AMENDMENT AND RESTATEMENT dated as of August 5, to and in respect of
the Credit Agreement dated as of February 4, 1997, as previously
amended and restated on March 2, 2001, and February 4, 2002 (the
"Credit Agreement"), among CROWN CORK & SEAL COMPANY, INC., a
-----------------
Pennsylvania corporation ("CCSC"); each of the Subsidiary Borrowers
----
referred to therein (the Subsidiary Borrowers and CCSC being
collectively called the "Borrowers"); the financial institutions party
---------
thereto as lenders (the "Lenders"); and JPMORGAN CHASE BANK (formerly
-------
known as THE CHASE MANHATTAN BANK), a New York banking corporation, as
administrative agent (in such capacity, the "Administrative Agent")
---------------------
for the Lenders.
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Bank have
extended credit to the Borrowers, and have agreed to extend credit to the
Borrowers, in each case pursuant to the terms and subject to the conditions set
forth therein.
B. The Borrowers have requested that the Lenders agree to amend and restate
the Credit Agreement as set forth herein.
C. The Lenders are willing so to amend and restate the Credit Agreement,
pursuant to the terms and subject to the conditions set forth herein.
D. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Credit Agreement (as amended and restated
hereby).
Accordingly, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Amendment and Restatement. Upon satisfaction of the conditions
-------------------------
set forth in Section 4 below, the Credit Agreement is hereby deemed to be
amended and restated in its entirety in the form attached hereto as Exhibit A
(without changing the exhibits and schedules thereto, it being understood that
such exhibits and schedules are not attached for convenience only).
SECTION 2. Consent to Extension of Maturity. Each Term Lender that executes
--------------------------------
and delivers a counterpart of this Amendment and Restatement hereby consents to
the extension of the maturity of its outstanding Term Loans (in the principal
amount set forth beneath its signature on the counterpart of this Amendment and
Restatement) to the Extended Term Loan Maturity Date (as defined in Exhibit A
hereto); provided that such extension of maturity shall not become effective
unless the conditions set forth in Section 4 below are satisfied.
SECTION 3. Representations and Warranties. Each of the Borrowers represents
------------------------------
and warrants to the Administrative Agent and to each of the Lenders that:
(a) This Amendment and Restatement has been duly authorized, executed
and delivered by the Borrowers and constitutes their legal, valid and
binding obligation, enforceable in accordance with its terms, except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general principles of equity.
(b) The representations and warranties of the Borrowers set forth in
the Loan Documents are true and correct in all material respects on
and as of the date hereof, except to the extent such representations
and warranties expressly relate to an earlier date, in which case such
representations and warranties, were, to such extent, true and correct
in all material respects as of such earlier date.
(c) On the date hereof and immediately after giving effect to this
Amendment and Restatement, no Default has occurred and is continuing.
SECTION 4. Conditions to Effectiveness. This Amendment and Restatement
----------------------------
shall become effective when the Administrative Agent shall have received (a)
counterparts of this Amendment and Restatement that, when taken together, bear
the signatures of the Borrowers and the Required Lenders, and (b) payment of all
fees payable by CCSC in connection with this Amendment and Restatement, as
separately agreed.
SECTION 5. Credit Agreement. Except as otherwise specified, any reference
----------------
in any Loan Document to the Credit Agreement shall mean the Credit Agreement as
amended and restated hereby.
SECTION 6. APPLICABLE LAW. THIS AMENDMENT AND RESTATEMENT SHALL BE GOVERNED
--------------
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment and Restatement may be executed in
------------
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute one agreement. Delivery of an
executed signature page to this Amendment and Restatement by facsimile
transmission shall be effective as delivery of a manually signed counterpart of
this Amendment and Restatement.
SECTION 8. Expenses. The Borrowers agree to reimburse the Administrative
--------
Agent for its out-of-pocket expenses in connection with this Amendment and
Restatement, including the reasonable fees, charges and disbursements of
Cravath, Swaine & Moore, counsel for the Administrative Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Restatement to be duly executed by their respective authorized officers as of
the day and year first written above.
CROWN CORK & SEAL COMPANY, INC.,
by /s/ Alan W. Rutherford
----------------------------
Name: Alan W. Rutherford
Title: Vice Chairman of the Board,
Executive Vice President and
Chief Financial Officer
Attest:
[Corporate Seal]
by /s/ Rose Haselroth
--------------------
Name: Rose Haselroth
Title: Assistant Secretary
SIGNATURE PAGE TO
AMENDMENT
To approve the Amendment and Restatement:
Name of Institution:
AG CAPITAL FUNDING PARTNERS, L.P.
by /s/ John W. Fraser
-------------------------
Name: John W. Fraser
Title: Managing Director
Name of Institution:
ARAB BANK PLC
by /s/ William Marquardt
-------------------------
Name: William Marquardt
Title: Vice President
Name of Institution:
AVENUE SPECIAL SITUATIONS FUND II, LP
by /s/ Sonia Gardner
-------------------------
Name: Sonia Gardner
Title: General Partner
Name of Institution:
BANK OF AMERICA, N.A.
by /s/ Michael J. McKenney
-------------------------
Name: Michael J. McKenney
Title: Managing Director
Name of Institution:
BILL & MELINDA GATES FOUNDATION
by: David L. Babson & Company Inc.
as Investment Advisor
by /s/ Mary Ann McGrath
-------------------------
Name: Mary Ann McGrath
Title: Managing Director
Name of Institution:
BNP PARIBAS (as successor in interest to
Banque Nationale de Paris)
by /s/ Arnaud Collin du Bocage
-----------------------------
Name: Arnaud Collin du Bocage
Title:
by /s/ Richard Pace
-------------------------
Name: Richard Pace
Title: Director
Name of Institution:
CITICORP USA, INC.
by /s/ Arnold Y. Wong
-------------------------
Name: Arnold Y. Wong
Title: Vice President
Name of Institution:
CREDIT AGRICOLE INDOSUEZ
by /s/ Kathleen M. Sweeney
-------------------------
Name: Kathleen M. Sweeney
Title: Vice President
by /s/ Kathleen M. Sweeney
-------------------------
Name: Kathleen M. Sweeney
Title: Vice President
Name of Institution:
CREDIT SUISSE ASSET MANAGEMENT
by /s/ John G. Popp
-------------------------
Name: John G. Popp
Title: Managing Director
Name of Institution:
CREDIT SUISSE FIRST BOSTON
by /s/ Jay Chall
------------------
Name: Jay Chall
Title: Director
by /s/ Jeffrey Bernstein
---------------------
Name: Jeffrey Bernstein
Title: Vice President
Name of Institution:
DEUTSCHE BANK AG NEW YORK BRANCH
by /s/ Christian Dallwitz
--------------
Name: Christian Dallwitz
Title: Director
by /s/ Oliver Schwarz
-------------------------
Name: Oliver Schwarz
Title: Vice President
Name of Institution:
EATON VANCE INSTITUTIONAL SENIOR LOAN FUND
by Eaton Vance Management
as Investment Advisor
by /s/ Payson F. Swaffield
--------------------------
Name: Payson F. Swaffield
Title: Vice President
Name of Institution:
EATON VANCE SENIOR INCOME TRUST by Eaton Vance
Managment as Investment Advisor
by /s/ Payson F. Swaffield
---------------------------
Name: Payson F. Swaffield
Title: Vice President
Name of Institution:
ERSTE BANK
by /s/ John S. Runnion
-------------------------
Name: John S. Runnion
Title: Managing Director
Name of Institution:
FOOTHILL INCOME TRUST II, L.P. by Foothill
Income Trust General Partner,LLC,
its General Partner
by /s/ Sean T. Dixon
-------------------------
Name: Sean T. Dixon
Title: Managing Director
Name of Institution:
FORTIS (USA) FINANCE LLC
by /s/ Eddie Matthews
-------------------------
Name: Eddie Matthews
Title: Senior Vice President
by /s/ Kathleen De Lathauwes
-------------------------
Name: Kathleen De Lathauwes
Title: Vice President
Name of Institution:
FRANKLIN CLO I, LIMITED
by /s/ Richard D'Addario
-------------------------
Name: Richard D'Addario
Title: Senior Vice President
Name of Institution:
FRANKLIN CLO II, LIMITED
by /s/ Richard D'Addario
-------------------------
Name: Richard D'Addario
Title: Senior Vice President
Name of Institution:
FRANKLIN FLOATING RATE DAILY ACCESS FUND
by /s/ Richard D'Addario
-------------------------
Name: Richard D'Addario
Title: Senior Vice President
Name of Institution:
FRANKLIN FLOATING RATE MASTER SERIES
by /s/ Richard D'Addario
-------------------------
Name: Richard D'Addario
Title: Senior Vice President
Name of Institution:
FRANKLIN FLOATING RATE TRUST
by /s/ Richard D'Addario
-------------------------
Name: Richard D'Addario
Title: Senior Vice President
Name of Institution:
GALAXY CLO 1999-1, LTD.
by /s/ John G. Lapham,
-------------------------
Name: John G. Lapham, III
Title: Authorized Agent
Name of Institution:
GRAYSON & CO by Boston Management
and Research as Investment Advisor
by /s/ Payson F. Swaffield
-------------------------
Name: Payson F. Swaffield
Title: Vice President
Name of Institution:
INTESABCI NEW YORK BRANCH
by /s/ Charles Dougherty
-------------------------
Name: Charles Dougherty
Title: Vice President
by /s/ J. Dickerhof
-------------------------
Name: J. Dickerhof
Title: Vice President
Name of Institution:
KZH SOLEIL LLC
by /s/ Susan Lee
-------------------------
Name: Susan Lee
Title: Authorized Agent
Name of Institution:
KZH SOLEIL-2 LLC
by /s/ Susan Lee
-------------------------
Name: Susan Lee
Title: Authorized Agent
Name of Institution:
THE MAINSTAY FUNDS (MACKAY SHIELDS LLC)
on behalf of its High Yield Corporate Bond
Fund Series by Mackay Shields LLC,
its Investment Advisor
by /s/ Richard A. Nisi
-------------------------
Name: Richard A. Nisi
Title: General Counsel
Name of Institution:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
by: David L.Babson & Company Inc.
as Investment Advisor
by /s/ Mary Ann McCarthy
-------------------------
Name: Mary Ann McCarthy
Title: Managing Director
Name of Institution:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
by /s/ Meredith LipSher
-------------------------
Name: Meredith LipSher
Title: GMI Debt Markets Counsel
Name of Institution:
MIZUHO CORPORATE BANK, LTD.
by /s/ Akihiko Mabuchi
-------------------------
Name: Akihiko Mabuchi
Title: Senior Vice President
Name of Institution:
MOORE CAPITAL MANAGEMENT INC.
by /s/ Anthony Gallagher
-------------------------
Name: Anthony Gallagher
Title: Director of Operations
Name of Institution:
NORDEA BANK FINLAND PLC
by /s/ Ulf Forsstein
-------------------------
Name: Ulf Forsstein
Title: Vice President
by /s/ Thomas P. Hickey
-------------------------
Name: Thomas P. Hickey
Title: Vice President
Name of Institution:
NORTHERN TRUST COMPANY
by /s/ Barbara B. Tuszynska
-------------------------
Name: Barbara B. Tuszynska
Title: Senior Vice President
Name of Institution:
NORTHWOODS CAPITAL, LIMITED by:
Angelo Gordon & Co., L.P., as
Collateral Manager
by /s/ John W. Fraser
-------------------------
Name: John W. Fraser
Title: Managing Director
Name of Institution:
NORTHWOODS CAPITAL II, LIMITED by:
Angelo Gordon & Co., L.P., as
Collateral Manager
by /s/ John W. Fraser
-------------------------
Name: John W. Fraser
Title: Managing Director
Name of Institution:
NORTHWOODS CAPITAL III, LIMITED
by: Angelo Gordon & Co., L.P., as
Collateral Manager
by /s/ John W. Fraser
-------------------------
Name: John W. Frase
Title: Managing Director
Name of Institution:
OXFORD STRATEGIC INCOME FUND by
Eaton Vance Managment as
Investment Advisor
by /s/ Payson Swaffield
-------------------------
Name: Payson Swaffield
Title: Vice President
Name of Institution:
PROTECTIVE LIFE INSURANCE COMPANY
by /s/ Richard J. Bielen
-------------------------
Name: Richard J. Bielen
Title: Senior Vice President, CIO,
Treasurer
Name of Institution:
ROYAL BANK OF CANADA
by /s/ Raymond Chang
-------------------------
Name: Raymond Chang
Title: Vice President
Name of Institution:
SANPAOLO IMI, S.P.A.
by /s/ Carlo Persico
-------------------------
Name: Carlo Persico
Title: General Manager
by /s/ Luca Sacchi
-------------------------
Name: Luca Sacchi
Title: Vice President
Name of Institution:
SENIOR DEBT PORTFOLIO by Boston
Management and Research as
Investment Advisor
by /s/ Payson F. Swaffield
-------------------------
Name: Payson F. Swaffield
Title: Vice President
Name of Institution:
SUMITOMO MITSUI BANKING CORPORATION
by /s/ John C. Kissinger
-------------------------
Name: John C. Kissinger
Title: General Manager
Name of Institution:
SUNAMERICA LIFE INSURANCE COMPANY
by /s/ John G. Lapham, III
-------------------------
Name: John G. Lapham, III
Title: Authorized Agent
Name of Institution:
SUNTRUST BANK
by /s/ Maria Mamilovich
-------------------------
Name: Maria Mamilovich
Title: Director
Name of Institution:
UBS AG, STAMFORD BRANCH
by /s/ Jennifer L. Poccia
-------------------------
Name: Jennifer L. Poccia
Title: Associate Director
by /s/ Anthony N. Joseph
-------------------------
Name: Anthony N. Joseph
Title: Associate Director
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by /s/ Charles O. Freedgood
-------------------------
Name: Charles O. Freedgood
Title: Managing Director
EXECUTION COPY
EXHIBIT A
to Amended and Restated
Credit Agreement dated
as of August 5, 2002
CREDIT AGREEMENT
Dated as of February 4, 1997
As Amended and Restated as of August 5, 2002
Among
CROWN CORK & SEAL COMPANY, INC.,
THE SUBSIDIARY BORROWERS REFERRED TO HEREIN,
THE LENDERS REFERRED TO HEREIN,
And
JPMORGAN CHASE BANK
(formerly known as THE CHASE MANHATTAN BANK)
as Administrative Agent
-------------------
JPMORGAN SECURITIES INC.,
as Lead Arranger and Bookrunner
================================================================================
[CSM Ref. 6701-124]
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms...................................................1
SECTION 1.02. Classification of Loans and Borrowings.........................36
SECTION 1.03. Terms Generally................................................36
ARTICLE II
The Credits
-----------
SECTION 2.01. Credit Commitments.............................................37
SECTION 2.02. Procedure for Borrowing; Assigned Dollar Values................39
SECTION 2.03. Conversion and Continuation Options for Loans..................41
SECTION 2.04. Swingline Loans................................................42
SECTION 2.05. Prepayments of Loans...........................................45
SECTION 2.06. Letters of Credit..............................................47
SECTION 2.07. [Reserved].....................................................52
SECTION 2.08. Repayment of Loans; Evidence of Debt...........................52
SECTION 2.09. Interest Rates and Payment Dates...............................54
SECTION 2.10. Computation of Interest........................................55
SECTION 2.11. Fees...........................................................55
SECTION 2.12. Termination, Reduction or Adjustment of Commitments............57
SECTION 2.13. Inability to Determine Interest Rate; Unavailability of Deposits;
Inadequacy of Interest Rate..................................58
SECTION 2.14. Pro Rata Treatment and Payments................................62
SECTION 2.15. Illegality.....................................................64
SECTION 2.16. Requirements of Law............................................65
SECTION 2.17. Taxes..........................................................66
SECTION 2.18. Indemnity......................................................69
SECTION 2.19. Change of Lending Office.......................................70
SECTION 2.20. Sharing of Setoffs.............................................70
SECTION 2.21. Assignment of Commitments Under Certain Circumstances..........71
ARTICLE III
Representations and Warranties................................................72
- ------------------------------
SECTION 3.01. Organization, etc..............................................72
SECTION 3.02. Due Authorization, Non-Contravention, etc......................72
SECTION 3.03. Government Approval, Regulation, etc...........................73
ii
SECTION 3.04. Validity, etc..................................................73
SECTION 3.05. Financial Information..........................................73
SECTION 3.06. No Material Adverse Change.....................................74
SECTION 3.07. Litigation.....................................................74
SECTION 3.08. Compliance with Laws and Agreements............................74
SECTION 3.09. Subsidiaries...................................................74
SECTION 3.10. Ownership of Properties........................................75
SECTION 3.11. Taxes..........................................................75
SECTION 3.12. Pension and Welfare Plans......................................75
SECTION 3.13. Environmental Warranties.......................................75
SECTION 3.14. Regulations U and X............................................77
SECTION 3.15. Disclosure; Accuracy of Information............................77
SECTION 3.16. Insurance......................................................77
SECTION 3.17. Labor Matters..................................................77
SECTION 3.18. Solvency.......................................................78
SECTION 3.19. Security Documents.............................................78
ARTICLE IV
Conditions....................................................................80
- ----------
SECTION 4.01. Effective Date.................................................80
SECTION 4.02. Conditions to Each Credit Event................................83
ARTICLE V
Affirmative Covenants.........................................................85
- ---------------------
SECTION 5.01. Financial Information, Reports, Notices, etc...................85
SECTION 5.02. Compliance with Laws, etc......................................88
SECTION 5.03. Maintenance of Properties......................................88
SECTION 5.04. Insurance......................................................88
SECTION 5.05. Books and Records..............................................89
SECTION 5.06. Environmental Covenant.........................................89
SECTION 5.07. Information Regarding Collateral...............................90
SECTION 5.08. Existence; Conduct of Business.................................91
SECTION 5.09. Payment of Obligations.........................................91
SECTION 5.10. Casualty and Condemnation......................................91
SECTION 5.11. Additional Subsidiaries; Holding Company Reorganization........91
SECTION 5.12. Further Assurances.............................................93
SECTION 5.13. Use of Proceeds................................................94
SECTION 5.14. Release of Collateral.......................................94
ARTICLE VI
Negative Covenants............................................................95
- ------------------
SECTION 6.01. Indebtedness; Certain Equity Securities........................95
SECTION 6.02. Liens..........................................................97
SECTION 6.03. Fundamental Changes............................................98
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions......99
SECTION 6.05. Asset Sales...................................................101
iii
SECTION 6.06. Sale and Leaseback Transactions...............................102
SECTION 6.07. Hedging Agreements............................................102
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness.........102
SECTION 6.09. Transactions with Affiliates..................................103
SECTION 6.10. Restrictive Agreements........................................104
SECTION 6.11. Amendment of Material Documents...............................104
SECTION 6.12. Interest Expense Coverage Ratio...............................105
SECTION 6.13. Leverage Ratio................................................105
SECTION 6.14. Asbestos Payments.............................................105
SECTION 6.15. Debt Repayment Funds..........................................105
ARTICLE VII
Events of Default............................................................106
- -----------------
SECTION 7.01. Listing of Events of Default..................................106
SECTION 7.02. Action if Bankruptcy..........................................109
SECTION 7.03. Action if Other Event of Default..............................110
SECTION 7.04. Action if Event of Termination................................110
ARTICLE VIII
The Agents...................................................................110
- ----------
ARTICLE IX
Guarantee....................................................................113
- ---------
SECTION 9.01. Guarantee.....................................................113
SECTION 9.02. Amendments, etc., with respect to the Subsidiary Borrower
Obligations................................................113
SECTION 9.03. Guarantee Absolute and Unconditional..........................114
SECTION 9.04. Reinstatement.................................................115
SECTION 9.05. Payments......................................................116
SECTION 9.06. Independent Obligations.......................................116
ARTICLE X
Miscellaneous................................................................116
- -------------
SECTION 10.01. Notices......................................................116
SECTION 10.02. Survival of Agreement........................................118
SECTION 10.03. Binding Effect...............................................118
SECTION 10.04. Successors and Assigns.......................................118
SECTION 10.05. Expenses; Indemnity..........................................123
SECTION 10.06. Right of Setoff..............................................126
SECTION 10.07. Applicable Law...............................................126
SECTION 10.08. Waivers; Amendment...........................................126
SECTION 10.09. Interest Rate................................................128
SECTION 10.10. Entire Agreement.............................................129
SECTION 10.11. WAIVER OF JURY TRIAL.........................................129
SECTION 10.12. Severability.................................................129
SECTION 10.13. Counterparts.................................................130
SECTION 10.14. Headings.....................................................130
iv
SECTION 10.15. Jurisdiction; Consent to Service of Process..................130
SECTION 10.16. Judgments Relating to Subsidiary Borrowers...................131
SECTION 10.17. Confidentiality..............................................132
SECTION 10.18. Joint Liability of French Borrowers..........................133
EXHIBIT A......... Form of Administrative Questionnaire
EXHIBIT B......... Form of Assignment and Acceptance
EXHIBIT C......... Form of Collateral Sharing Agreement
EXHIBIT D......... Form of Compliance Certificate
EXHIBIT E......... Form of Indemnity, Subrogation and Contribution Agreement
EXHIBIT F......... Calculation of MLA Costs
EXHIBIT G......... Form of Note
EXHIBIT H......... Form of Subsidiary Borrower Closing Certificate
EXHIBIT I......... Form of Subsidiary Borrower Notice and Designation
EXHIBIT J......... Form of U.S. Guarantee Agreement
EXHIBIT K......... Form of U.S. Pledge Agreement
EXHIBIT L......... Form of U.S. Security Agreement
EXHIBIT M......... Form of Opinion of Dechert
EXHIBIT O......... Form of Opinion of Holters & Elsing
EXHIBIT P......... Form of French Solvency Certificate
EXHIBIT Q......... Form of Auditors' Certificate
SCHEDULE 1.01(a).. Mortgaged Properties
SCHEDULE 1.01(b).. Subsidiary Borrowers
SCHEDULE 1.01(c).. Existing Letters of Credit
SCHEDULE 2.01..... Lenders and Commitments
SCHEDULE 3.09..... Subsidiaries
SCHEDULE 3.19(a).. Required Actions-Foreign Stock Pledges
SCHEDULE 3.19(b).. Required Actions-Foreign Collateral
SCHEDULE 3.19(d).. Mortgage Filing Offices
SCHEDULE 6.01 ... Indebtedness
SCHEDULE 6.02..... Existing Liens
SCHEDULE 6.04..... Existing Investments
SCHEDULE 6.05..... Permitted Divestitures
SCHEDULE 6.10..... Existing Restrictions
CREDIT AGREEMENT dated as of February 4, 1997, as amended and
restated as of August 5, 2002, 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"); and JP
-------
MORGAN CHASE BANK (formerly known as THE CHASE MANHATTAN BANK), a
New York banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders.
