compensation under Section 2.06(c) of the Credit Agreement.
3. On or before
each MLA calculation date during any Interest Period relating to any Loan or
overdue sum, the Administrative Agent shall determine the arithmetic mean of the
percentage rates per annum so calculated by the Reference Banks on the MLA
calculation date (rounded up if necessary to the nearest fourth decimal place).
The figure so determined shall be the MLA Cost applicable for that Interest
Period or, as the case may be, the relevant part of that Interest Period.
4. In the event of
the introduction of or any change in any present or future reserve asset ratio,
cash ratio, secured deposit, monetary control ratio, special deposit, liquidity
and/or similar requirement imposed from time to time by the Bank of England
and/or any other agency of the United Kingdom (but excluding capital adequacy
requirements or any change in the minimum percentage of eligible liabilities
which authorized institutions are required to maintain in reserve assets, cash
ratio deposits, secured deposits or special deposits) or any change in the
interpretation or application of any such requirement, the Administrative Agent
may at any time give notice to the Borrower and the Lenders of (A) the
amendments determined by the Administrative Agent (after consultation with the
Lenders) to be necessary to the above formula and/or date of calculation so as
to (but only so as to) restore the position in terms of overall return to that
which prevailed before such change occurred and (B) the date as from which the
amended formula and/or date(s) of calculation are to apply. As from the date
notified until any later date notified by the Administrative Agent under this
paragraph 4, MLA Cost shall be calculated in accordance with the formula and/or
-----------
on the date(s) of calculation so notified.
-3-
4
5. The
determination by the Administrative Agent of the MLA Cost for any Interest
Period shall, in the absence of manifest error, be conclusive and binding on the
Lenders, CSSC, any Subsidiary Borrower and any other party.
6. "Reference
---------
Bank" shall mean the London offices of the Administrative Agent, Credit Suisse
----
and Societe Generale; provided, however, if a Reference Bank ceases to be a
Lender or ceases to have a London office, the Administrative Agent shall appoint
another Lender with a London office to replace that Reference Bank.
-4-
EXHIBIT J
FORM OF NOTE
New York, New York
[insert date]
FOR VALUE
RECEIVED, the undersigned, [insert Borrower], a [ ] corporation (the
"Borrower"), hereby unconditionally promises to pay to the order of
(the "Lender"), at the office of Chemical Bank, at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, on the Maturity Date (such term and each other capitalized term
used and not defined herein being used as defined in the Revolving Credit and
Term Loan Agreement dated as of November , 1995 (as the same may be modified,
amended, extended or restated from time to time, the "Credit Agreement"), among
Crown Cork & Seal Company, Inc., the Subsidiary Borrowers thereunder, the
Lenders named therein and Chemical Bank, as Administrative Agent), the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrower pursuant
to Section 2.01 of the Credit Agreement, such payment or payments to be in same
day funds and denominated in the applicable amount of each currency (as
determined pursuant to the Credit Agreement) in which such Loans are denominated
pursuant to Section 2.01 of the Credit Agreement, and to pay interest from the
date hereof on such principal amount from time to time outstanding, in like
funds, at said office, at a rate or rates per annum and payable on such dates as
determined pursuant to the Credit Agreement.
The Borrower
promises to pay interest, on demand, on any overdue principal and, to the extent
permitted by law, overdue interest from their due dates at a rate or rates
determined as set forth in the Credit Agreement.
-1-
2
The Borrower
hereby waives diligence, presentment, demand, protest and notice of any kind
whatsoever. The nonexercise by the holder of any of its rights hereunder in any
particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
All Loans
evidenced by this Note, the applicable currencies in which such Loans are
denominated and all payments and prepayments of the principal hereof and
interest hereon (including the currencies in which such payments, prepayments
and interest are denominated) and the respective dates thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof, or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, however,
-------- -------
that any failure of the holder hereof to make such a notation or any error in
such notation shall not in any manner affect the obligation of the Borrower to
make payments of principal and interest in accordance with the terms of this
Note and the Credit Agreement.