--------------------
The parties hereto previously amended and restated the terms and provisions
of the Revolving Credit and Competitive Advance Facility Agreement dated as of
February 4, 1997 (the "Original Credit Agreement"), among CCSC, certain of the
--------------------------
Subsidiary Borrowers, the existing lenders thereunder (the "Existing Lenders"),
----------------
the Administrative Agent, Societe Generale, as Documentation Agent, and Bank of
America Illinois, as Syndication Agent, pursuant to an amendment and restatement
of the Original Credit Agreement as of March 2, 2001 (the "Original Restated
------------------
Credit Agreement"), and the Original Restated Credit Agreement was subsequently
- ----------------
amended and restated as of February 4, 2002 (the "Existing Credit Agreement").
------------------------------
The parties hereto now desire to amend and restate the Existing Credit
Agreement in the form hereof. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms
-------------
shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
-------------
"ABR Loan" shall mean any Loan denominated in Dollars and bearing interest
--------
at the Alternate Base Rate in accordance with the provisions of Article II.
2
"Adjusted LIBO Rate" means, with respect to any Eurocurrency Borrowing for
------------------
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Questionnaire" shall mean an Administrative Questionnaire
-----------------------------
in the form of Exhibit A.
"Affiliate" of any Person means any other Person which, directly or
---------
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
- -------- -------
10.04, an "Affiliate" shall be a Person engaged in the business of banking or
buying or investing in loans who is controlled by, or under common control with,
a Lender.
"Agent Fees" shall have the meaning assigned to such term in Section
-----------
2.11(c).
"Agents" means the Administrative Agent and the Collateral Agent.
------
"Aggregate Tranche A Revolving Credit Exposure" shall mean the
--------------------------------------------------
aggregate amount of the Tranche A Lenders' Tranche A Revolving Credit
Exposures.
"Aggregate Tranche B Revolving Credit Exposure" shall mean the
--------------------------------------------------
aggregate amount of the Tranche B Revolving Lenders' Tranche B Revolving
Credit Exposures.
"Agreement Currency" shall have the meaning assigned to such term in
-------------------
Section 10.16(b).
"Alternate Base Rate" shall mean, for any day, a rate per annum
---------------------
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective on the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
3
"Alternative Committed Currencies" shall mean Euro (which, until
----------------------------------
December 31, 2001, may be expressed using the denominations "French Francs"
or "Deutschmarks") and British Pounds Sterling.
"Alternative Committed Currency Borrowing" shall mean a Borrowing
-------------------------------------------
comprised in whole or in part of Alternative Committed Currency Loans.
"Alternative Committed Currency Equivalent" shall mean, with respect
-------------------------------------------
to an amount in Dollars on any date in relation to a specified Alternative
Committed Currency, the amount of such specified Alternative Committed
Currency that may be purchased with such amount of Dollars at the Spot
Exchange Rate with respect to such Alternative Committed Currency on such
date.
"Alternative Committed Currency Loan" shall mean any Revolving Loan
--------------------------------------
denominated in an Alternative Committed Currency.
"Amendment and Restatement Agreement" means the Amendment and
---------------------------------------
Restatement Agreement dated as of August 5, 2002 among the Borrowers, the
Lenders and the Administrative Agent, relating to this Agreement.
"Amendment and Restatement Effective Date" shall mean the date on
--------------------------------------------
which the conditions specified in Section 5 of the Amendment and
Restatement Agreement are satisfied or waived.
"Another Currency" shall have the meaning assigned to such term in
-----------------
Section 2.13(a).
"Applicable Creditor" shall have the meaning assigned to such term in
--------------------
Section 10.16(b).
"Applicable Currency" shall have the meaning assigned to such term in
--------------------
Section 2.13(a).
"Asbestos Payment" means any cash payment actually made by or on
-----------------
behalf of CCSC or any Subsidiary in respect of any liability related to
asbestos or any claim, action or proceeding related to asbestos (including
any settlement of any thereof and excluding any payments relating to the
defense or administration of asbestos-related claims, including, without
limitation, the fees of counsel, consultants and experts).
4
"Assigned Dollar Value" shall have the meaning assigned to such term
----------------------
in Section 2.02(c).
"Assignment and Acceptance" shall mean an assignment and acceptance
---------------------------
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
-------------------
officers whose signature and incumbency shall have been certified to the
Administrative Agent and the Lenders pursuant to Section 4.01(d) or any
successor thereto.
"Available Tranche A Revolving Credit Commitment" shall mean as to any
-----------------------------------------------
Tranche A Revolving Lender, at any time of determination, an amount equal
to such Tranche A Revolving Lender's Tranche A Revolving Credit Commitment
at such time minus such Tranche A Revolving Lender's Tranche A Revolving
Credit Exposure at such time.
"Available Tranche B Revolving Credit Commitment" shall mean as to any
-----------------------------------------------
Tranche B Revolving Lender, at any time of determination, an amount equal
to such Tranche B Revolving Lender's Tranche B Revolving Credit Commitment
at such time minus such Tranche B Revolving Lender's Tranche B Revolving
Credit Exposure at such time.
"Board" shall mean the Board of Governors of the Federal Reserve
-----
System of the United States.
"Borrowing" shall mean a Loan or group of Loans to one Borrower of the
---------
same Class and Type and denominated in a single currency (except as
provided in Section 2.13(b)) made (including through a conversion or
continuation) by the applicable 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
---------------
pursuant to Section 2.02 or 2.04 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
------------------
Section 2.02(a).
5
"British Pounds Sterling" shall mean lawful money of the United
-------------------------
Kingdom.
"Business Day" shall mean a day other than a Saturday, Sunday or other
------------
day on which commercial banks in New York, New York are authorized or
required by law to close, except that (i) when used in connection with a
Eurocurrency Loan or an Alternative Committed Currency Loan, "Business Day"
also shall exclude any day on which dealings in foreign currencies and
exchange between banks may not be carried on in London, England, or New
York, New York or, in the case of an Alternative Committed Currency Loan
denominated in Euro, the place designated by the Administrative Agent from
time to time as the place for payments in Euro and (ii) when used in
connection with the payment or purchase of any amount denominated in an
Alternative Committed Currency, "Business Day" also shall exclude any day
on which dealings in foreign currencies and exchange may not be carried on
between banks located in Frankfurt, Germany or, in the case of Loans
denominated in French Francs or made by a Lender domiciled in Paris,
France.
"Capital Lease Obligations" shall mean all monetary obligations of
---------------------------
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,
------
Compensation, and Liability Act of 1980, as amended.
"CERCLIS" shall mean the Comprehensive Environmental Response,
-------
Compensation and Liability Information System List.
"Change in Control" shall mean (a) the acquisition of ownership,
------------------
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on the
Effective Date) of Equity Interests representing more than 50% of either
the aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in CCSC; or (b)
occupation of a majority of the seats (other than vacant seats) on the
board of directors of CCSC by Persons who were neither (i) nominated by the
board of directors of CCSC nor (ii) appointed by directors so nominated. A
corporate reorganization of CCSC that results in CCSC becoming a wholly
owned subsidiary of a holding company, the outstanding Equity Interests of
which are held by the same holders (in substantially the same proportions)
as are holders of the Equity Interests of CCSC immediately prior to such
corporate reorganization, shall not constitute a "Change in Control"
(provided that the directors of such holding company, immediately after
giving effect to such corporate reorganization, were either (i) nominated,
appointed or approved by the board of directors of CCSC or (ii) appointed
by directors so nominated); but after giving effect to any such corporate
reorganization, references in the preceding sentences of this definition to
"CCSC" shall be deemed to refer to such holding company for purposes of
determining whether a "Change in Control" has occurred and, in addition,
the failure by CCSC thereafter to remain a wholly owned subsidiary of such
holding company also shall constitute a "Change in Control".
6
"Charges" shall have the meaning assigned to such term in Section
-------
10.09.
"Class" when used in reference to any Loan or Borrowing, refers to
-----
whether such Loan, or the Loans comprising such Borrowing, are Tranche A
Revolving Loans, Tranche B Revolving Loans, Term Loans or Swingline Loans,
and when used in reference to any Commitment, refers to whether such
Commitment is a Tranche A Revolving Credit Commitment, a Tranche B
Revolving Credit Commitment or Term Commitment, and when used in reference
to any Lender, refers to whether such Lender is a Tranche A Revolving
Lender, a Tranche B Revolving Lender or a Term Lender.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time.
"Collateral" means any and all "Collateral", as defined in any
----------
applicable Security Document.
"Collateral Agent" means JPMorgan Chase Bank, in its capacity as
-----------------
collateral agent for the Secured Parties under the U.S. Security Documents,
and each entity the Collateral Agent shall designate to fulfill the
corresponding role under the Foreign Security Documents.
"Collateral Sharing Agreement" means the Collateral Sharing Agreement,
----------------------------
substantially in the form of Exhibit C, between CCSC and the Collateral
Agent for the benefit of the Secured Parties.
7
"Commitment" means a Revolving Credit Commitment or Term Commitment,
----------
or any combination thereof (as the context requires).
"Commitment Percentage" shall mean, (i) with respect to any Tranche A
----------------------
Revolving Lender at any time, the percentage of the Total Tranche A
Revolving Credit Commitment represented by such Lender's Tranche A
Revolving Credit Commitment and (ii) with respect to any Tranche B
Revolving Lender at any time, the percentage of the Total Tranche B
Revolving Credit Commitment represented by such Lender's Tranche B
Revolving Credit Commitment. If the Revolving Credit Commitments have
terminated or expired, the Commitment Percentage shall be determined based
upon the Revolving Credit Commitments most recently in effect, giving
effect to any assignments.
"Compliance Certificate" shall mean a certificate of a Financial
-----------------------
Officer of CCSC substantially in the form of Exhibit D.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
--------------------
for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) Consolidated Net
Interest Expense for such period, (ii) consolidated income, franchise,
personal property and other tax expense for such period, (iii) all amounts
attributable to depreciation and amortization for such period, (iv) charges
for financial statement asbestos reserve increases, (v) any Non-Cash
Charges for such period and (vi) for any period that includes the fiscal
quarter ended December 31, 2000, the non-cash bad debts-related charges for
such quarter in the approximate amount of $35,000,000 (pre-tax), and minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income, any extraordinary gains for such period and any
gains realized in connection with the sale of any material assets outside
the ordinary course of business during such period, all determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net income or
------------------------
loss of CCSC and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded the income or loss of any Person accrued prior to the date it
becomes a Subsidiary or is merged into or consolidated with CCSC or any
Subsidiary or the date that such Person's assets are acquired by CCSC or
any Subsidiary.
8
"Consolidated Net Interest Expense" means, for any period, (a) the sum
---------------------------------
of (i) the interest expense (including imputed interest expense in respect
of Capital Lease Obligations) of CCSC and the Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP, plus (ii) any
interest accrued during such period in respect of Indebtedness of CCSC or
any of its Subsidiaries that is required to be capitalized rather than
included in consolidated interest expense for such period in accordance
with GAAP, minus (b) the amount of interest income received by CCSC and its
Subsidiaries for such period.
"Control" shall mean the possession, directly or indirectly, of the
-------
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 thereto.
"Controlled Group" shall mean all members of a controlled group of
-----------------
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 Event" shall have the meaning assigned to such term in Section
------------
4.02.
"Currency Equivalent" shall mean the Dollar Equivalent or the
---------------------
Alternative Committed Currency Equivalent, as the case may be, of the
Applicable Currency.
"Default" shall mean any Event of Default, any Event of Termination
-------
and any event or condition which upon notice, lapse of time or both would
constitute an Event of Default or Event of Termination.
"Denomination Date" shall mean, in relation to any Alternative
------------------
Committed Currency Borrowing, the date that is three Business Days before
the date such Borrowing is made.
"Dollar Equivalent" shall mean, with respect to an amount of any
------------------
Alternative Committed Currency on any date, the amount of Dollars that may
be purchased with such amount of the Alternative Committed Currency at the
Spot Exchange Rate with respect to the Alternative Committed Currency on
such date.
"Dollars" or "$" shall mean lawful money of the United States of
-------
America.
9
"Domestic Subsidiary" shall mean any Subsidiary of CCSC that is not a
--------------------
Foreign Subsidiary.
"Effective Date" means the date on which the conditions specified in
---------------
Section 4.01 are satisfied (or waived in accordance with Section 10.08).
"Environment" shall mean ambient air, surface water and groundwater
-----------
(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,
--------------------
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 other 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 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
------------------
(including common law), 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, or exposure to, any
Hazardous Material or to health and safety matters.
"Environmental Liability" shall mean any liability, contingent or
------------------------
otherwise (including, but not limited to, any liability for damages,
natural resource damage, costs of environmental remediation, administrative
oversight costs, fines, penalties or indemnities), of CCSC or any of its
Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials,
(c) exposure to any Hazardous Materials, (d) the Release or threatened
Release of any Hazardous Materials into the Environment or (e) any
contract, agreement or other consensual arrangements pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
10
"Environmental Permit" means any permit, approval, authorization,
---------------------
certificate, license, variance, filing or permission required by or from
any Governmental Authority pursuant to any Environmental Law.
"Equity Interests" means shares of capital stock, partnership
------------------
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
----------------
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
------------------------
Eurocurrency Loans.
"Eurocurrency Loan" shall mean any Loan bearing interest at a rate
------------------
determined by reference to the Adjusted LIBO Rate in accordance with the
provisions of Article II.
"Eurocurrency Revolving Credit Borrowing" shall mean a Revolving
------------------------------------------
Credit Borrowing comprised of Eurocurrency Loans.
"Event of Default" shall have the meaning assigned to such term in
-----------------
Section 7.01.
"Event of Termination" shall have the meaning assigned to such term in
--------------------
Section 7.01.
"Existing Credit Agreement" has the meaning assigned to it in the
---------------------------
preliminary statement in this Agreemnt.
"Existing Letters of Credit" shall mean the letters of credit
-----------------------------
identified on Schedule 1.01(c).
"Extended Term Lender" means a Lender with an outstanding Extended
---------------------
Term Loan, in its capacity as such.
"Extended Term Loan" means a Term Loan the maturity of which has been
-------------------
extended to the Extended Term Loan Maturity Date pursuant to the Amendment
and Restatement Agreement.
11
"Extended Term Loan Maturity Date" means December 16, 2002.
--------------------------------
"Facility Fee" shall have the meaning assigned to such term in Section
------------
2.11(a).
"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 January 23, 2001, among
----------
CCSC, JPMorgan Chase Bank and J.P. Morgan Securities Inc.
"Fees" shall mean the Facility Fees, the LC Fees and the Agent Fees.
----
"Financial Officer" of any corporation, partnership or other entity
------------------
shall mean the chief financial officer, principal accounting officer,
Treasurer or Controller of such corporation, partnership or other entity.
"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.
"Foreign Guarantee Agreements" shall mean one or more guarantee
------------------------------
agreements guaranteeing Foreign Obligations described therein, with terms
substantially similar to the U.S. Guarantee Agreement and such other terms
as shall be reasonably determined by the Administrative Agent, to be made
by Foreign Loan Parties in favor of the Administrative Agent for the
benefit of the Secured Parties.
12
"Foreign Loan Parties" means (a) each Subsidiary Borrower that is a
--------------------
Foreign Subsidiary, (b) each other Subsidiary identified as a Loan Party on
Schedule 3.09 that is organized under the laws of the United Kingdom,
France, Germany or any political subdivision of any of the foregoing and
(c) each other Foreign Subsidiary designated by CCSC as a Foreign Loan
Party provided that such Foreign Subsidiary shall have complied with the
provisions of Section 5.11.
"Foreign Obligations" has the meaning assigned to the term
---------------------
"Obligations" or the term corresponding thereto in each Foreign Security
Agreement.
"Foreign Pledge Agreements" shall mean one or more pledge agreements
--------------------------
securing Obligations described therein, with terms substantially similar to
the U.S. Pledge Agreement and such other terms as shall be reasonably
determined by the Collateral Agent, among certain Loan Parties (including
certain Foreign Loan Parties and U.S. Loan Parties which own Equity
Interests in Subsidiaries organized under the laws of France, Germany or
any political subdivision of any of the foregoing) and the Collateral Agent
for the benefit of the Secured Parties.
"Foreign Security Agreements" shall mean one or more security
------------------------------
agreements securing Foreign Obligations described therein with terms
substantially similar to the U.S. Security Agreement and such other terms
as shall be reasonably determined by the Collateral Agent, among certain
Foreign Loan Parties and the Collateral Agent for the benefit of the
Secured Parties.
"Foreign Security Documents" shall mean the Foreign Security
------------------------------
Agreements, the Foreign Pledge Agreements and each other security agreement
or other instrument or document executed and delivered pursuant to Section
5.11 or 5.12 to secure any of the Foreign Obligations. The Foreign Security
Documents shall also include the French Delegations of Dividends.
"Foreign Subsidiary" shall mean any Subsidiary of CCSC that is
-------------------
organized under the laws of a jurisdiction other than the United States of
America or any State thereof or the District of Columbia.
"French Borrower" shall mean a Subsidiary Borrower that is organized
----------------
under the laws of France.
"French Delegations of Dividends" shall mean, with respect to a French
-------------------------------
Borrower, the delegations of dividends ("delegations de dividendes")
pertaining to dividends to be received by such French Borrower from all
Subsidiaries organized under the laws of France in which it holds Equity
Interests, if any, in favor of the Collateral Agent.
13
"French Holding Companies" shall mean Crown Developpement SNC,
--------------------------
CarnaudMetalbox SA and Societe de Participations CarnaudMetalbox SA.
"GAAP" shall mean generally accepted accounting principles in the
----
United States applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local or
-----------------------
foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Guarantee" of or by any Person (the "guarantor") means any
---------
obligation, contingent or otherwise, of the guarantor guaranteeing or
having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any
security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness or other obligation of the payment thereof (including pursuant
to a "synthetic lease"), (c) to maintain working capital, equity capital or
any other financial statement condition or liquidity of the primary obligor
so as to enable the primary obligor to pay such Indebtedness or other
obligation or (d) as an account party in respect of any letter of credit or
letter of guaranty issued to support such Indebtedness or obligation;
provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of the
obligation under any Guarantee shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation
in respect of which such Guarantee is made (including principal, interest
and fees) and (b) the maximum amount for which such guarantor may be liable
pursuant to the terms of the instrument embodying such Guarantee, unless
such primary obligation and the maximum amount for which such guarantor may
be liable are not stated or determinable, in which case the amount of the
obligation under such Guarantee shall be such guarantor's maximum
reasonably anticipated liability in respect thereof as determined by the
guarantor in good faith.
14
"Guarantee Agreements" shall mean the Foreign Guarantee Agreements and
--------------------
the U.S. Guarantee Agreement.
"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.
"Hedging Agreement" means any interest rate protection agreement,
------------------
foreign currency exchange agreement, commodity price protection agreement
or other interest or currency exchange rate or commodity price hedging
arrangement.
"Immaterial Subsidiary" shall mean any Subsidiary of CCSC designated
----------------------
as such from time to time by CCSC, provided that (i) no Loan Party may be
an Immaterial Subsidiary, (ii) the aggregate equity value of all Immaterial
Subsidiaries shall not exceed $50,000,000 at any time and (iii) the
aggregate Indebtedness of all Immaterial Subsidiaries shall not exceed
$100,000,000 at any time.
"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 such item the effect of which would be
to cause CCSC to be in default of any of its obligations under Section
6.12 or 6.13.
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits
or advances of any kind, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of
such Person upon which interest charges are customarily paid (excluding
obligations to pay salary or benefits under deferred compensation or other
benefit programs), (d) all obligations of such Person under conditional
sale or other title retention agreements relating to property acquired by
such Person, (e) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding current accounts payable
incurred in the ordinary course of business), (f) all Indebtedness
(excluding prepaid interest thereon) of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise,
of such Person as an account party in respect of letters of credit and
letters of guaranty and (j) all obligations, contingent or otherwise, of
such Person in respect of bankers' acceptances; provided, however, that the
term "Indebtedness" shall not include indebtedness incurred by a special
purpose, wholly owned Subsidiary of such Person that purchases accounts
receivable from such Person and its other Subsidiaries to the extent that
such indebtedness is nonrecourse to such Person and each such other
Subsidiary and is not required under GAAP to be reflected on the
consolidated balance sheet of CCSC. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is
directly liable therefor as a result of such Person's ownership interest in
or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.
15
"Indemnity, Subrogation and Contribution Agreement" means the
--------------------------------------------------------
Indemnity, Subrogation and Contribution Agreement, substantially in the
form of Exhibit E, among the U.S. Loan Parties, each Subsidiary Borrower
that is a Foreign Subsidiary and the Administrative Agent.
"Information Memorandum" shall mean the Confidential Information
-----------------------
Memorandum dated February 2001 relating to CCSC and the amendment and
restatement of the Original Credit Agreement.
"Insurance Subsidiary" shall mean Crownway Insurance Company, a
---------------------
Vermont corporation.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as
-----------------------
of March 2, 2001, among Citibank, N.A., as Program Agent, CCSC, Crown Cork
& Seal Receivables (DE) Corporation, Crown Cork & Seal Company (USA), Inc.,
Constar, Inc., Risdon-AMS (USA), Inc., Zeller Plastik, Inc., and the
Administrative Agent, as Bank Agent.
16
"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, (a) 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, (b)
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 (i)
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 (ii) in the case of any other 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 or 6 months
thereafter, as the relevant Borrower may elect, or (b) as to any ABR
Borrowing (other than a Swingline 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
Revolving Credit Maturity Date and (iii) the date such Borrowing is prepaid
in accordance with Section 2.05 or converted in accordance with Section
2.03 and (c) as to any Swingline Loan, a period commencing on the date of
such Loan and ending on the earliest of (i) the fifth Business Day
thereafter, (ii) the Revolving Credit Maturity Date and (iii) the date such
Loan is prepaid in accordance with Section 2.05; 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.
17
"Issuing Bank" means JPMorgan Chase Bank, in its capacity as the
-------------
issuer of Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.06(i); provided that, when used with respect to
each of the Existing Letters of Credit, the term "Issuing Bank" shall refer
to the issuing bank in respect of such Existing Letter of Credit identified
in Schedule 1.01(c); provided further that such issuing banks in respect of
----------------
the Existing Letters of Credit shall not be required to issue any
additional Letters of Credit hereunder. The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"Judgment Currency" shall have the meaning assigned to such term in
------------------
Section 10.16(b).
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed
by or on behalf of the Borrowers at such time. The LC Exposure of any
Tranche A Revolving Lender at any time shall be its Commitment Percentage
of the total LC Exposure at such time.
"LC Fees" shall have the meaning assigned to such term in Section
-------
2.11(b).
"Lender Affiliate" means, (a) with respect to any Lender, (i) an
-----------------
Affiliate of such Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of
credit in the ordinary course of its business and is administered or
managed by a Lender or an Affiliate of such Lender and (b) with respect to
any Lender that is a fund which invests in bank loans and similar
extensions of credit, any other fund that invests in bank loans and similar
extensions of credit and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement. As of the Effective Date, each Existing Letter of Credit shall
be deemed to constitute a Letter of Credit hereunder, with the same effect
as if issued on the Effective Date for the account of CCSC.
18
"Leverage Ratio" means, on any date, the ratio of (a) Total
----------------
Indebtedness as of such date to (b) Consolidated EBITDA for the period of
four consecutive Fiscal Quarters of CCSC ended on such date (or, if such
date is not the last day of a Fiscal Quarter, ended on the last day of the
Fiscal Quarter most recently ended prior to such date); provided that for
--------
purposes of this definition, if CCSC or any of its Subsidiaries has sold,
transferred, leased or otherwise disposed of assets pursuant to Section
6.05(f) during the relevant period for determining Consolidated EBITDA, (x)
Consolidated EBITDA for the relevant period shall be calculated after
giving pro forma effect thereto, as if any such sale, transfer, lease or
other disposition of assets (and any related incurrence, repayment or
assumption of Indebtedness, with any new Indebtedness being deemed to be
amortized over the relevant period in accordance with its terms) had
occurred on the first day of the relevant period for determining
Consolidated EBITDA, and (y) Total Indebtedness shall be calculated after
giving effect to the application of any Net Cash Proceeds from such sale,
transfer, lease or other disposition of assets pursuant to Section 2.05.
Any such pro forma calculations may include operating and other expense
reductions and other synergistic benefits for such period resulting from
any transaction that is being given pro forma effect to the extent that
such operating and other expense reductions and other synergistic benefits
would be permitted pursuant to Article XI of Regulation S-X under the
Securities Act of 1933.
"LIBO Rate" shall mean with respect to any Eurocurrency Borrowing,
---------
other than a Weekly Eurocurrency Borrowing, for any Interest Period, the
rate appearing on page 3750 of the Dow Jones Market Service (or any
successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to deposits in the currency in which such
Borrowing is denominated) at approximately 11:00 a.m., London time, on the
Quotation Day for the currency in which such Borrowing is denominated, as
the rate for deposits in the currency in which such Borrowing is
denominated with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason, then the
"LIBO Rate" with respect to such Eurocurrency Borrowings for such Interest
---------
Period shall be the rate (rounded upwards, if necessary, to the next 1/100
of 1%) at which deposits of $5,000,000 (or in the case of Eurocurrency
Borrowings denominated in an Alternative Committed Currency, deposits with
a Dollar Equivalent of $5,000,000) and for a maturity comparable to such
Interest Period are offered by 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, on the Quotation Day for
the currency in which such Borrowing is denominated prior to the
commencement of such Interest Period. "LIBO Rate" shall mean with respect
---------
to any Weekly Eurocurrency Borrowing, 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 1/100 of 1%) of the rates 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 Lender, included in such Weekly 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, as of 11:00 a.m., London time, on the
Quotation Day for the currency in which such Borrowing is denominated for
such Interest Period.
19
"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, each Subsidiary Borrower
--------------
Notice and Designation, the Guarantee Agreements, the Indemnity,
Subrogation and Contribution Agreement, the Security Documents and, if
requested by a Lender pursuant to Section 2.08(e), each Note.
"Loan Parties" shall mean the Borrowers and the Subsidiary Loan
-------------
Parties.
"Loans" shall mean the Revolving Loans, the Swingline Loans and the
-----
Term Loans.
"Material Adverse Effect" shall mean a materially adverse effect on
-------------------------
(a) the business, assets, operations or condition (financial or otherwise)
of CCSC and its Subsidiaries taken as a whole, (b) the ability of any Loan
Party to perform any of its material obligations under any Loan Document or
(c) the material rights of or material benefits available to the Lenders
under any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans and
----------------------
Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of CCSC and its Subsidiaries in an aggregate
principal amount exceeding $50,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of CCSC or
any Subsidiary in respect of any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that
CCSC or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
20
"Maximum Rate" shall have the meaning assigned to such term in Section
------------
10.09.
"MLA Cost" shall mean the cost imputed to the Lenders of the
---------
applicable Class 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 F.
"Moody's" shall mean Moody's Investors Service, Inc.
-------
"Mortgage" means a mortgage, deed of trust, assignment of leases and
--------
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the U.S. Obligations and/or Foreign
Obligations, including any amendment thereto. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means, initially, each parcel of real property
-------------------
and the improvements thereto owned by a Loan Party and identified on
Schedule 1.01(a), and includes each other parcel of real property and
improvements thereto with respect to which a Mortgage is granted pursuant
to Section 5.11 or 5.12.
"Multicurrency Borrowing" shall have the meaning assigned to such term
-----------------------
in Section 2.13(b).
"Net Cash Proceeds" means, with respect to any Prepayment Event (a)
-----------------
the cash proceeds actually received in respect of such Prepayment Event
including (i) any cash received in respect of any non-cash proceeds, but
only as and when received, (ii) in the case of a casualty, insurance
proceeds, and (iii) in the case of a condemnation or similar event,
condemnation awards and similar payments, net of (b) the sum of (i) all
reasonable fees and out-of-pocket expenses paid by CCSC and the
Subsidiaries to third parties (other than Affiliates) in connection with
such event, (ii) in the case of a sale, transfer or other disposition of an
asset (including pursuant to a sale and leaseback transaction or a casualty
or a condemnation or similar proceeding), the amount of all payments
required to be made by CCSC and the Subsidiaries as a result of such event
to repay Indebtedness (other than Loans) secured by such asset or otherwise
subject to mandatory prepayment as a result of such event, and (iii) the
amount of all taxes paid (or reasonably estimated to be payable) by CCSC
and the Subsidiaries, and the amount of any reserves established by CCSC
and the Subsidiaries to fund contingent liabilities reasonably estimated to
be payable, in each case during the year that such event occurred or the
next succeeding two years and that are directly attributable to such event
(as determined reasonably and in good faith by CCSC), provided that any
amount by which such reserves are reduced for reasons other than payment of
any such contingent liabilities shall be considered "Net Cash Proceeds"
upon such reduction. In the case of Net Cash Proceeds denominated in a
currency other than Dollars, the amount of such Net Cash Proceeds shall be
the Dollar Equivalent thereof.
21
"Non-Cash Charges" means charges that (a) do not represent cash
-----------------
payments made or to be made by CCSC or any Subsidiary prior to the
Revolving Credit Maturity Date (whether in the period incurred or any
future period), including, but not limited to, minority interest net of
equity earnings, losses realized upon the sale of any assets outside the
ordinary course of business and extraordinary losses, and (b) do not
involve the write-down or write-off of any accounts receivable or inventory
unless related to an extraordinary item.
"Non-Extended Term Lender" means a Lender with an outstanding
---------------------------
Non-Extended Term Loan, in its capacity as such.
"Non-Extended Term Loan" means a Term Loan that is not an Extended
------------------------
Term Loan.
"Non-Extended Term Loan Maturity Date" means August 4, 2002.
------------------------------------
"Note" shall mean a note substantially in the form of Exhibit G.
----
"Obligations" shall mean the U.S. Obligations and the Foreign
-----------
Obligations.
"Organic Document" means, (i) relative to each Person 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, (ii) relative to each Person that is a
partnership, its partnership agreement and any other similar arrangements
applicable to any partnership or other equity interests in the Person and
(iii) relative to any Person that is any other type of legal entity, such
documents as shall be comparable to the foregoing.
22
"Original Restated Credit Agreement" has the meaning assigned to it in
----------------------------------
the preliminary statement in this Agreement.
"Original Credit Agreement" has the meaning assigned to it in the
---------------------------
preliminary statement in this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
----
and defined in ERISA.
"Perfection Certificate" means a certificate in the form of Annex 3 to
----------------------
the U.S. Security Agreement or any other form approved by the Collateral
Agent.
"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.
"Permitted Capital Market Debt" shall mean senior unsecured notes of
------------------------------
CCSC sold pursuant to a public offering in the United States or pursuant to
an offering in reliance on Rule 144A and/or Regulation S under the
Securities Act of 1933, as amended, the terms of which notes (i) do not
provide for any scheduled repayment, mandatory redemption or sinking fund
obligation prior to one year after the Revolving Credit Maturity Date, (ii)
do not restrict, limit or adversely affect the ability of CCSC or any of
its Subsidiaries to perform their obligations under any of the Loan
Documents and (iii) are customary for similar offerings by issuers with
credit ratings comparable to that of CCSC and are reasonably satisfactory
to the Administrative Agent.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes, assessments or governmental
charges (including social security, unemployment and similar charges) that
are not yet due or are being contested in compliance with Section 5.09;
23
(b) statutory Liens of landlords and carriers', warehousemen's,
mechanics', materialmen's, repairmen's, suppliers' and other like Liens
imposed by law or pursuant to customary reservations or retentions of
title, arising in the ordinary course of business and securing obligations
that are not overdue by more than 60 days or are being contested in
compliance with Section 5.09;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations and deposits securing liability to
insurance carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) any attachment or judgment liens in respect of judgments that do
not constitute an Event of Default under clause (f) of Section 7.01;
(f) easements, zoning restrictions, rights-of-way and similar
restrictions and other encumbrances or title defects on real property
imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of CCSC or any Subsidiary;
(g) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods in the ordinary course of business;
(h) Liens relating to customary retention of title clauses; and
(i) Liens arising in the ordinary course of business with respect to
customary overdraft and foreign exchange facilities over deposit accounts
held by Subsidiaries which are not Loan Parties;
provided that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness.
24
"Permitted Investments" means:
---------------------
(a) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed or insured by the United States of
America or any agency thereof;
(b) certificates of deposit and eurodollar time deposits with
maturities of 180 days or less from the date of acquisition and overnight
bank deposits of any Lender or of any commercial bank having capital and
surplus in excess of $500,000,000;
(c) repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (b) of this definition, having a term
of not more than 30 days with respect to securities issued or fully
guaranteed or insured by the United States of America or any agency
thereof;
(d) commercial paper of a domestic issuer rated at least A-1 by S&P or
P-1 by Moody's;
(e) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this
definition; or
(f) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through
(e) of this definition; provided that, in the case of any investment by a
Foreign Subsidiary, "Permitted Investments" shall also include: (i) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized and is conducting business or in
obligations fully and unconditionally guaranteed by such sovereign nation
(or any agency thereof), (ii) investments of the type and maturity
described in clauses (a) through (e) above of foreign obligors, which
investments or obligors (or the parents of such obligors) have ratings
described in such clauses or equivalent ratings from comparable foreign
rating agencies and (iii) shares of money market mutual or similar funds
which invest exclusively in assets otherwise satisfying the requirements of
this definition (including this proviso).
25
"Permitted Receivables Financing" shall mean (i) the transactions
---------------------------------
under the Receivables Purchase Agreement dated as of January 26, 2001 (the
"Receivables Purchase Agreement") among Crown Cork & Seal Receivables (DE)
Corporation, as Seller, Crown Cork & Seal Company (USA), Inc., as the
Servicer, the banks and other financial institutions party thereto as
Purchasers thereunder and Citibank, N.A., as administrative agent for the
Purchasers and the other Owners thereunder, as the same may be amended,
amended and restated, supplemented or otherwise modified from time to time
and under the "Transaction Documents" as defined therein, and (ii)
refinancings of the program under the Receivables Purchase Agreement or the
consummation of one or more additional receivables financings (including,
without limitation, financings of European receivables) with combined
proceeds of all Permitted Receivables Financings in an aggregate principal
amount not to exceed $600,000,000 (or, at the time that the applicable
Permitted Receivables Financing is entered into, the Dollar Equivalent
thereof) at any time outstanding, in each case pursuant to a structured
receivables financing consisting of a securitization of receivables the
material terms of which are reasonably satisfactory to CCSC and the
Administrative Agent on behalf of the Lenders. For purposes of the
foregoing $600,000,000 limitation, outstanding proceeds at any time shall
be deemed to equal the then outstanding capital amount or principal amount
received by the relevant Receivables Subsidiary in respect of sales of
accounts receivable or as a result of the creation of debt of such
Receivables Subsidiary where such debt is supported by accounts receivable,
in each case pursuant to a Permitted Receivables Financing, to the extent
such accounts receivable remain outstanding and uncollected at such time.
"Person" shall mean any natural person, corporation, business trust,
------
joint venture, association, company, partnership, limited liability company
or government, or any agency or political subdivision thereof.
"Plan" shall mean any Pension Plan or Welfare Plan.
----
"Pledge Agreements" shall mean the Foreign Pledge Agreements and the
------------------
U.S. Pledge Agreement.
"Prepayment Event" shall mean:
----------------
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction) of any property or asset of CCSC or any of
its Subsidiaries, other than (i) dispositions described in clauses (a),
(b), (c), (d) and (e) of Section 6.05 and (ii) any other single disposition
(or series of related dispositions) resulting in Net Cash Proceeds not
exceeding $10,000,000, provided that the dispositions excluded pursuant to
--------
this clause (ii) shall not apply to any dispositions to the extent the
cumulative Net Cash Proceeds therefrom exceed $25,000,000 in any period of
four consecutive Fiscal Quarters; or
26
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of CCSC or any of its Subsidiaries, but only to the extent that
the Net Cash Proceeds therefrom have not been applied to repair, restore or
replace such property or asset within 360 days after such event; or
(c) the issuance by any Subsidiary of CCSC of any Equity Interests, or
the receipt by any Subsidiary of any capital contribution, other than any
such issuance of Equity Interests to, or receipt of any such capital
contribution from, CCSC or any of its Subsidiaries;
(d) the incurrence by CCSC of any Indebtedness, other than
Indebtedness permitted by clauses (i) through (v), inclusive, and clauses
(vii), (viii), (ix) (except for the incurrence by any Subsidiary of CCSC of
Indebtedness permitted by such clause (ix) which
has a maturity in excess of one year), (x) and (xi) of Section 6.01(a).
"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 Tranche A Revolving Lender or Tranche B
--------------------
Revolving Lender at any time shall mean the percentage of the aggregate
Available Tranche A Revolving Credit Commitment or Available Tranche B
Revolving Credit Commitment, as applicable, represented by such Lender's
Available Tranche A Revolving Credit Commitment or Available Tranche B
Revolving Credit Commitment, as applicable.
"Public Debt" means the debt securities outstanding on the Effective
-----------
Date under (a) the Indenture, dated as of December 17, 1996, among CCSC, as
Issuer and Guarantor, Crown Cork & Seal Finance PLC, as Issuer, Crown Cork
& Seal Finance S.A., as Issuer, and the Bank of New York, as Trustee, (b)
the Indenture, dated as of January 15, 1995, between CCSC, as Issuer, and
JPMorgan Chase Bank (as successor in interest to Chemical Bank), as
Trustee, (c) the Indenture, dated as of April 1, 1993, between CCSC, as
Issuer, and JPMorgan Chase Bank (as successor in interest to Chemical
Bank), as Trustee, (d) the Note Purchase Agreements, dated as of May 4,
1993, among CarnaudMetalbox Investments (USA) Inc. and the purchasers of
the notes issued thereby, as amended, and (e) the Fiscal and Paying Agency
Agreement, dated as of December 6, 1999, between Crown Cork & Seal Finance
S.A., as Issuer, CCSC as Guarantor, Citibank N.A., as Agent and Paribas
Luxembourg as additional Paying Agent.