This Note
evidences Loans referred to in the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for optional and mandatory prepayment of the
principal hereof prior to the maturity hereof and for the amendment or waiver of
certain provisions of the Credit Agreement, all upon the terms and conditions
therein specified. This Note is entitled to the benefit of the Credit
Agreement[, including the guarantee thereunder]. THIS NOTE SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND ANY
APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
[insert borrower]
-2-
3
by
-----------------------
Name:
Title:
Attest:
[Corporate Seal]
by
-----------------------
Name:
Title:
-3-
4
Loans and Payments in Dollars
-----------------------------
================================================================================
Payments Unpaid Name of
--------
Amount and Principal Person
Type Maturity Balance Making
--------------------------------------------------------------------------------
of Loan Date Principal Interest of Note Notation
------- ---- --------- -------- ------- --------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
Loans and Payments in Pounds Sterling
-------------------------------------
================================================================================
Payments Unpaid Name of
--------
Amount and Principal Person
Type Maturity Balance Making
--------------------------------------------------------------------------------
of Loan Date Principal Interest of Note Notation
------- ---- --------- -------- ------- --------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
Loans and Payments in French Francs
-----------------------------------
================================================================================
Payments Unpaid Name of
--------
Amount and Principal Person
Type Maturity Balance Making
--------------------------------------------------------------------------------
of Loan Date Principal Interest of Note Notation
------- ---- --------- -------- ------- --------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
-4-
Schedule 2.01
1. Chemical Bank 1,350,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
U.S.A.
Attention: Mr. Xxxxx Xxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
2. Credit Suisse 1,350,000,000
Five Xxxxx Xxxxxx
Xxxxxx X00 0XX
Xxxxxxx
Attention: Client Services Unit
Tel: 00-000-000-0000
Fax: 00-000-000-0000
with a copy to:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X'Xxxxxxx Fox
Tel: 0-000-000-0000
Fax: 0-000-000-0000
3. Societe Generale 1,350,000,000
ENTR/FIN/Acq
Tour Societe Generale
17, cours Valmy
00000 Xxxxx Xx Defense Cedex
France
Attention: Xxxxx x'Xxxxxx,
Xxxxxxxx XxXxxxxx
Tel: 00-0-00-00-00-00
00-0-00-00-00-00
Fax: 00-0-00-00-00-00
4. ABN AMRO Bank N.V. 965,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xx. Xxxxxxx X. Xxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
-1-
2
5. Bank of America National Trust 965,000,000
and Savings Association
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
U.S.A.
Attention: Xx. Xxxxxx Xxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
6. Banque Nationale de Paris 965,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
X.X.X.
Attention: Mr. Xxx Xxxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
7. Citibank N.A. 965,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xx. Xxxxxx X. Xxxxxx
Tel: 0-000-000-0000
Fax: 1-212-[ ]
8. Caisse Nationale de Credit 482,500,000
Agricole
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
U.S.A.
Attention: Mr. Xxxxxx Xxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
9. Union de Credit pour le
Developpement Regional 482,500,000
- Unicredit
000-000 Xxxxxxxxx Xxxxxxx
00000 Xxxxx
Xxxxxx
Attention: Mr. Xxxx-Xxxx Boutaudou
Tel: 00-0-00-00-00-00
Fax: 00-0-00-00-00-00
-2-
3
10. Deutsche Bank AG, New York Branch 965,000,000
and/or Cayman Islands Branch
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xx. Xxxxxxx Xxxxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
11. The Industrial Bank of Japan, Ltd. 965,000,000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
X.X.X.
Attention: Xx. Xxxxx Xxxxxxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
12. Xxxxxx Guaranty Trust Company
of New York 965,000,000
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
U.S.A.
Attention: Xx. Xxxxx Xxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
13. National Westminster Bank plc 965,000,000
000 Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xx. Xxxxx Xxxxxx
Tel: 00-00-000-0000
Fax: 00-00-000-0000
14. The Sumitomo Bank, Limited, 965,000,000
New York Branch
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xx. Xxx X. Xxxxxxxxx
Tel: 0-000-000-0000
Fax: 0-000-000-0000
-3-