27
"Quotation Day" in respect of the determination of the LIBO Rate for
-------------
any Interest Period (i) for any Eurocurrency Borrowing in Dollars or any
Alternative Committed Currency, means the day on which quotations would
ordinarily be given by prime banks in the London interbank market for
deposits in the currency in which such Borrowing is denominated for
delivery on the first day of such Interest Period; provided, that if
--------
quotations would ordinarily be given on more than one date, the Quotation
Day for such Interest Period shall be the last of such dates and (ii) for
any Eurocurrency Borrowing in British Pounds Sterling, means the first day
of such Interest Period.
"Receivables Subsidiary" shall mean, initially, Crown Cork & Seal
-----------------------
Receivables (DE) Corporation, and any other special purpose subsidiary
which exists solely to purchase and sell receivables or to otherwise raise
financing in connection with a Permitted Receivables Financing.
"Register" shall have the meaning given such term in Section 10.04(d).
--------
"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.
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"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.
28
"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, abate 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 Revolving
-----------------
Credit Exposures, Term Loans and unused Commitments representing more than
50% of the sum of the total Revolving Credit Exposures, outstanding Term
Loans and unused Commitments at such time.
"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, partnership or other entity
-------------------
shall mean any executive officer or Financial Officer of such corporation,
partnership or other entity and any other officer or similar official
thereof responsible for the administration of the obligations of such
corporation, partnership or other entity in respect of this Agreement.
"Restricted Payment" means any dividend or other distribution (whether
------------------
in cash, securities or other property) with respect to any Equity Interests
in CCSC or any Subsidiary, or any payment (whether in cash, securities or
other property), including any sinking fund or similar deposit, on account
of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in CCSC or any Subsidiary or any
option, warrant or other right to acquire any such Equity Interests in CCSC
or any Subsidiary, provided that no such dividend, distribution or payment
--------
shall constitute a "Restricted Payment" to the extent made solely with
common stock of CCSC or any of its Subsidiaries. The granting of security
by any Subsidiary pursuant to the terms of this Agreement shall not be
considered a Restricted Payment.
29
"Revaluation Date" shall mean, with respect to an Alternative
------------------
Committed Currency Loan, the last day of each Interest Period (and, if the
Interest Period is six months, the 90th day of such 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 2.14(a)).
"Revolving Credit Borrowing" shall mean a Tranche A Revolving Credit
----------------------------
Borrowing or a Tranche B Revolving Credit Borrowing.
"Revolving Credit Commitment" shall mean a Tranche A Revolving Credit
----------------------------
Commitment or a Tranche B Revolving Credit Commitment.
"Revolving Credit Commitment Period" shall mean the period from and
-------------------------------------
including the date of the Original Credit Agreement to but not including
the Revolving Credit Maturity Date or any earlier date on which the
Revolving Credit Commitments to make Revolving Loans pursuant to Section
2.01 shall terminate as provided herein.
"Revolving Credit Exposure" shall mean Tranche A Revolving Credit
---------------------------
Exposure and Tranche B Revolving Credit Exposure.
"Revolving Credit Maturity Date" shall mean December 8, 2003.
------------------------------
"Revolving Lenders" means Tranche A Revolving Lenders and Tranche B
------------------
Revolving Lenders.
"Revolving Loans" shall mean Tranche A Revolving Loans and Tranche B
----------------
Revolving Loans.
"S&P" shall mean Standard & Poor's, a division of The McGraw-Hill
---
Companies.
"Secured Parties" shall have the meaning assigned to such term in the
----------------
applicable Security Agreement.
"Security Agreements" means the Foreign Security Agreements and the
--------------------
U.S. Security Agreement.
"Security Documents" means the Foreign Security Documents and the U.S.
------------------
Security Documents.
30
"Spot Exchange Rate" shall mean, on any day, (a) with respect to any
--------------------
Alternative Committed Currency in relation to Dollars, the spot rate at
which Dollars are offered on such day for such Alternative Committed
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 JPMorgan
Chase Bank, London at approximately 11:00 a.m., London time), (b) with
respect to Dollars in relation to any specified Alternative Committed
Currency, the spot rate at which such specified Alternative Committed
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 JPMorgan Chase Bank, London at approximately
11:00 a.m., London time). For purposes of determining the Spot Exchange
Rate in connection with an Alternative Committed Currency Borrowing, such
Spot Exchange Rate shall be determined as of the Denomination Date for such
Borrowing with respect to transactions in the applicable Alternative
Committed Currency that will settle on the date of such Borrowing.
"Statutory Reserve Rate" shall mean a fraction (expressed as a
------------------------
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurocurrency Loans shall be deemed
to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate 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 board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or
classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned
by such Person, by such Person and one or more other Subsidiaries of such
Person, or by one or more other Subsidiaries of such Person, (ii) any
partnership of which more than 50% of the outstanding partnership interests
having the power to act as a general partner of such partnership
(irrespective of whether at the time any partnership interests other than
general partnership interests of such partnership shall or might have
voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries of such Person, or by one or more other Subsidiaries of
such Person; provided that with respect to partnerships in which 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 or
(iii) any other legal entity the accounts of which would be consolidated
with those of such Person on a consolidated balance sheet of such Person
prepared in accordance with GAAP. Unless otherwise indicated, when used in
this Agreement, the term "Subsidiary" shall refer to a Subsidiary of CCSC.
31
"Subsidiary Borrower" shall mean (a) each Subsidiary set forth on
--------------------
Schedule 1.01(b) and (b) each other 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 Closing Certificate" shall mean a certificate
------------------------------------------
substantially in the form of Exhibit H.
"Subsidiary Borrower Notice and Designation" shall mean a notice and
-------------------------------------------
designation, substantially in the form of Exhibit I, 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 or LC Disbursements made pursuant to Letters of Credit
issued for the account of such Subsidiary Borrower and all other
obligations and liabilities of such Subsidiary Borrower to either Agent,
the Issuing Bank 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, 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 either Agent, the
Issuing Bank or to any Lender pursuant to any Loan Document) or otherwise.
32
"Subsidiary Loan Parties" shall mean each of CCSC's Domestic
--------------------------
Subsidiaries (other than a Receivables Subsidiary and the Insurance
Subsidiary) and, if any Subsidiary Borrower is not a Domestic Subsidiary of
CCSC, then "Subsidiary Loan Parties" shall include each of the Foreign Loan
Parties.
"Swingline Borrower" shall mean any Borrower to which Swingline Loans
-------------------
are made.
"Swingline Commitment" shall mean the commitment of the Swingline
---------------------
Lender to make loans pursuant to Section 2.04.
"Swingline Exposure" shall mean, at any time, the aggregate principal
-------------------
amount of all Swingline Loans outstanding at such time. The Swingline
Exposure of any Tranche A Revolving Lender at any time shall be its
Commitment Percentage of the total Swingline Exposure at such time.
"Swingline Lender" shall mean JPMorgan Chase Bank, in its capacity as
-----------------
lender of Swingline Loans.
"Swingline Loan" shall have the meaning assigned to such term in
---------------
Section 2.04(a).
"Taxes" shall have the meaning assigned to such term in Section 2.17.
-----
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
--------------
"Term Commitment" means, with respect to each Lender, the commitment,
---------------
if any, of such Lender to make a Term Loan hereunder on the Effective Date,
expressed as an amount representing the maximum principal amount of the
Term Loan to be made by such Lender hereunder, as the same may be reduced
from time to time pursuant to the provisions of this Agreement. The initial
amount of each Lender's Term Commitment is set forth on Schedule 2.01 or in
the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Term Commitment, as applicable. The initial aggregate amount of
the Lenders' Term Commitments is $400,000,000.
33
"Term Lender" means a Lender with a Term Commitment or an outstanding
-----------
Term Loan, in its capacity as such.
"Term Loan" means a Loan made pursuant to clause (i) of Section
----------
2.01(a).
"Term Loan Maturity Date" means the Non-Extending Term Loan Maturity
-----------------------
Date or the Extended Term Loan Maturity Date, as applicable.
"Total Indebtedness" means, as of any date, the sum of (a) the
-------------------
aggregate principal amount of Indebtedness of CCSC and the Subsidiaries
outstanding as of such date, in the amount that would be reflected on a
balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of
Indebtedness of CCSC and the Subsidiaries outstanding as of such date that
is not required to be reflected on a balance sheet in accordance with GAAP,
determined on a consolidated basis; provided that (x) for purposes of
clause (b) above, the term "Indebtedness" shall not include contingent
obligations of CCSC or any Subsidiary as an account party in respect of any
letter of credit or letter of guaranty unless such letter of credit or
letter of guaranty supports an obligation that constitutes Indebtedness and
(y) shall only include any Indebtedness recorded in accordance with SFAS
133 which does not represent an actual obligation and for which an
offsetting derivative contract has been recorded in the financial
statements to the extent such Indebtedness exceeds $50,000,000.
"Total Tranche A Revolving Credit Commitment" shall mean, at any time,
-------------------------------------------
the aggregate amount of the Tranche A Revolving Credit Commitments, as in
effect at such time.
"Total Tranche B Revolving Credit Commitment" shall mean, at any time,
-------------------------------------------
the aggregate amount of the Tranche B Revolving Credit Commitments, as in
effect as such time.
"Tranche A Revolving Credit Borrowing" shall mean a Borrowing
-----------------------------------------
comprised of Tranche A Revolving Loans.
34
"Tranche A Revolving Credit Commitment" shall mean, with respect to
---------------------------------------
each Tranche A Revolving Lender, the commitment of such Tranche A Revolving
Lender to make Tranche A Revolving Loans and to acquire participations in
Letters of Credit and Swingline Loans hereunder, expressed in each case as
an amount representing the maximum principal amount of such Tranche A
Revolving Lender's Tranche A Revolving Credit Exposure hereunder, as the
same may be reduced from time to time pursuant to the provisions of this
Agreement. The initial amount of each Tranche A Revolving Lender's Tranche
A Revolving Credit Commitment is set forth on Schedule 2.01 (in the case of
Tranche A Revolving Credit Commitments in effect on the Effective Date), or
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Tranche A Revolving Credit Commitment, as applicable. The
aggregate amount of the Tranche A Revolving Lenders' Tranche A Revolving
Credit Commitments as of the Effective Date is $2,175,000,000.
"Tranche A Revolving Credit Exposure" shall mean, with respect to any
------------------------------------
Tranche A Revolving Lender at any time, the sum of (a) the aggregate
principal amount at such time of all outstanding Tranche A Revolving Loans
of such Tranche A Revolving Lender denominated in Dollars, plus (b) the
Assigned Dollar Value at such time of the aggregate principal amount of all
outstanding Alternative Committed Currency Loans of such Tranche A
Revolving Lender, plus (c) such Tranche A Revolving Lender's LC Exposure at
such time, plus (d) such Tranche A Revolving Lender's Commitment Percentage
of the aggregate principal amount at such time of all outstanding Swingline
Loans, plus (e) an amount equal to such Tranche A Revolving Lender's Pro
Rata Percentage times the amount of outstanding Indebtedness with a
maturity of one year or less outstanding pursuant to Section 6.01(a)(ix).
"Tranche A Revolving Lender" shall mean a Lender with a commitment to
---------------------------
make Tranche A Revolving Loans or with any Tranche A Revolving Credit
Exposure, in its capacity as such.
"Tranche A Revolving Loans" shall mean the revolving loans made by the
-------------------------
Tranche A Revolving Lenders to the Borrowers pursuant to clause (ii) of
Section 2.01(a). Each Tranche A Revolving Loan shall be a Eurocurrency
Revolving Loan or an ABR Loan.
"Tranche B Revolving Credit Borrowing" shall mean a Borrowing
-----------------------------------------
comprised of Tranche B Revolving Loans.
"Tranche B Revolving Credit Commitment" shall mean, with respect to
---------------------------------------
each Tranche B Revolving Lender, the commitment of such Tranche B Revolving
Lender to make Tranche B Revolving Loans, expressed as an amount
representing the maximum principal amount of such Lender's Tranche B
Revolving Credit Exposure hereunder, as the same may be reduced from time
to time pursuant to the provisions of this Agreement. The initial amount of
each Tranche B Revolving Lender's Tranche B Revolving Credit Commitment is
set forth on Schedule 2.01 (in the case of Tranche B Revolving Credit
Commitments in effect on the Effective Date), or in the Assignment and
Acceptance pursuant to which such Lender shall have assumed its Tranche B
Revolving Credit Commitment, as applicable. The aggregate amount of the
Tranche B Revolving Lenders' Tranche B Revolving Credit Commitments as of
the Effective Date is $325,000,000.
35
"Tranche B Revolving Credit Exposure" shall mean, with respect to any
------------------------------------
Tranche B Revolving Lender at any time, the sum of (a) the aggregate
principal amount at such time of all outstanding Tranche B Revolving Loans
of such Tranche B Revolving Lender denominated in Dollars, plus (b) the
Assigned Dollar Value at such time of the aggregate principal amount of all
outstanding Alternative Committed Currency Loans of such Tranche B
Revolving Lender.
"Tranche B Revolving Lender" shall mean a Lender with a commitment to
---------------------------
make Tranche B Revolving Loans or with any Tranche B Revolving Credit
Exposure, in its capacity as such.
"Tranche B Revolving Loans" shall mean the revolving loans made by the
-------------------------
Tranche B Revolving Lenders pursuant to the second sentence of Section
2.01(a).
"Transactions" shall mean the execution, delivery and performance by
------------
each Loan Party 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 Adjusted LIBO Rate 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.
"Unrefunded Swingline Loans" shall have the meaning assigned thereto
----------------------------
in Section 2.04(c).
"U.S. Borrowers" shall mean CCSC and any Borrowers that are Domestic
---------------
Subsidiaries.
36
"U.S. Guarantee Agreement" means the U.S. Guarantee Agreement,
---------------------------
substantially in the form of Exhibit J, made by the Domestic Subsidiaries
(other than a Receivables Subsidiary and the Insurance Subsidiary) in favor
of the Administrative Agent for the benefit of the Secured Parties.
"U.S. Loan Parties" means CCSC and the Domestic Subsidiaries (other
------------------
than a Receivables Subsidiary and the Insurance Subsidiary).
"U.S. Obligations" has the meaning assigned to the term "Obligations"
-----------------
in the U.S. Security Agreement.
"U.S. Pledge Agreement" means the U.S. Pledge Agreement, substantially
---------------------
in the form of Exhibit K, among the U.S. Loan Parties and the Collateral
Agent for the benefit of the Secured Parties.
"U.S. Security Agreement" means the U.S. Security Agreement,
---------------------------
substantially in the form of Exhibit L, among the U.S. Loan Parties and the
Collateral Agent for the benefit of the Secured Parties.
"U.S. Security Documents" means the U.S. Security Agreement, the U.S.
-----------------------
Pledge Agreement, the Mortgages executed by the U.S. Loan Parties and each
other security agreement or other instrument or document executed and
delivered pursuant to Section 5.11 or 5.12 to secure any of the U.S.
Obligations.
"Weekly Eurocurrency Borrowing" shall mean a Revolving Credit
---------------------------------
Borrowing comprised of Weekly Eurocurrency Loans.
"Weekly Eurocurrency Loan" shall have the meaning specified in Section
------------------------
2.01(d).
"Welfare Plan" means a "welfare plan", as such term is defined in
-------------
section 3(1) of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
--------------------------------------
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
----
Loan") or by Type (e.g., a "Eurocurrency Loan") or by Class and Type (e.g., a
---- ----
"Eurocurrency Revolving Loan"). Borrowings also may be classified and referred
to by Class (e.g., a "Revolving Credit Borrowing") or by Type (e.g., a
---- ----
"Eurocurrency Borrowing") or by Class and Type (e.g., a "Eurocurrency Revolving
----
Borrowing").
37
SECTION 1.03. 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 Effective Date and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05.
ARTICLE II
The Credits
-----------
SECTION 2.01. Credit Commitments. (a) Subject to the terms and conditions
-------------------
hereof, each Lender severally agrees (i) to make a Term Loan in Dollars to CCSC
on the Effective Date in a principal amount not exceeding its Term Commitment
and (ii) to make Tranche A Revolving Loans in Dollars or one or more Alternative
Committed Currencies to any of CCSC or any Subsidiary Borrower (other than a
French Borrower) from time to time during the Revolving Credit Commitment
Period. Subject to the terms and conditions hereof, each Tranche B Revolving
Lender severally agrees to make Tranche B Revolving Loans in Dollars or one or
more Alternative Committed Currencies to any French Borrower from time to time
during the Revolving Credit Commitment Period. All Loans outstanding under the
Original Credit Agreement on the Effective Date shall be deemed to constitute
Tranche A Revolving Loans hereunder. Amounts repaid in respect of Term Loans may
not be reborrowed. During the Revolving Credit Commitment Period each Borrower
may use the Revolving 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), (i) the Aggregate Tranche A Revolving Credit Exposure would exceed the
Total Tranche A Revolving Credit Commitment then in effect, (ii) the Aggregate
Tranche B Revolving Credit Exposure would exceed the Total Tranche B Revolving
Credit Commitment then in effect, (iii) the Tranche A Revolving Credit Exposure
of any Tranche A Revolving Lender would exceed such Tranche A Revolving Lender's
Tranche A Revolving Credit Commitment, (iv) the Tranche B Revolving Credit
Exposure of any Tranche B Revolving Lender would exceed such Tranche B Revolving
Lender's Tranche B Revolving Credit Commitment, (v) the Assigned Dollar Value of
all outstanding Alternative Committed Currency Loans denominated in Euros would
exceed $1,500,000,000, (vi) the Assigned Dollar Value of all outstanding
Alternative Committed Currency Loans denominated in British Pounds Sterling
would exceed $1,000,000,000 or (vii) the Assigned Dollar Value of all
outstanding Alternative Committed Currency Loans would exceed $1,500,000,000.
38
(b) The Revolving Loans and Term Loans may from time to time be (i)
Eurocurrency Loans denominated in Dollars or (in the case of Revolving
Loans) an Alternative Committed 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 such Loan shall be made as or
--------
converted to a Eurocurrency Loan after the day that is one month prior to
the Revolving Credit Maturity Date or the Term Loan Maturity Date, as
applicable.
(c) Each Loan (other than a Swingline Loan) shall be made as part of a
Borrowing consisting of Loans of the same Class and Type made by the
Lenders ratably in accordance with their respective Commitments of the
applicable Class. The failure of any Lender to make any Loan required to be
made by it shall not relieve any other Lender of its obligations hereunder;
provided that the Commitments of the Lenders are several and no Lender
shall be responsible for any other Lender's failure to make Loans as
required.
(d) A Eurocurrency Loan may have an Interest Period of 1, 2 or 3 weeks
(a "Weekly Eurocurrency Loan"); provided that, except with respect to any
------------------------- --------
Loans made on the Effective Date, 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 2.05 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 or
(ii) the sale of equity securities of CCSC, the proceeds of which will be
used to repay the Loan pursuant to Section 2.05.
39
SECTION 2.02. Procedure for Borrowing; Assigned Dollar Values. (a) Each
-------------------------------------------------
Borrower may borrow under the Revolving Credit Commitments (subject to the
limitations in Section 2.01(a)) or (in the case of CCSC) the Term Commitments by
giving 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, in the case of
a Eurocurrency Borrowing or (b) 10:00 a.m., New York City time, on the Business
Day prior to the requested Borrowing Date, in the case of an ABR Borrowing;
provided that any such notice of an ABR Borrowing to finance the reimbursement
- --------
of an LC Disbursement as contemplated by Section 2.06(e) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed Borrowing. The
Borrowing Request for each Borrowing shall specify (i) whether the requested
Borrowing is to be a Tranche A Revolving Credit Borrowing, a Tranche B Revolving
Credit Borrowing or a Term Borrowing, (ii) the amount to be borrowed as measured
in Dollars, (iii) the requested Borrowing Date (which must be the Effective
Date, in the case of a Term Borrowing), (iv) whether the Borrowing is to be of
Eurocurrency Loans or ABR Loans, (v) if the Borrowing is to be of Eurocurrency
Loans, the length of the initial Interest Period therefor, (vi) if the Borrowing
is to be a Eurocurrency Revolving Borrowing, whether it is to be denominated in
either Dollars or a specified Alternative Committed Currency and (vii) the
location and number of the relevant Borrower's account to which funds are to be
disbursed, which shall comply with the requirements of this Agreement. If no
election as to the Type of Borrowing is specified, then the Requested Borrowing
shall be an ABR Borrowing (if denominated in Dollars) or a Eurocurrency
Borrowing (if denominated in an Alternative Committed Currency). If no Interest
Period is specified with respect to any requested Eurocurrency Borrowing, then
the Borrower thereunder shall be deemed to have selected an Interest Period of
one month's duration.
(b) Each Borrowing shall be in a minimum aggregate principal amount of
(i) $5,000,000 or an integral multiple of $1,000,000 in excess thereof or
(ii) in the case of a Revolving Credit Borrowing, if less, the aggregate
amount of the then Available Tranche A Revolving Credit Commitments or
Available Tranche B Revolving Credit Commitments, as applicable. Subject to
Section 2.13, Revolving Loans specified as an Alternative Committed
Currency Borrowing shall be made in the Alternative Committed Currency
specified in the applicable Borrowing Request in an aggregate amount equal
to the Dollar Equivalent of the Dollar 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 Committed Currency Loan shall be deemed to be in a principal
amount equal to its Assigned Dollar Value.
40
(c) With respect to each Alternative Committed Currency Loan, its
"Assigned Dollar Value" shall mean the following:
---------------------
(i) the Dollar 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 Dollar Equivalent of
such Alternative Committed 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 Dollar Value"
thereof at the time, then on and after such Revaluation Date the
"Assigned Dollar Value" of such Loan shall be adjusted to be the
Dollar 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 Dollar
Value of an Alternative Committed Currency Borrowing shall equal the
aggregate Assigned Dollar Value of each Alternative Committed Currency
Loan included in such Borrowing plus the aggregate principal amount of
any Loans denominated in Dollars included in such Borrowing.
41
(d) Upon receipt of a Borrowing Request from any Borrower, the
Administrative Agent shall promptly notify each applicable Lender of the
requested currency and aggregate amount (in both the requested currency and
Dollars) of such Borrowing and of the amount (in both the requested
currency and Dollars) of such Lender's pro rata portion thereof, which
shall be based on the respective Available Tranche A Revolving Credit
Commitments of all the Tranche A Revolving Lenders or the Available Tranche
B Revolving Credit Commitments of all the Tranche B Revolving Lenders, as
applicable (in the case of a Revolving Credit Borrowing) or Term
Commitments (in the case of a Term Borrowing), as applicable. 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 an Alternative Committed Currency Borrowing,
the office of the Administrative Agent specified from time to time by the
Administrative Agent as the place for payments in Euro or British Pounds
Sterling, as applicable, in each case prior to 11:00 a.m., local time in
the place of payment, and (ii) in the case of a Borrowing denominated in
Dollars, the New York office of the Administrative Agent specified in
Section 10.01 prior to 10:00 a.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 2.13, 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; provided that (i) proceeds of Term Loans shall be applied by the
--------
Administrative Agent on the Effective Date to repay outstanding Revolving
Loans and (ii) if on the Borrowing Date of any Revolving Loans to be made
to any Borrower, any Swingline Loans made to such Borrower or LC
Disbursements for the account of such Borrower shall be then outstanding,
the proceeds of such Revolving Loans shall first be applied to pay in full
such Swingline Loans or LC Disbursements, with any remaining proceeds to be
made available to such Borrower as provided above and provided further that
----------------
ABR Revolving Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.06(e) shall be remitted by the Administrative
Agent to the Issuing Bank.
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 2.18 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 Revolving Credit Maturity Date or the Term Loan Maturity
Date, as applicable. 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
Revolving Loan and refinance the amount of such Revolving Loan in another
permitted currency.
42
(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, (ii) after the date
that is one month prior to the Revolving Credit Maturity Date or the Term
Loan Maturity Date, as applicable or (iii) if, after giving effect thereto,
Section 2.04 would be contravened; 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 (or clause (ii) of the preceding proviso, in the case of
Alternative Committed Currency Loans), then (A) in the case of Alternative
Committed Currency Loans, such Loans shall continue as Eurocurrency Loans
bearing interest at a rate determined by reference to the Adjusted LIBO
Rate with an Interest Period of one month commencing on the last day of the
then current Interest Period or (B) in the case of Loans denominated in
Dollars, such Loans shall be automatically converted to ABR Loans on the
last day of such then expiring Interest Period (in which case the
Administrative Agent shall notify CCSC of such conversion).
(c) This Section shall not apply to Swingline Loans.
43
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions
----------------
hereof, the Swingline Lender agrees to make swingline loans in Dollars
(individually, a "Swingline Loan" and collectively, the "Swingline Loans") to
-------------- ----------------
any Borrower (other than a French Borrower) from time to time during the
Revolving Credit Commitment Period in accordance with the procedures set forth
in this Section 2.04, provided, that (i) the aggregate principal amount of all
--------
Swingline Loans shall not exceed $25,000,000 at any one time outstanding, (ii)
the principal amount of any borrowing of Swingline Loans may not exceed the
aggregate amount of the Available Tranche A Revolving Credit Commitments of all
Tranche A Revolving Lenders immediately prior to such borrowing or result in the
Aggregate Tranche A Revolving Credit Exposure then outstanding exceeding the
Total Tranche A Revolving Credit Commitments then in effect, and (iii) in no
event may Swingline Loans be borrowed hereunder if (x) an Event of Default or
Event of Termination shall have occurred and be continuing and (y) such Event of
Default or Event of Termination shall not have been subsequently cured or
waived. Amounts borrowed by any Swingline Borrower under this Section 2.04 may
be repaid and, up to but excluding the Revolving Credit Maturity Date,
reborrowed. All Swingline Loans shall at all times be ABR Loans. The relevant
Swingline Borrower shall give the Administrative Agent notice of any Swingline
Loan requested hereunder (which notice must be received by the Administrative
Agent prior to 12:00 noon, New York City time, on the requested Borrowing Date)
specifying (A) the amount to be borrowed, and (B) the requested Borrowing Date.
Upon receipt of such notice, the Administrative Agent shall promptly notify the
Swingline Lender of the aggregate amount of such borrowing. Not later than 3:00
p.m., New York City time, on the Borrowing Date specified in such notice the
Swingline Lender shall make such Swingline Loan available to the Administrative
Agent for the account of the relevant Swingline Borrower at the office of the
Administrative Agent set forth in Section 10.01 in funds immediately available
to the Administrative Agent. Amounts so received by the Administrative Agent
will promptly be made available to the relevant Swingline Borrower by the
Administrative Agent crediting the account of such Swingline Borrower on the
books of such office with the amount made available to the Administrative Agent
by the Swingline Lender (or, in the case of a Swingline Loan made to finance the
reimbursement of an LC Disbursement as provided in Section 2.06(e), by
remittance to the Issuing Bank) and in like funds as received by the
Administrative Agent. Each borrowing pursuant to this Section 2.04 shall be in a
minimum principal amount of $1,000,000 or an integral multiple of $100,000 in
excess thereof.
44
(b) Notwithstanding the occurrence of any Event of Default or Event of
Termination or noncompliance with the conditions precedent set forth in
Article IV or the minimum borrowing amounts specified in Section 2.02, if
any Swingline Loan shall remain outstanding at 10:00 a.m., New York City
time, on the fifth Business Day following the Borrowing Date thereof and if
by such time on such fifth Business Day the Administrative Agent shall have
received neither (i) a notice of borrowing delivered by the relevant
Swingline Borrower pursuant to Section 2.02 requesting that Revolving Loans
be made pursuant to Section 2.01 on the immediately succeeding Business Day
in an amount at least equal to the aggregate principal amount of such
Swingline Loan, nor (ii) any other notice satisfactory to the
Administrative Agent indicating such Swingline Borrower's intent to repay
such Swingline Loan on the immediately succeeding Business Day with funds
obtained from other sources, the Administrative Agent shall be deemed to
have received a notice from such Swingline Borrower pursuant to Section
2.02 requesting that ABR Revolving Loans be made pursuant to Section 2.01
on such immediately succeeding Business Day in an amount equal to the
amount of such Swingline Loan, and the procedures set forth in Section 2.02
shall be followed in making such ABR Revolving Loans, provided, that for
--------
the purposes of determining each Lender's Pro Rata Percentage with respect
to such Borrowing, the Swingline Loan to be repaid with the proceeds of
such borrowing shall be deemed to not be outstanding. The proceeds of such
ABR Revolving Loans shall be applied to repay such Swingline Loan.
(c) If, for any reason, ABR Revolving Loans may not be, or are not,
made pursuant to paragraph (b) of this Section 2.04 to repay any Swingline
Loan as required by such paragraph, effective on the date such ABR
Revolving Loans would otherwise have been made, each Tranche A Revolving
Lender severally, unconditionally and irrevocably agrees that it shall,
without regard to the occurrence of any Default, purchase a participating
interest in such Swingline Loan ("Unrefunded Swingline Loan") in an amount
--------------------------
equal to the amount of the ABR Revolving Loan which would otherwise have
been made by such Lender pursuant to paragraph (b) of this Section 2.04.
Each Tranche A Revolving Lender will immediately transfer to the
Administrative Agent, in immediately available funds, the amount of its
participation, and the proceeds of such participations shall be distributed
by the Administrative Agent to the Swingline Lender. All payments by the
Tranche A Revolving Lenders in respect of Unrefunded Swingline Loans and
participations therein shall be made in accordance with Section 2.14.
45
(d) Notwithstanding the foregoing, a Lender shall not have any
obligation to acquire a participation in a Swingline Loan pursuant to the
foregoing paragraphs if an Event of Default or Event of Termination shall
have occurred and be continuing at the time such Swingline Loan was made
and such Lender shall have notified the Swingline Lender in writing, at
least one Business Day prior to the time such Swingline Loan was made, that
such Event of Default or such Event of Termination has occurred and that
such Lender will not acquire participations in Swingline Loans made while
such Event of Default or such Event of Termination is continuing.
SECTION 2.05. Prepayments of Loans. (a) 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 2.18), in whole or in part, without
premium or penalty, upon irrevocable notice to the Administrative Agent not
later than (x) in the case of an Alternative Committed Currency Loan, 12:00
noon, London time, three Business Days prior to the date of such prepayment, and
(y) in the case of a Loan denominated in Dollars, 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) the Class of Loans to be prepaid and 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), provided that notice of any prepayment of Swingline Loans
--------
may be delivered to the Administrative Agent as late as, but no later than, 1:00
p.m., New York City time, on the date of such prepayment, and (iii) whether the
prepayment is of Alternative Committed 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 such notice shall
be due and payable on the date specified therein, together with accrued interest
to such date on the amount prepaid. Partial prepayments of Loans (other than
Swingline Loans) shall be in an aggregate principal amount of $5,000,000 (or the
equivalent based upon Assigned Dollar Values) or a whole multiple of $1,000,000
(or the equivalent based upon Assigned Dollar Values) in excess thereof (or, if
less, the remaining outstanding principal amount thereof). Partial prepayments
of Swingline Loans shall be in an aggregate principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the remaining
outstanding principal amount thereof).
46
(b) In the event and on such occasion that (i) the Aggregate Tranche A
Revolving Credit Exposure exceeds the Total Tranche A Revolving Credit
Commitment, CCSC shall prepay, or cause one or more of the Subsidiary
Borrowers to prepay, Tranche A Revolving Credit Borrowings or Swingline
Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.06(j)) in an aggregate amount equal to such excess or (ii) the Aggregate
Tranche B Revolving Credit Exposure exceeds the Total Tranche B Revolving
Credit Commitment, CCSC shall cause one or more of the French Borrowers to
prepay Tranche B Revolving Credit Borrowings in an aggregate amount equal
to such excess.
(c) In the event that as of any Revaluation Date in respect of an
Alternative Committed Currency Borrowing the Assigned Dollar Value thereof
shall either increase or decrease, then (i) on or prior to such Revaluation
Date, the Administrative Agent shall notify CCSC and the Revolving Lenders
of the amount of increase or decrease and the sum of the resulting
Aggregate Tranche A Revolving Credit Exposure or the Aggregate Tranche B
Revolving Credit Exposure and (ii) in the case of an increase, if the
resulting Aggregate Tranche A Revolving Credit Exposure or Aggregate
Tranche B Revolving Credit Exposure would exceed the Total Tranche A
Revolving Credit Commitment or the Total Tranche B Revolving Credit
Commitment, as applicable, after giving effect to such increase, then CCSC
shall, on the date such increase becomes effective, either (A) cause the
Borrower in respect of such Alternative Committed Currency Borrowing to
repay or prepay a portion thereof in an amount sufficient to reduce the
Assigned Dollar Value of such Borrowing to an amount equal to the Assigned
Dollar Value thereof before giving effect to such increase or (B) otherwise
prepay or cause to be prepaid Tranche A or Tranche B Revolving Loans, as
applicable, in an amount sufficient to reduce the Aggregate Tranche A
Revolving Credit Exposure or Aggregate Tranche B Revolving Credit Exposure,
as applicable, after giving effect to such increase, to an amount less than
or equal to the Total Tranche A Revolving Credit Commitment or the Total
Tranche B Revolving Credit Commitment, as applicable.
(d) In the event and on each occasion that any Net Cash Proceeds are
received by or on behalf of CCSC or any Subsidiary in respect of any
Prepayment Event, CCSC shall, immediately after such Net Cash Proceeds are
received prepay Term Borrowings in an aggregate amount equal to (i) in the
case of a Prepayment Event described in clause (a) of the definition
thereof the Asset Sale Prepayment Percentage (as defined below) of such Net
Cash Proceeds and (ii) in the case of all other Prepayment Events, 100% of
such Net Cash Proceeds. "Asset Sale Prepayment Percentage" means (1) 100%,
--------------------------------
until there are no Term Loans outstanding and the Revolving Credit
Commitments have been reduced to $2,400,000,000,(2) 0% thereafter, until
the total amount of Net Cash Proceeds received thereafter in respect of
Prepayment Events described in clause (a) of the definition of "Prepayment
Event" equals the Term Loan Reduction Amount, and (3) 50% thereafter. "Term
Loan Reduction Amount" means the aggregate principal amount of Term Loan
repayments and prepayments made by the Borrower but excluding the aggregate
principal amount of mandatory prepayments made pursuant to this Section
2.05(d).
47
SECTION 2.06. Letters of Credit. (a) General. Subject to the terms and
----------------- -------
conditions set forth herein, any Borrower (other than a French Borrower) may
request the issuance of Letters of Credit for its own account, in a form
reasonably acceptable to the Administrative Agent and the Issuing Bank, at any
time and from time to time during the Revolving Credit Commitment Period. In the
event of any inconsistency between the terms and conditions of this Agreement
and the terms and conditions of any form of letter of credit application or
other agreement submitted by such Borrower to, or entered into by such Borrower
with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. Each Letter of Credit shall be
denominated in Dollars.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
-----------------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the
----------
amendment, renewal or extension of an outstanding Letter of Credit), the
applicable Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved
by the Issuing Bank) to the Issuing Bank and the Administrative Agent
(reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of
Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
Issuing Bank, the applicable Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any
request for a Letter of Credit. A Letter of Credit shall be issued,
amended, renewed or extended only if (and upon issuance, amendment, renewal
or extension of each Letter of Credit the applicable Borrower shall be
deemed to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed $300,000,000 and (ii) the Aggregate Tranche A Revolving Credit
Exposure shall not exceed the Total Tranche A Revolving Credit Commitment.
With respect to any Letter of Credit which contains any "evergreen"
automatic renewal provision, the Issuing Bank shall be deemed to have
consented to any such extension or renewal provided that all of the
requirements of this Section 2.06 are met and no Default or Event of
Default exists.
48
(c) Expiration Date. Each Letter of Credit shall expire at or prior to
---------------
the close of business on the earlier of (i) the date one year after the
date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Credit
Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof) and without
any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Tranche A Revolving Lender, and each
Tranche A Revolving Lender hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Lender's Commitment
Percentage of the aggregate amount available to be drawn under such Letter
of Credit. In consideration and in furtherance of the foregoing, each
Tranche A Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of the Issuing Bank, such
Lender's Commitment Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the applicable Borrower on the date due as
provided in paragraph (e) of this Section, or of any reimbursement payment
required to be refunded to the applicable Borrower for any reason. Each
Tranche A Revolving Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Revolving Credit Commitments, and that each
such payment shall be made without any offset, abatement, withholding or
reduction whatsoever.
49
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the applicable Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal
to such LC Disbursement not later than 12:00 noon, New York City time, on
the date that such LC Disbursement is made, if the applicable Borrower
shall have received notice of such LC Disbursement prior to 10:00 a.m., New
York City time, on such date, or, if such notice has not been received by
the applicable Borrower prior to such time on such date, then not later
than 12:00 noon, New York City time, on (i) the Business Day that the
applicable Borrower receives such notice, if such notice is received prior
to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the applicable Borrower
receives such notice, if such notice is not received prior to such time on
the day of receipt; provided that the applicable Borrower may, subject to
--------
the conditions to borrowing set forth herein, request in accordance with
Section 2.02 or 2.04 that such payment be financed with an ABR Revolving
Borrowing or Swingline Loan in an equivalent amount and, to the extent so
financed, such Borrower's obligation to make such payment shall be
discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the applicable Borrower fails to make such payment when
due, the Administrative Agent shall notify each Tranche A Revolving Lender
of the applicable LC Disbursement, the payment then due from such Borrower
in respect thereof and such Lender's Commitment Percentage thereof.
Promptly following receipt of such notice, each Tranche A Revolving Lender
shall pay to the Administrative Agent its Commitment Percentage of the
payment then due from the applicable Borrower, in the same manner as
provided in Section 2.02 with respect to Loans made by such Lender (and
Section 2.02 shall apply, mutatis mutandis, to the payment obligations of
----------------
the Tranche A Revolving Lenders), and the Administrative Agent shall
promptly pay to the Issuing Bank the amounts so received by it from the
Tranche A Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the applicable Borrower pursuant
to this paragraph, the Administrative Agent shall distribute such payment
to the Issuing Bank or, to the extent that Tranche A Revolving Lenders have
made payments pursuant to this paragraph to reimburse the Issuing Bank,
then to such Lenders and the Issuing Bank as their interests may appear.
Any payment made by a Tranche A Revolving Lender pursuant to this paragraph
to reimburse the Issuing Bank for any LC Disbursement (other than the
funding of ABR Revolving Loans or a Swingline Loan as contemplated above)
shall not constitute a Loan and shall not relieve the applicable Borrower
of its obligation to reimburse such LC Disbursement.
50
(f) Obligations Absolute. The applicable Borrower's obligation to
---------------------
reimburse LC Disbursements as provided in paragraph (e) of this Section
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect
or any statement therein being untrue or inaccurate in any respect, (iii)
payment by the Issuing Bank under a Letter of Credit against presentation
of a draft or other document that does not comply with the terms of such
Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, such Borrower's obligations
hereunder. Neither the Administrative Agent, the Lenders nor the Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer
of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under
or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms
or any consequence arising from causes beyond the control of the Issuing
Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to such Borrower to the extent of any direct
damages (as opposed to consequential damages, claims in respect of which
are hereby waived by such Borrower to the extent permitted by applicable
law) suffered by such Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other
documents presented under a Letter of Credit comply with the terms thereof.
The parties hereto expressly agree that, in the absence of gross negligence
or wilful misconduct on the part of the Issuing Bank (as finally determined
by a court of competent jurisdiction), the Issuing Bank shall be deemed to
have exercised care in each such determination. In furtherance of the
foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make
payment upon such documents if such documents are not in strict compliance
with the terms of such Letter of Credit.
51
(g) Disbursement Procedures. The Issuing Bank shall, promptly
-------------------------
following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank
shall promptly notify the Administrative Agent and the applicable Borrower
by telephone (confirmed by telecopy) of such demand for payment and whether
the Issuing Bank has made or will make an LC Disbursement thereunder;
provided that any failure to give or delay in giving such notice shall not
--------
relieve such Borrower of its obligation to reimburse the Issuing Bank and
the Tranche A Revolving Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the applicable Borrower shall reimburse such LC
Disbursement in full on the date such LC Disbursement is made, the unpaid
amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the
applicable Borrower reimburses such LC Disbursement, at the rate per annum
then applicable to ABR Revolving Loans; provided that, if such Borrower
--------
fails to reimburse such LC Disbursement when due pursuant to paragraph (e)
of this Section, then Section 2.09(c) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any
Tranche A Revolving Lender pursuant to paragraph (e) of this Section to
reimburse the Issuing Bank shall be for the account of such Lender to the
extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
-------------------------------
at any time by written agreement among CCSC, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank.
At the time any such replacement shall become effective, CCSC shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant
to Section 2.11(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term "Issuing Bank" shall be deemed to refer to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks,
as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
52
(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that CCSC receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the
Loans has been accelerated, Tranche A Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure) demanding the
deposit of cash collateral pursuant to this paragraph, CCSC shall deposit
in an account with the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Lenders, an amount in cash
equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided that the obligation to deposit such cash
--------
collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any
kind, upon the occurrence of any Event of Default with respect to any
Borrower described in clause (i) of Section 7.01. Each such deposit shall
be held by the Administrative Agent as collateral for the payment and
performance of the obligations of CCSC under this Agreement and CCSC hereby
grants the Administrative Agent a security interest in respect of each such
deposit and the account in which such deposits are held. The Administrative
Agent shall have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Other than any interest earned on
the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at CCSC's risk
and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the
Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the
reimbursement obligations of CCSC for the LC Exposure at such time or, if
the maturity of the Loans has been accelerated (but subject to the consent
of Tranche A Revolving Lenders with LC Exposure representing greater than
50% of the total LC Exposure), be applied to satisfy other obligations of
the Borrowers under this Agreement. If CCSC is required to provide an
amount of cash collateral hereunder as a result of the occurrence of an
Event of Default, such amount (to the extent not applied as aforesaid)
shall be returned to CCSC within three Business Days after all Events of
Default have been cured or waived.
SECTION 2.07. [Reserved]
53
SECTION 2.08. 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 (i) on the Revolving Credit Maturity Date (or
such earlier date as, and to the extent that, such Revolving Loan becomes due
and payable pursuant to Section 2.04, Section 2.05, Section 2.13, Section 2.15,
Section 4.02(d) or Article VII), the unpaid principal amount of each Revolving
Loan and each Swingline Loan made to it by each such Lender, in the applicable
currency of such Loan, (ii) on the Non-Extended Term Loan Maturity Date (or such
earlier date as, and to the extent that, such Non-Extended Term Loan becomes due
and payable pursuant to Section 2.05 or Article VII), the unpaid principal
amount of each Non-Extended Term Loan held by each such Non-Extended Term
Lender, in Dollars and (iii) on the Extended Term Loan Maturity Date (or such
earlier date as, and to the extent that, such Extended Term Loan becomes due and
payable pursuant to Section 2.05 or Article VII), the unpaid principal amount of
each Extended Term Loan held by each such Extended Term Lender, in Dollars. 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 2.14(a)) on the unpaid principal
amount of the Revolving Loans, Swingline Loans and Term Loans made to it 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 2.09.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness 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 Class and Type of
each such Loan (including, if such Loan is a Term Loan, whether such Loan
is a Non-Extended Term Loan or an Extended Term 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.
54
(d) The entries made in the Register and accounts maintained pursuant
to paragraphs (b) and (c) of this Section 2.08 and the Notes maintained
pursuant to paragraph (e) of this Section 2.08 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 of each Class 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 G, with the blanks appropriately filled, payable to the order of
such Lender.
SECTION 2.09. 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 Revolving Loans denominated in
British Pounds 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 Revolving Loan denominated in
British Pounds Sterling, (A) the Adjusted LIBO Rate determined for
such Interest Period, plus (B) 2.00% per annum, plus, (C) if the
Borrower of such Loan is a U.K. Borrower, MLA Cost;
(ii) in the case of a Eurocurrency Revolving Loan denominated in
Dollars or an Alternative Committed Currency other than British Pounds
Sterling, (A) the Adjusted LIBO Rate determined for such Interest
Period, plus (B) 2.00% per annum; or
(iii) in the case of a Eurocurrency Term Loan (A) the Adjusted
LIBO Rate determined for such Interest Period plus (B) 4.50% per
annum.
55
(b) Each ABR Loan (including each Swingline 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 plus
(i) 3.50% per annum, in the case of a Term Loan or (ii) 1.00% per annum, in
the case of a Revolving Loan or Swingline Loan.
(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 annum which is (x) in the case of overdue
principal (except as otherwise provided in clause (y) below), the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions
of this Section 2.09 plus 2% per annum or (y) in the case of any overdue
----
interest, Facility Fee or other amount, the rate described in Section
2.09(b) applicable to an ABR Revolving Loan 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 on each Loan shall be payable in the currency in which
such Loan is denominated. Interest shall be payable in arrears on each
Interest Payment Date, provided that (i) interest accrued pursuant to
--------
paragraph (c) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an
ABR Revolving Loan prior to the end of the Revolving Credit Commitment
Period), accrued interest on the principal amount repaid or prepaid shall
be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurocurrency Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion. Interest in respect of
each Loan shall accrue from and including the first day of an Interest
Period to but excluding the last day of such Interest Period.
Notwithstanding the above, to the extent CCSC or any of its
Subsidiaries is permitted under this Agreement (as amended or amended and
restated from time to time) to create, incur, assume or permit to exist any
senior secured Indebtedness (a) the interest rate applicable to such senior
secured Indebtedness shall be at least 0.25% less than the interest rate
applicable to any Term Loan under this Agreement ("Interest Rate
Differential")or, (b) if not, CCSC shall, immediately after such senior
secured Indebtedness is created, incurred, assumed or permitted to exist,
enter into an amendment to this Agreement (in such form as reasonably
required by the Administrative Agent) to increase the interest rate
applicable to any Term Loan under this Agreement so that the Interest Rate
Differential is at least 0.25%.
56
SECTION 2.10. 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 2.11. Fees. (a) CCSC agrees to pay a facility fee (a "Facility
---- --------
Fee") to each Revolving 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 the date of this
Agreement and shall cease to accrue on the date (the "Facility Fee Termination
-------------------------
Date") that is the later of (i) the date on which the Revolving Credit
- ----
Commitment of such Lender shall be terminated as provided herein and (ii) the
date after the end of the Revolving Credit Commitment Period on which such
Lender ceases to have any Revolving Credit Exposure. The Facility Fee accrued to
each Revolving Lender shall equal 0.50% per annum multiplied by such Lender's
Facility Fee Average Daily Amount (as defined below) for the applicable quarter
(or shorter period commencing on the date of this Agreement 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 Revolving Credit Commitment (whether used or unused) for any applicable
days during the Lender's Revolving Credit Commitment Period or (ii) the Lender's
Revolving Credit Exposure for any applicable days during the period subsequent
to the Revolving 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 Dollars.
57
(b) CCSC agrees to pay (i) to the Administrative Agent for the account
of each Tranche A Revolving Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate of 2.00%
per annum on the average daily amount of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to
but excluding the later of the date on which such Lender's Tranche A
Revolving Credit Commitment terminates and the date on which such Lender
ceases to have any LC Exposure, and (ii) to the Issuing Bank a fronting
fee, which shall accrue at the rate of 0.25% per annum on the average daily
amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the
Tranche A Revolving Credit Commitments and the date on which there ceases
to be any LC Exposure, as well as the Issuing Bank's standard fees with
respect to the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees and
fronting fees (collectively, "LC Fees") accrued through and including the
-------
last day of March, June, September and December of each year shall be
payable on the third Business Day following such last day, commencing on
the first such date to occur after the Effective Date; provided that all
--------
such fees shall be payable on the date on which the Tranche A Revolving
Credit Commitments terminate and any such fees accruing after the date on
which the Tranche A Revolving Credit Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation
fees and fronting fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(c) CCSC agrees to pay to the Administrative Agent the administrative
and other fees separately agreed upon by CCSC and the Administrative Agent
in the Fee Letter to be payable to the Administrative Agent for its own
account and the accounts of the other parties to the Fee Letter, payable at
the times specified in the Fee Letter (the "Agent Fees"). CCSC shall pay
-----------
all Agent Fees in Dollars.
(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 and the parties to the Fee Letter. Once paid, none of the
Fees shall be refundable.
SECTION 2.12. Termination, Reduction or Adjustment of Commitments. (a)
------------------------------------------------------
Unless previously terminated, (i) the Term Commitments shall terminate at 5:00
p.m., New York City time, on the Effective Date and (ii) the Revolving Credit
Commitments shall terminate on the Revolving Credit Maturity Date.
58
(b) CCSC shall have the right, upon one Business Day's notice to the
Administrative Agent, to terminate or, from time to time, reduce the amount
of the Tranche A Revolving Credit Commitments or the Tranche B Revolving
Credit Commitments; provided that, subject to paragraph (f) below, no such
--------
termination or reduction of Revolving Credit Commitments shall be permitted
if, after giving effect thereto and to any repayments of the Loans made on
the effective date thereof, (i) any Term Loans shall be outstanding (unless
Term Lenders holding 100% of the outstanding Term Loans shall have approved
such reduction or termination), (ii) the Aggregate Tranche A Revolving
Credit Exposure then outstanding would exceed the Total Tranche A Revolving
Credit Commitment then in effect or (iii) the Aggregate Tranche B Revolving
Credit Exposure then outstanding would exceed the Total Tranche B Revolving
Credit Commitment then in effect. Any such reduction shall be in an amount
equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and
shall reduce permanently the Tranche A Revolving Credit Commitments or
Tranche B Revolving Credit Commitments, as applicable, then in effect.
(c) If any prepayment of Term Borrowings would otherwise be required
pursuant to Section 2.05 but cannot be made because there are no Term
Borrowings outstanding, or because the amount of the required prepayment
exceeds the outstanding amount of Term Borrowings, then, on the date that
such prepayment is required, the Revolving Credit Commitments shall be
permanently reduced by an aggregate amount equal to the amount of the
required prepayment, or the excess of such amount over the outstanding
amount of Term Borrowings, as the case may be, provided that the allocation
--------
of such reduction between the Tranche A Revolving Credit Commitments and
the Tranche B Revolving Credit Commitments shall be at CCSC's option.
(d) CCSC shall pay to the Administrative Agent for the account of the
applicable Revolving Lenders, on each date of termination or reduction of
the Revolving Credit Commitments, the Facility Fee on the amount of the
Revolving Credit Commitments so terminated or reduced accrued to the date
of such termination or reduction.
(e) Each reduction or increase, as applicable, in the Tranche A
Revolving Credit Commitments shall reduce or increase, as applicable, the
Swingline Commitment by an equal percentage.
59
(f) Notwithstanding anything to contrary in this Section 2.12, on
March 30, 2001, without any further action by any party hereto, (i) each
Tranche B Revolving Lender's Tranche B Revolving Credit Commitment shall be
permanently reduced by an amount equal to such Tranche B Revolving Lender's
Pro Rata Percentage of $75,000,000 and (ii) each Tranche A Revolving
Lender's Tranche A Revolving Credit Commitment shall be increased by an
amount equal to such Tranche A Revolving Lender's Pro Rata Percentage of
$75,000,000, provided that the foregoing adjustments shall not occur if (x)
--------
after giving effect thereto and to any repayments of the Loans made on the
effective date thereof, the Aggregate Tranche B Revolving Credit Exposure
then outstanding would exceed $250,000,000 or (y) CCSC shall have provided
written notice to the Administrative Agent no later than March 28, 2001
that such adjustments should not occur.
SECTION 2.13. 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 Adjusted LIBO Rate 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 a
majority in interest of the Lenders of the applicable Class that the
Adjusted LIBO Rate 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, then 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:
60
(I) In the case of Eurocurrency Loans that are Alternative
Committed Currency Loans, 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 Eurocurrency Loan shall be determined in
accordance with the following provisions of this Section 2.13(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 affected Lender;
(B) if no Substitute Interest Rate is agreed pursuant to
Section 2.13(a)(I)(A), any such Eurocurrency Loan converted,
continued or made by the Lenders pursuant to Section 2.13(a)(I)
shall bear interest during the subsequent Interest Period at the
rate per annum determined by the Administrative Agent pursuant to
Section 2.09(a) except that in the place of the Adjusted LIBO
Rate, 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; and
(C) if the Administrative Agent has required the Borrower to
enter into negotiations pursuant Section 2.13(a)(I)(A), the
Administrative Agent may (acting on the instructions of a
majority in interest of the Tranche A Revolving Lenders) declare
that no further Eurocurrency Revolving 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.
61
(II) Alternatively, in the case of Eurocurrency Revolving Loans,
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 Eurocurrency Revolving Loans shall be made in, or
prepaid pursuant to Section 2.05 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 Eurocurrency Revolving
Loans on the first day of such Interest Period. The provisions of
clauses (a)(i) and (a)(ii) above shall apply to the proposed Loans in
Another Currency (except that the time for a determination by or
notice to the Administrative Agent under clause (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 clause (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 2.13(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 Eurocurrency Loans be converted, continued or made
pursuant to either paragraph (I) or (II) above or (ii) under the
conditions provided in paragraph (II) above for this paragraph (III)
to apply or (iii) if the affected Eurocurrency Loans are Term Loans,
(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 Revolving Loans that are Alternative Committed
Currency Loans shall be prepaid on the first day of such Interest
Period and, if such day is during the Revolving Credit Commitment
Period, the Dollar Equivalent of such prepaid Revolving Loans may
simultaneously therewith be reborrowed in Dollars as ABR Loans.
62
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 (if the Applicable
Currency is Dollars) to convert ABR Loans to Eurocurrency Loans denominated in
the Applicable Currency, except as provided in Section 2.13(a)(I).
(b) If prior to 11:00 a.m., London time, two Business Days
before the first day of an Interest Period for an Alternative Committed Currency
Borrowing (including an initial Interest Period for a requested Alternative
Committed Currency Borrowing) any Revolving 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 Revolving Loan,
then such Lender shall not be required to make or maintain a Revolving 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 Revolving Loan be
made in, or prepaid pursuant to Section 2.05 and simultaneously therewith
reborrowed in, Another Currency in an amount that is the Currency Equivalent of
the Applicable Currency amount of the affected Revolving Loan on the first day
of such Interest Period. The first sentence of this clause (b) shall apply to
the proposed Revolving Loan 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 Revolving Lender give a notice under this clause (b)
with respect thereto, or should the Borrowers fail to request a Revolving Loan
in Another Currency, then such Lender shall instead (as described in Section
2.13(a)(III) above) make the affected Loan in, or the Borrower shall prepay the
affected Loan pursuant to Section 2.05 and reborrow in, Dollars on the first day
of such Interest Period. The Administrative Agent shall, no later than 3:00
p.m., London time, on such day, inform the Borrower if any Alternative Committed
Currency Loans are to be made in or prepaid and reborrowed in Dollars pursuant
to this Section 2.13(b). A Eurocurrency Borrowing comprised of two different
currencies pursuant to this Section 2.13(b) shall be referred to herein as a
"Multicurrency Borrowing".
-----------------------
63
SECTION 2.14. Pro Rata Treatment and Payments. (a) Each reduction of the
--------------------------------
Revolving Credit Commitments of the Revolving Lenders of either Class shall be
made pro rata according to the amounts of such Revolving 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 of the applicable Class. 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 Loans then held by the Lenders of the
applicable Class; 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
second succeeding sentence such that the Revolving Credit Exposure of each
Lender of the affected Class will be reduced pro rata in accordance with the
--------
Commitment Percentages of each Lender of the affected Class, then, the
Administrative Agent shall convert a portion of such payments into the
currencies required to so reduce the Revolving Credit Exposure of each Lender of
the affected Class pro rata after application of all such payments. Each payment
--------
(including each prepayment) by a Borrower on account of principal of and
interest on Swingline Loans shall be made pro rata according to the respective
--------
outstanding principal amounts of the Swingline Loans or participating interests
therein, as the case may be, then held by the relevant Lenders. 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., local time in the place of
payment, on the due date thereof to the Administrative Agent, for the account of
the Lenders of the applicable Class, at the Administrative Agent's New York
office specified in Section 10.01 (or, in the case of payments in Euro,
Deutschmarks or French Francs, at the office of the Administrative Agent
designated by the Administrative Agent from time to time as the place for
payments in Euro) 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 entitled thereto promptly upon receipt
in like funds as received. If any payment hereunder (other than payments on
Eurocurrency Loans) 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.
64
(b) Subject to Section 2.13, 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 2.14(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 Revolving Loans
hereunder, on demand, from the relevant Borrower, but without prejudice to
any right or claim that such Borrower may have against such Lender.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such
funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of interest and fees then due to such parties, and (ii)
second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and unreimbursed LC Disbursements then due to
such parties.
65
SECTION 2.15. 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 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 Eurocurrency Loans that are
Alternative Committed Currency 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).
SECTION 2.16. Requirements of Law. (a) The Borrowers agree to reimburse
--------------------
each Lender or the Issuing Bank for any increase in the cost to such Lender or
the Issuing Bank of, or any reduction in the amount of any sum receivable by
such Lender or the Issuing Bank 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
or participating in, issuing or maintaining any Letter of Credit, including,
without limitation, by reason of any requirements imposed by the Board upon the
making or funding of Eurocurrency Loans or participating in, issuing or
maintaining any Letter of Credit. Such Lender or the Issuing Bank, as
applicable, 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 or the Issuing Bank, as applicable, for such increased cost or reduced
amount. Such additional amounts shall be payable directly to such Lender or the
Issuing Bank, as applicable, 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.
66
(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 expected to be maintained by any Lender or the Issuing
Bank (or a holding company controlling such Lender or Issuing Bank) and
such Lender or the Issuing Bank determines (in its sole and absolute
discretion) that the rate of return on its capital (or the capital of its
holding company, as the case may be) as a consequence of its Revolving
Credit Commitment or the Loans made by it or its participations in
Swingline Loans or any issuance, participation or maintenance of Letters of
Credit is reduced to a level below that which such Lender or the Issuing
Bank (or its holding company) 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 or the Issuing Bank to CCSC, the Borrowers shall immediately
pay directly to such Lender or the Issuing Bank, as the case may be,
additional amounts sufficient to compensate such Lender or the Issuing Bank
(or its holding company) for such reduction in rate of return. A statement
of such Lender or the Issuing Bank 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 or the Issuing Bank may use any method
of averaging and attribution that it (in its sole and absolute discretion)
shall deem applicable.
(c) Neither the Issuing Bank nor any Lender shall be entitled to
compensation under this Section 2.16 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 2.16, neither the Issuing Bank nor any
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 the Issuing Bank or such Lender to demand such compensation in
similar circumstances under comparable provisions of other credit
agreements. In the event that the Issuing Bank or any Lender determines
that any event or circumstance that will lead to a claim under this Section
2.16 has occurred or will occur, the Issuing Bank or 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 the Issuing Bank or Lender
to demand and receive compensation under this Section 2.16, but without
prejudice to any claims of CCSC for compensation for actual damages
sustained as a result of any failure to observe this undertaking.
67
SECTION 2.17. 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, the Issuing Bank or any Lender (or any assignee of such
Lender or the Issuing Bank, as the case may be, or a participation holder or a
change in designation of the lending office of a Lender or the Issuing Bank, as
the case may be (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 or
the Issuing Bank, as the case may be, such additional amount or amounts as
is necessary to ensure that the net amount actually received by each Lender
or the Issuing Bank, as the case may be, will equal the full amount such
Lender or the Issuing Bank, as the case may be, would have received had no
such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent,
the Issuing Bank or any Lender or Transferee with respect to any payment
received by the Administrative Agent, the Issuing Bank or such Lender or
Transferee hereunder, the Administrative Agent, the Issuing Bank or such Lender
or Transferee 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.
68
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
Issuing Bank, the respective Lenders or Transferees, the required receipts or
other required documentary evidence, the Borrowers shall indemnify the Issuing
Bank, Lenders and Transferees for any incremental Taxes, interest, penalties or
other costs (including reasonable attorneys' fees and expenses) that may become
payable by the Issuing Bank, any Lender or Transferee as a result of any such
failure. For purposes of this Section 2.17, a distribution hereunder by the
Administrative Agent to or for the account of the Issuing Bank, any Lender or
Transferee 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 Effective
Date (in the case of each Lender that is a party hereto on the Effective Date)
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 W-8 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 under this Agreement other than those specified
in the immediately following paragraph, the Borrowers shall not be required to
indemnify or to pay any additional amounts to the Issuing Bank, any Lender or
Transferee with respect to any Taxes pursuant to this Section 2.17 to the extent
that (i) any obligation to withhold, deduct or pay amounts with respect to such
Tax existed on the date the Issuing Bank, such Lender or Transferee became a
party to this Agreement (and, in such case, Borrowers may deduct and withhold
such Tax from payments to the Issuing Bank, 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 the Issuing Bank, such Lender or Transferee).
69
With respect to Loans not denominated in Dollars and Loans made to non-U.S.
Subsidiaries, each relevant Lender or Transferee shall determine the extent to
which obligations to 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 2.17 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 2.17, 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 relevant Borrower was
not a participant to such arrangement (other than as a 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 such
--------
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) shall 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.
Neither the Issuing Bank nor any Lender shall be entitled to payment under
this Section 2.17 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 2.17. Notwithstanding any other provision of
this Section 2.17, neither the Issuing Bank nor any Lender shall demand any
payment referred to above if it shall not at the time be the general policy or
practice of the Issuing Bank or such Lender to demand such compensation in
similar circumstances under comparable provisions of other credit agreements. In
the event that the Issuing Bank or any Lender determines that any event or
circumstance that will lead to a claim by it under this Section 2.17 has
occurred or will occur, the Issuing Bank or 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 the Issuing Bank or any Lender to demand
and receive compensation under this Section 2.17, but without prejudice to any
claims of CCSC for failure to observe this undertaking.
70
SECTION 2.18. 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 an
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, 2.05, 2.08, 2.16 or 2.21
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 2.19. Change of Lending Office. Each Lender (or Transferee) agrees
------------------------
that, upon the occurrence of any event giving rise to the operation of Section
2.15, 2.16 or 2.17 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 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 2.19 shall
------------------
affect or postpone any of the obligations of any Borrower or the rights of any
Lender (or Transferee) pursuant to Sections 2.15, 2.16 and 2.17.
71
SECTION 2.20. Sharing of Setoffs. Each Lender agrees that if it shall,
------------------
through the exercise of a right of banker's lien, setoff or counterclaim against
a 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 Loans or participations in
LC Disbursements which at the time shall be due and payable as a result of which
the unpaid principal portion of its Loans and participations in LC Disbursements
which at the time shall be due and payable shall be proportionately less than
the unpaid principal portion of such Loans and participations in LC
Disbursements 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 and
participations in LC Disbursements of such other Lender, so that the aggregate
unpaid principal amount of such Loans and participations in LC Disbursements and
participations in such Loans and participations in LC Disbursements held by each
Lender shall be in the same proportion to the aggregate unpaid principal amount
of all such Loans and participations in LC Disbursements 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 or an LC
Disbursement 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
were a direct creditor directly to such Borrower in the amount of such
participation. Notwithstanding the foregoing, nothing in this Section 2.20 shall
be deemed to require any Term Lender to take any action which is inconsistent
with the priority repayment rights of the Term Lenders over the Revolving
Lenders provided in the Collateral Sharing Agreement.
72
SECTION 2.21. Assignment of Commitments Under Certain Circumstances. In the
-----------------------------------------------------
event that any Lender shall have delivered a notice or certificate pursuant to
Section 2.13(b), 2.15 or 2.16, or the Borrowers shall be required to make
additional payments to any Lender under Section 2.17, CCSC shall have the right,
but not the obligation, at its own expense, upon notice to such Lender and the
Administrative Agent, 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, the Issuing Bank and the Swingline Lender (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 and
participations in LC Disbursements and Swingline Loans held by such Lender
hereunder and all other amounts accrued for such Lender's account or owed to it
hereunder (including, without limitation, any Facility Fees).
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 (a) is a corporation, partnership or other form of legal entity,
validly organized and existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, (b) has
all requisite power and authority to carry on its business as now conducted, (c)
is duly qualified to do business and is in good standing as a foreign
corporation or foreign partnership (or comparable foreign qualification, if
applicable, in the case of any other form of legal entity), 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 result in a
Material Adverse Effect, and (d) 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.
73
SECTION 3.02. Due Authorization, Non-Contravention, etc. The execution,
---------------------------------------------
delivery and performance by each Loan Party of this Agreement and each other
Loan Document executed or to be executed by it, the borrowing of the Loans, the
use of the proceeds thereof and the issuance of the Letters of Credit hereunder
are within each Loan Party's corporate, partnership or comparable powers, as the
case may be, have been duly authorized by all necessary corporate, partnership
or comparable and, if required, stockholder action, as the case may be, and do
not
(a) contravene the Organic Documents of CCSC or any of its
Subsidiaries (other than Immaterial Subsidiaries);
(b) contravene any law or governmental regulation or court decree or
order binding on or affecting CCSC or any of its Subsidiaries (other than
Immaterial Subsidiaries);
(c) violate or result in a default under any indenture, agreement or
other instrument binding upon CCSC or any of its Subsidiaries (other than
Immaterial Subsidiaries); or
(d) result in, or require the creation or imposition of, any material
Lien on any assets of CCSC or any of its Subsidiaries (other than
Immaterial Subsidiaries), except Liens created under the Loan Documents.
SECTION 3.03. Government Approval, Regulation, etc. No consent,
-------------------------------------------
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority or regulatory body or other Person is required for
the due execution, delivery or performance by CCSC or any other Loan Party of
this Agreement or any other Loan Document, the borrowing of the Loans, the use
of the proceeds thereof and the issuance of Letters of Credit hereunder, except
such as have been obtained or made and are in full force and effect and except
filings necessary to perfect Liens under the Loan Documents. 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.
74
SECTION 3.04. Validity, etc. This Agreement has been duly executed and
--------------
delivered by each Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligation of such Borrower or
such Loan Party (as the case may be) 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 to general principles of equity.
SECTION 3.05. Financial Information. (a) The consolidated balance sheets of
---------------------
CCSC and its Subsidiaries as of December 31, 1999, reported on by
PricewaterhouseCoopers, independent public accountants, and September 30, 2000,
certified by CCSC's chief financial officer, 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 and
cash flows for the periods then ended (subject, in the case of the financial
statements as of and for the period ended September 30, 2000, to normal year-end
adjustments and to the absence of notes).
(b) Except as disclosed in the financial statements referred to above
or the notes thereto or in the Information Memorandum, none of CCSC or its
Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
SECTION 3.06. No Material Adverse Change. Since December 31, 1999, there
---------------------------
has been no material adverse change in the business, assets, operations or
condition (financial or otherwise) of CCSC and its Subsidiaries taken as a
whole, except as disclosed in the Information Memorandum.
SECTION 3.07. Litigation. There is no pending or, to the knowledge of any
----------
Borrower, threatened litigation, action or proceeding, affecting CCSC or any of
its Subsidiaries, or any of their 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.
75
SECTION 3.08. Compliance with Laws and Agreements. Each of CCSC and its
-------------------------------------
Subsidiaries is in compliance with all laws (other than Environmental Laws,
which are the subject of Section 3.13), regulations and orders of any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so will not result in a Material Adverse Effect. No Default
has occurred and is continuing.
SECTION 3.09. Subsidiaries. Schedule 3.09 sets forth the name of, and the
------------
direct or indirect ownership interest of CCSC in, each Subsidiary of CCSC and
identifies each Subsidiary that is a Loan Party, in each case as of the
Effective Date.
SECTION 3.10. Ownership of Properties. Each of CCSC and its Subsidiaries
-----------------------
(other than Immaterial Subsidiaries) has good and marketable title to or valid
leasehold interests in, or is licensed to use, 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 which could reasonably be expected
to have a Material Adverse Effect) except as permitted pursuant to Section 6.02.
SECTION 3.11. Taxes. Each of CCSC and its Subsidiaries has timely 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.
76
SECTION 3.12. Pension and Welfare Plans. During the
-----------------------------------
twelve-consecutive-month period prior to the Effective Date, 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 or Welfare Plan which reasonably might result in the incurrence
by CCSC or any ERISA Affiliate of any liability, fine or penalty which will have
a Material Adverse Effect. Neither CCSC nor any ERISA Affiliate has withdrawn or
partially withdrawn (or reasonably expects to withdraw or partially withdraw)
from any multiemployer plan (as defined in Section 3(37) of ERISA), 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 3.13. Environmental Warranties. (a) All facilities and property
-------------------------
owned or leased by CCSC or any of its Subsidiaries, and all operations conducted
thereon, are 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,
which violation or potential liability singly or in the aggregate will have a
Material Adverse Effect;
(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 Environmental Permits necessary or desirable for their businesses,
except for such Environmental Permits which, if not so obtained or as to
which CCSC and its Subsidiaries are not in compliance (in each case singly
or in the aggregate), will not have a Material Adverse Effect;
77
(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 (with
respect to owned property only) for listing 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,
individually or in the aggregate, have, or will have, a Material Adverse
Effect.
SECTION 3.14. Regulations 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 U or X.
SECTION 3.15. Disclosure; Accuracy of Information. CCSC has disclosed to
------------------------------------
the Lenders all agreements, instruments and corporate or other restrictions to
which it or any of its Subsidiaries is subject, and all other matters known to
any of them that, individually or in the aggregate, could reasonably be expected
to result in a Material Adverse Effect. 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 (including, without limitation, the Information Memorandum) contains
any untrue statement of a material fact or omits to state any 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. It is
understood that no representation or warranty is made concerning any forecasts,
estimates, pro forma information, projections and statements as to anticipated
future performance or conditions, and the assumptions on which they were based.
78
SECTION 3.16. Insurance. As of the Effective Date, all premiums in respect
---------
of insurance maintained by or on behalf of CCSC and its Subsidiaries as of such
date have been paid. CCSC reasonably believes that the insurance maintained by
or on behalf of itself and its Subsidiaries is adequate.
SECTION 3.17. Labor Matters. Except as could not reasonably be expected to
-------------
have a Material Adverse Effect, (a) as of the Effective Date, there are no
strikes, lockouts or slowdowns against CCSC or any Subsidiary pending or, to the
knowledge of CCSC, threatened; (b) the hours worked by and payments made to
employees of CCSC and the Subsidiaries have not been in violation of the Fair
Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters; and (c) all payments due from CCSC or any Subsidiary,
or for which any claim may be made against CCSC or any Subsidiary, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accrued as a liability on the books of CCSC or such Subsidiary.
SECTION 3.18. Solvency. Immediately following the making of each Loan made
--------
on the Effective Date and after giving effect to the application of the proceeds
of such Loans, (a) the fair value of the assets of each Loan Party, at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of each Loan
Party will be greater than the amount that will be required to pay the probable
liability of its debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured; (c)
each Loan Party will be able to pay its debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and
matured; (d) each Loan Party will not have unreasonably small capital with which
to conduct the business in which it is engaged as such business is now conducted
and is proposed to be conducted following the Effective Date; and (e) none of
the French Borrowers is unable to pay its debts as they fall due ("etat de
cessation des paiements") or has initiated voluntary arrangements with its
creditors ("reglement amiable") or is subject to insolvency proceedings
("redressement ou liquidation judiciaire"), in each case as construed by
articles L. 611-1 and seq. and L. 620-1 and seq. of the French Commercial Code
("code de commerce").
79
SECTION 3.19. Security Documents. (a) The Pledge Agreements are effective
-------------------
to create in favor of the Collateral Agent, for the ratable benefit of the
Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreements) and, when such Collateral is
delivered to the Collateral Agent, the Pledge Agreements shall constitute a
fully perfected Lien on, and security interest in, all right, title and interest
of the pledgor thereunder in such Collateral, in each case prior and superior in
right to any other Person other than Liens described in clause (a) of the
definition of Permitted Encumbrances and subject to the terms of the
Intercreditor Agreement; provided that the actions specified in Schedule 3.19(a)
--------
are required to be taken in connection with the pledge of capital stock of
Foreign Subsidiaries.
(b)(i) The Security Agreements are effective to create in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in
the Security Agreements) and, (ii)(A) when financing statements in
appropriate form are filed in the offices specified on Schedule 6 to the
Perfection Certificate, the U.S. Security Agreement and (B) when the
actions specified in Schedule 3.19(b) are taken, the Foreign Security
Agreements, shall each constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in
such Collateral (other than the Intellectual Property (as defined in the
Security Agreements)), in each case prior and superior in right to any
other Person, other than with respect to Liens expressly permitted by
Section 6.02 and subject to the terms of the Intercreditor Agreement.
(c) When the filings in clause (b)(ii)(A) above are made and when the
U.S. Security Agreement (or a summary thereof) is filed in the United
States Patent and Trademark Office and the United States Copyright Office,
the U.S. Security Agreement shall constitute a fully perfected Lien on, and
security interest in, all right, title and interest of the Loan Parties
(other than Foreign Loan Parties) in the Intellectual Property (as defined
in the U.S. Security Agreement) in which a security interest may be
perfected by filing, recording or registering a security agreement,
financing statement or analogous document in the United States Patent and
Trademark Office or the United States Copyright Office, as applicable, in
each case prior and superior in right to any other Person (it being
understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a Lien on registered trademarks, trademark applications and
copyrights acquired by the Loan Parties (other than Foreign Loan Parties)
after the Effective Date).
80
(d) Each Mortgage, when duly executed and delivered by the relevant
Loan Party, will be effective to create, subject to the exceptions listed
in each title insurance policy covering such Mortgage, in favor of the
Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable Lien on all of the Loan Parties' right, title and
interest in and to the Mortgaged Properties thereunder and the proceeds
thereof, and when the Mortgages are filed in the offices specified on
Schedule 3.19(d), the Mortgages shall constitute a Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Mortgaged Properties and the proceeds thereof, in each case prior and
superior in right to any other Person, other than with respect to the
rights of Persons pursuant to Liens expressly permitted by Section 6.02.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The amendments to the Original Credit
---------------
Agreement effected hereby and the obligations of the Term Lenders to make Term
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 10.08):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received, on behalf of itself
and the Lenders, favorable written opinions of each of (i) Dechert, U.S.,
U.K. and French counsel for the Loan Parties and (ii) Holters & Elsing,
German counsel for the Loan Parties, substantially to the effect set forth
in Exhibits M and O, respectively, (A) dated the Effective Date and (B)
addressed to the Administrative Agent and the Lenders.
81
(c) 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 & Moore,
counsel for the Administrative Agent.
(d) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated
the Effective 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.
(f) The Administrative Agent shall have received all fees payable to
the Administrative Agent or any Lender on or prior to the Effective Date
and, to the extent invoiced, all other amounts due and payable pursuant to
the Loan Documents on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses (including reasonable fees, charges and disbursements of counsel)
required to be reimbursed or paid by the Borrowers hereunder or under any
other Loan Document.
(g) The Collateral Agent shall have received counterparts of (A) the
U.S. Pledge Agreement signed on behalf of each U.S. Loan Party, (B) Foreign
Pledge Agreements covering pledges by Domestic Subsidiaries of Equity
Interests held by them in Subsidiaries organized in France and Germany, (C)
French Delegations of Dividends by the French Holding Companies and (D) if
any Borrower is a Foreign Subsidiary, a Foreign Pledge Agreement signed on
behalf of each Foreign Loan Party (except for Foreign Loan Parties whose
execution of a Foreign Pledge Agreement would violate applicable law or
would, in the reasonable good faith judgment of CCSC, subject the directors
or officers of such Foreign Loan Party to criminal or other personal
liability), in each case, together with certificates representing all the
outstanding Equity Interests of each Subsidiary owned by or on behalf of
any U.S. Loan Party as of the Effective Date (except that such delivery of
certificates representing Equity Interests of a Foreign Subsidiary that is
not a Subsidiary Loan Party may be limited to 65% of the outstanding Equity
Interests of such Foreign Subsidiary), promissory notes (to the extent such
notes exist on the Effective Date) evidencing all intercompany Indebtedness
owed to any Loan Party by any Borrower or any Subsidiary as of the
Effective Date and stock powers and instruments of transfer, endorsed in
blank, with respect to such certificates and promissory notes. The
Collateral Agent shall have received evidence that all actions specified in
Schedule 3.19(a) have been taken.
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(h) The Collateral Agent shall have received counterparts of (i) the
U.S. Security Agreement signed on behalf of each U.S. Loan Party, and (B)
if any Borrower is a Foreign Subsidiary, a Foreign Security Agreement or
Agreements signed on behalf of each Foreign Loan Party (except for Foreign
Loan Parties whose execution of a Foreign Security Agreement would violate
applicable law or would, in the reasonable good faith judgment of CCSC,
subject the directors or officers of such Foreign Loan Party to criminal or
other personal liability), in each case, together with the following:
(A) all documents and instruments, including Uniform Commercial
Code financing statements, required by law or reasonably requested by
the Administrative Agent to be filed, registered or recorded to create
or perfect the Liens intended to be created under the applicable
Security Agreement; and
(B) a completed Perfection Certificate dated the Effective Date
and signed by an executive officer or Financial Officer of CCSC,
together with all attachments contemplated thereby, including the
results of a search of the Uniform Commercial Code (or equivalent)
filings made with respect to the Loan Parties in the jurisdictions
contemplated by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search and
evidence reasonably satisfactory to the Administrative Agent that the
Liens indicated by such financing statements (or similar documents)
are permitted by Section 6.02 or have been released.
83
(i) The Administrative Agent shall have received (i) counterparts
of the U.S. Guarantee Agreement signed on behalf of each Domestic
Subsidiary, (ii) if any Borrower is a Foreign Subsidiary, a Foreign
Guarantee Agreement signed on behalf of each Foreign Loan Party
(except for Foreign Loan Parties whose execution of a Foreign
Guarantee Agreement would violate applicable law or would, in the
reasonable good faith judgment of CCSC, subject the directors or
officers of such Foreign Loan Party to criminal or other personal
liability) and (iii) counterparts of the Indemnity, Subrogation and
Contribution Agreement signed on behalf of each U.S. Loan Party.
(j) The Collateral Agent shall have received a counterpart of the
Collateral Sharing Agreement signed on behalf of CCSC.
(k) The Administrative Agent shall have received evidence that
the insurance required by Section 5.04 and the Security Documents is
in effect.
(l) Any Competitive Loans (as defined in the Original Credit
Agreement) outstanding under the Original Credit Agreement shall have
been repaid.
(m) The Administrative Agent shall have received a counterpart of
the Intercreditor Agreement signed on behalf of each party thereto.
The Administrative Agent shall notify CCSC and the Lenders of the Effective
Date, and such notice shall be conclusive and binding. Notwithstanding the
foregoing, the amendments to the Original Credit Agreement to be effected
pursuant to this Agreement and the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.08) at or prior to 5:00 p.m., New York City time, on
March 5, 2001 (and, in the event such conditions are not so satisfied or waived,
this Agreement shall terminate at such time).
SECTION 4.02. Conditions to Each Credit Event. The agreement of each Lender
-------------------------------
to make any Loan and of the Issuing Bank to issue, amend, renew or extend any
Letter of Credit (such event being called a "Credit Event") (excluding
-------------
continuations and conversions of Loans) requested to be made by it on any date
is subject to the satisfaction of the following conditions:
84
(a) The Administrative Agent shall have received a notice of such
Credit Event as required by Section 2.02, 2.04 or 2.06, as applicable (or
such notice shall have been deemed given in accordance with Section
2.04(b)).
(b) The representations and warranties set forth in Article III hereof
and in the other Loan Documents 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 Default
shall have occurred and be continuing.
(d) If the relevant Borrower is a Subsidiary Borrower, CCSC shall have
delivered to the Administrative Agent (i) a Subsidiary Borrower Notice and
Designation for such Subsidiary Borrower, countersigned by such Subsidiary
Borrower and (ii) if such Subsidiary Borrower Notice and Designation is
delivered after the Effective Date, notice of the name of such Subsidiary
Borrower and the jurisdiction in which it is domiciled, which notice shall
be delivered at least five Business Days prior to the date of the first
Borrowing by such Subsidiary Borrower (and shall be distributed by the
Administrative Agent to the Lenders promptly upon receipt). 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 Letters of Credit issued for the account of such
Subsidiary Borrower shall have been terminated, 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 H, 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.
85
(f) If the relevant Borrower is a French Borrower, the Collateral
Agent shall have received (i) a solvency certificate in the form of Exhibit
P duly executed by a senior officer of such Subsidiary Borrower and (ii) an
auditors' certificate relating to such Subsidiary Borrower in the form of
Exhibit Q, dating from no more than three months prior to the date of the
Credit Event.
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.
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees and other amounts payable hereunder or under
any other Loan Document have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrowers covenant and agree with the Lenders that:
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), if certified as required in this
clause (a), shall satisfy the requirements set forth in this clause);
86
(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 PricewaterhouseCoopers 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), if certified as required in this clause (b), 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 Sections 6.12, 6.13 and 6.14 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
that has occurred and is continuing, or, if such Financial Officer has
become aware of such Default, describing such Default and the steps, if
any, being taken to cure it and concurrently with the delivery of the
foregoing financial statements, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(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
Sections 6.12, 6.13 and 6.14 and representing as to the absence of any
Default;
87
(d) no later than 30 days following the commencement of each Fiscal
Year of CCSC, a detailed consolidated budget for such fiscal year
(including a projected consolidated balance sheet and related statements of
projected operations and cash flow as of the end of and for each month
during such Fiscal Year) and, promptly when available, any significant
revisions of such budget;
(e) as soon as possible and in any event within three Business Days
after becoming aware of the occurrence of any 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;
(f) 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 or proceeding described in Section 3.07 which could
reasonably be expected to result in a Material Adverse Effect or (ii) the
commencement of any litigation, action or proceeding of the type described
in Section 3.07, which could reasonably be expected to 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, notice thereof and copies of
all documentation relating thereto;
(g) 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;
(h) 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 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 could reasonably be expected to 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 which could reasonably be expected to
have a Material Adverse Effect, notice thereof and copies of all
documentation relating thereto;
88
(i) as soon as possible, notice of any other development that could
reasonably be expected to result in a Material Adverse Effect;
(j) on the 10th day of each month (or, if not a Business Day, the
Business Day immediately following such day) a report setting forth (i) a
description of the status of CCSC's asset sale program in such detail
reasonably acceptable to the Administrative Agent, (ii) the amount of
aggregate commitments, aggregate outstandings and aggregate unused
availability on such date under the Permitted Receivables Financing, (iii)
the amount of aggregate unused availability on such date of Revolving
Credit Commitments, (iv) the aggregate amount of Permitted Investments held
by CCSC and its Subsidiaries on such date and (v) the aggregate amount of
cash held in immediately available funds by CCSC and its Subsidiaries on
such date;
(k) 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 existence and its
qualification as a foreign corporation or partnership (or comparable
foreign qualification, if applicable, in the case of any other form of
legal entity), and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its property
except as provided in Section 5.09.
89
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, 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 financially sound and responsible
insurance companies (a) 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 operating in the same or similar locations and (b) all insurance
required to be maintained pursuant to the Security Documents, 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.
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
Environmental Permits in effect and remain in compliance therewith, except
where the failure to keep in effect such Environmental Permits, 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;
90
(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.
SECTION 5.07. Information Regarding Collateral. (a) CCSC will furnish to
---------------------------------
the Administrative Agent prompt written notice of any change (i) in any Loan
Party's corporate name or in any trade name used to identify it in the conduct
of its business or in the ownership of its properties, (ii) in the location of
any Loan Party's chief executive office, its principal place of business, any
office in which it maintains books or records relating to Collateral owned by it
or any office or facility at which Collateral owned by it is located (including
the establishment of any such new office or facility), (iii) in any Loan Party's
identity or corporate structure, (iv) in any Loan Party's Federal Taxpayer
Identification Number or (v) in any Loan Party's jurisdiction of organization.
CCSC agrees not to effect or permit any change referred to in the preceding
sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for the Collateral Agent to continue at all
times following such change to have a valid, legal and perfected security
interest in all the Collateral. CCSC also agrees promptly to notify the
Administrative Agent if any material portion of the Collateral is damaged or
destroyed.
(b) Each year, at the time of delivery of annual financial statements
with respect to the preceding fiscal year pursuant to clause (b) of Section
5.01, CCSC shall deliver to the Administrative Agent a certificate of a
Financial Officer and the chief legal officer of CCSC (i) setting forth the
information required pursuant to Sections 1, 2, 7, 8 and 9 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered
pursuant to this Section and (ii) certifying that all Uniform Commercial
Code financing statements (including fixture filings, as applicable) or
other appropriate filings, recordings or registrations, including all
refilings, rerecordings and reregistrations, containing a description of
the Collateral have been filed of record in each governmental, municipal or
other appropriate office in each jurisdiction identified pursuant to clause
(i) above to the extent necessary to protect and perfect the security
interests under the Security Documents for a period of not less than 18
months after the date of such certificate (except as noted therein with
respect to any continuation statements to be filed within such period).
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SECTION 5.08. Existence; Conduct of Business. CCSC will, and will cause
-------------------------------
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names material to the conduct of its business; provided
--------
that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION 5.09. Payment of Obligations. CCSC will, and will cause each of its
----------------------
Subsidiaries to, pay its Indebtedness and other obligations, including Tax
liabilities, before the same shall become delinquent or in default, except where
(a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) CCSC or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (c) such contest
effectively suspends collection of the contested obligation and the enforcement
of any Lien securing such obligation and (d) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.10. Casualty and Condemnation. (a) CCSC (a) will furnish to the
-------------------------
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of any Collateral or the
commencement of any action or proceeding for the taking of any material portion
of any Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding and (b) will ensure that the Net
Cash Proceeds of any such event (whether in the form of insurance proceeds,
condemnation awards or otherwise) are collected and applied in accordance with
the applicable provisions of this Agreement and the Security Documents.
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SECTION 5.11. Additional Subsidiaries; Holding Company Reorganization. (a)
--------------------------------------------------------
If any additional Subsidiary is formed or acquired or any existing Subsidiary is
designated as a Foreign Loan Party after the Effective Date (other than, in the
case of newly formed or acquired Subsidiaries, (x) a "shell" Subsidiary with no
material assets formed in connection with, and solely for the purpose of,
effecting a sale of assets, merger or other transaction permitted by this
Agreement or (y) a Subsidiary formed in connection with, and solely for the
purpose of, a Permitted Receivables Financing), CCSC will notify the
Administrative Agent and the Lenders thereof and (i)(A) if such Subsidiary is a
Domestic Subsidiary, CCSC will cause such Subsidiary to become a party to the
U.S. Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement
and each applicable U.S. Security Document and (B) if such Subsidiary is a
Foreign Subsidiary and a Subsidiary Loan Party, CCSC will cause such Subsidiary
to become a party to a Foreign Guarantee Agreement and each applicable Foreign
Security Document, in each case, in the manner provided therein, within three
Business Days after such Subsidiary is formed or acquired and promptly take such
actions to create and perfect Liens on such Subsidiary's assets to secure the
U.S. Obligations and/or Foreign Obligations, as applicable, as the
Administrative Agent or the Required Lenders shall reasonably request, unless
the execution of any such Agreement or the taking of any such actions by such
Foreign Subsidiary would violate applicable law or would, in the reasonable good
faith judgment of CCSC, subject the directors or officers of such Foreign
Subsidiary to criminal or other personal liability, and (ii) subject to
paragraph (c) below, if any Equity Interests or Indebtedness of such Subsidiary
are owned by or on behalf of any Loan Party, CCSC will cause certificates
evidencing such Equity Interests and promissory notes evidencing such
Indebtedness (to the extent such notes exist at such time) to be pledged
pursuant to the applicable Pledge Agreement within three Business Days after
such Subsidiary is formed or acquired (except that, if such Subsidiary is a
Foreign Subsidiary and is not a Subsidiary Loan Party, Equity Interests of such
Subsidiary that are owned by or on behalf of any Borrower or a Subsidiary Loan
Party which is a Domestic Subsidiary and that are to be pledged pursuant to the
U.S. Pledge Agreement may be limited to 65% of the outstanding Equity Interests
of such Subsidiary).
93
(b) CCSC agrees that in conjunction with effecting any transaction
pursuant to which a corporation owned, directly or indirectly, by CCSC or
by the stockholders of CCSC in substantially the same proportions as their
ownership of Equity Interests of CCSC (a "Holding Company"), whether
----------------
pursuant to a holding company reorganization or otherwise, acquires
ownership of Equity Interests in CCSC so that CCSC will become a Subsidiary
of such Holding Company, CCSC shall cause such Holding Company to become a
party to this Agreement (and at such time all references to CCSC in this
Agreement shall be deemed to also be references to such Holding Company),
the U.S. Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement and each applicable U.S. Security Document and shall cause such
Holding Company to pledge its Equity Interests in CCSC pursuant to a U.S.
Pledge Agreement.
(c) Notwithstanding any provision to the contrary in this Agreement or
in the Pledge Agreements, the Loan Parties shall not be required to pledge
the Equity Interests of any Foreign Subsidiary (other than a Foreign Loan
Party) so long as the value of such Equity Interests is not material and
such Foreign Subsidiary is organized in a jurisdiction that renders the
pledging of such Equity Interests unreasonably burdensome, in each case
determined by the Administrative Agent based on information provided to it
by CCSC.
SECTION 5.12. Further Assurances. (a) CCSC will, and will cause each
-------------------
Subsidiary Loan Party to, execute any and all further documents, financing
statements, agreements and instruments, and take all such further actions
(including the filing and recording of financing statements, fixture filings,
mortgages, deeds of trust and other documents), which may be required under any
applicable law, or which the Administrative Agent or the Required Lenders may
reasonably request, to effectuate the transactions contemplated by the Loan
Documents or to grant, preserve, protect or perfect the Liens created by the
Security Documents or the validity or priority of any such Lien, all at the
expense of the Loan Parties. CCSC also agrees to provide to the Administrative
Agent, from time to time upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
(b) If any material assets (including any domestic real property or
improvements thereto or any interest therein) are acquired by a Borrower or
any Subsidiary Loan Party after the Effective Date (other than assets
constituting Collateral under a Security Agreement that become subject to
the Lien of such Security Agreement upon acquisition thereof), CCSC will
notify the Administrative Agent and the Lenders thereof, and, if requested
by the Administrative Agent or the Required Lenders, CCSC will cause such
assets to be subjected to a Lien securing the U.S. Obligations and/or
Foreign Obligations, as applicable, and will take, and cause the Subsidiary
Loan Parties to take, such actions as shall be necessary or reasonably
requested by the Administrative Agent to grant and perfect such Liens,
including actions described in paragraphs (a) and (c) of this Section, all
at the expense of the Loan Parties, unless, in the case of any Foreign Loan
Party, the creation of such Lien or the taking of any such actions by such
Foreign Loan Party would violate applicable law or would, in the reasonable
good faith judgment of CCSC, subject the directors or officers of such
Foreign Loan Party to criminal or other personal liability.
94
(c) CCSC shall, and shall cause its Subsidiaries to, use its
reasonable best efforts to cause the Collateral Agent to receive (i)
counterparts of a Mortgage with respect to each Mortgaged Property duly
executed and delivered by the record owner of such Mortgaged Property, (ii)
a policy or policies of title insurance issued by a nationally recognized
title insurance company insuring the Lien of each such Mortgage as a valid
first Lien on the Mortgaged Property described therein, free of any other
Liens except as expressly permitted by Section 6.02, in form and substance
reasonably acceptable to the Collateral Agent, together with such
endorsements, coinsurance and reinsurance as the Administrative Agent or
the Required Lenders may reasonably request and (iii) such other customary
documentation with respect to the Mortgaged Properties as the Collateral
Agent may reasonably require, in each case no longer than 60 days following
the Effective Date.
(d) CCSC shall ensure that the Collateral Agent will receive prior to
March 15, 2001 (i) all the French Delegations of Dividends relating to the
French Borrowers that are not French Holding Companies, executed by the
parties thereto, (ii) a delegation of dividends relating to the dividends
to be paid by Hellas Can to Societe de Participations CarnaudMetalbox SA,
substantially in the form of the French Delegations of Dividends, executed
by the parties thereto and (iii) a legal opinion from the French counsel to
the French Borrowers relating to such delegations of dividends reasonably
satisfactory in form and substance to the Collateral Agent.
(e) CCSC shall use its reasonable best efforts to cause the Collateral
Agent to receive, within sixty days of the date hereof, and in a form and
substance reasonably satisfactory to the Collateral Agent, (i) agreements
pertaining to the pledge over the going concerns ("fonds de commerce") of
Etablissements Polyflex SA, La Francaise de Developpement de la Boite
Boissons SA and Crown Cork Company France SA in favor of the Collateral
Agent and (ii) a legal opinion from the French counsel to the French
Borrowers relating to such pledges over the going concerns.
95
SECTION 5.13. Use of Proceeds. CCSC covenants and agrees that the proceeds
---------------
of all Borrowings hereunder and all Letters of Credit issued hereunder will be
used for general corporate purposes; provided that the proceeds of all Term
--------
Loans will be applied on the Effective Date to pay fees and expenses payable
hereunder on the Effective Date, to repay any Swingline Loans outstanding and to
prepay Revolving Loans.
SECTION 5.14. Release of Collateral. Upon the sale or other transfer of any
---------------------
Collateral held under any Foreign Security Document that is permitted hereunder
to any Person that is not a Loan Party, or, upon the effectiveness of any
written consent to the release of the security interest granted in any such
Collateral pursuant to Section 10.08, that security interest shall be
automatically released. In connection with such release, the Collateral Agent
shall execute and deliver to the appropriate Loan Party, at such Loan Party's
expense, all documents that such Loan Party shall reasonably request to evidence
such termination or release. Any execution and delivery of documents pursuant to
this Section 5.14 shall be without recourse to or warranty by the Collateral
Agent.
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees and other amounts payable hereunder or under
any other Loan Document have been paid in full and all Letters of Credit have
expired or terminated and all LC Disbursements shall have been reimbursed, the
Borrowers covenant and agree with the Lenders that:
SECTION 6.01. Indebtedness; Certain Equity Securities. (a) CCSC will not,
----------------------------------------
and will not permit any Subsidiary to, create, incur, assume or permit to exist
any Indebtedness, except:
(i) Indebtedness created under the Loan Documents;
96
(ii) the Public Debt and the other Indebtedness existing on the
Effective Date and set forth in Schedule 6.01 and extensions, renewals,
refinancings, refundings and replacements of any such Indebtedness that do
not increase the outstanding principal amount thereof or result in an
earlier maturity date or decreased weighted average life thereof;
(iii) Indebtedness of CCSC to any Subsidiary and of any Subsidiary to
CCSC or any other Subsidiary; provided that Indebtedness of any Subsidiary
--------
that is not a Loan Party to CCSC or any Subsidiary Loan Party shall be
subject to Section 6.04;
(iv)(A) Guarantees by CCSC of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of CCSC or any other Subsidiary; provided
that Guarantees by CCSC or any Subsidiary Loan Party of Indebtedness of any
Subsidiary that is not a Loan Party shall be subject to Section 6.04 and
(B) Guarantees by CCSC or any Subsidiary of the obligations of a joint
venture to which CCSC or any Subsidiary is a party, to the extent such
Guarantees constitute investments permitted to exist under Section 6.04(g);
(v) Indebtedness arising from the honoring by a bank or other
financial institution of a check draft or similar instrument drawn against
insufficient funds in the ordinary course of business;
(vi) Indebtedness constituting Permitted Capital Markets Debt;
(vii) Indebtedness incurred in the ordinary course of business under
corporate purchasing cards;
(viii) Indebtedness of CCSC or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets or secured by a Lien on
any such assets prior to the acquisition thereof, and extensions, renewals
and replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date
or decreased weighted average life thereof; provided that (A) such
--------
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the aggregate
principal amount of Indebtedness permitted by this clause (viii) shall not
exceed $25,000,000 at any time outstanding;
97
(ix) Indebtedness incurred by any Subsidiary of CCSC which is not a
Loan Party;
(x) Indebtedness incurred pursuant to any Permitted Receivables
Financing; and
(xi) other unsecured Indebtedness in an aggregate principal amount not
exceeding $25,000,000 at any time outstanding.
(b) CCSC will not, nor will it permit any Subsidiary to, issue any
preferred stock or other preferred Equity Interest which (i) matures or is
mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is or may become redeemable or repurchaseable at the option of the
holder thereof, in whole or in part, or (iii) is convertible or
exchangeable at the option of the holder thereof for Indebtedness or
preferred stock or any other preferred Equity Interest described in this
paragraph, on or prior to, in the case of clause (i), (ii) or (iii), the
first anniversary of the Revolving Credit Maturity Date.
SECTION 6.02. Liens. CCSC will not, and will not permit any Subsidiary to,
-----
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien existing on the date hereof and set forth in Schedule
6.02; provided that (i) such Lien shall not apply to any other property or
--------
asset of CCSC or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals
and replacements thereof that do not increase the outstanding principal
amount thereof;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by CCSC or any Subsidiary; provided that (A) such Lien
--------
is not created in contemplation of or in connection with such acquisition,
(B) such Lien shall not apply to any other property or assets of CCSC or
any Subsidiary and (C) such Lien shall secure only those obligations which
it secures on the date of such acquisition and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof;
98
(e) Liens on fixed or capital assets acquired, constructed or improved
by CCSC or any Subsidiary; provided that (A) such security interests secure
--------
Indebtedness permitted by clause (viii) of Section 6.01(a), (B) such
security interests and the Indebtedness secured thereby are incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement, (C) the Indebtedness secured thereby does not
exceed 80% of the cost of acquiring, constructing or improving such fixed
or capital assets and (D) such security interests shall not apply to any
other property or assets of CCSC or any Subsidiary;
(f) Liens granted by CCSC or any of its Subsidiaries or a special
purpose, direct or indirect wholly-owned Subsidiary of CCSC that purchases
accounts receivable from CCSC or any of its Subsidiaries, in each case, to
the extent such Liens are granted on such accounts receivable to secure
Indebtedness that is permitted by clause (x) of Section 6.01(a);
(g) Liens granted by Subsidiaries of CCSC which are not Loan Parties,
provided that such Liens secure Indebtedness permitted by clause (ix) of
--------
Section 6.01(a); and
(h) Liens incidental to the conduct of CCSC's or any Subsidiary's
business or the ownership of its property and assets; provided, however,
that the aggregate amount of obligations secured by all of the foregoing
Liens referred to in this clause (h), does not at any time exceed in the
aggregate $25,000,000.
SECTION 6.03. Fundamental Changes. (a) CCSC will not, and will not permit
--------------------
any Subsidiary to, merge into or consolidate with any other Person, or permit
any other Person to merge into or consolidate with it, or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect thereto
no Default shall have occurred and be continuing (i) any Subsidiary may merge
into CCSC in a transaction in which CCSC is the surviving corporation, (ii) any
Subsidiary may merge with or into any Subsidiary in a transaction in which the
surviving entity is a Subsidiary and (if any party to such merger is a
Subsidiary Loan Party) is a Subsidiary Loan Party and (iii) any Subsidiary
(other than a Borrower) may liquidate or dissolve if CCSC determines in good
faith that such liquidation or dissolution is in the best interests of CCSC and
is not materially disadvantageous to the Lenders; provided that any such merger
--------
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.04.
99
(b) Notwithstanding the foregoing, (i) any Subsidiary of CCSC may
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to CCSC or any Subsidiary Loan Party, and any Subsidiary which
is not a Subsidiary Loan Party may dispose of assets to any other
Subsidiary which is not a Subsidiary Loan Party, (ii) any Subsidiary that
is a "shell" company, which Subsidiary has (x) assets with an aggregate
value not exceeding $100,001 and (y) no operations, may be dissolved and
(iii) any Subsidiary of CCSC may merge with any Person to form a joint
venture in which CCSC or a Subsidiary Loan Party holds an Equity Interest,
provided that the contribution of assets to such Subsidiary and such merger
--------
are permitted by Section 6.04(g).
(c) CCSC will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any material business other than
businesses of the type conducted by CCSC and its Subsidiaries on the date
of execution of this Agreement and businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
-----------------------------------------------------------
CCSC will not, and will not permit any of its Subsidiaries to, purchase, hold or
acquire (including pursuant to any merger with any Person that was not a wholly
owned Subsidiary prior to such merger) any Equity Interests in or evidences of
indebtedness or other securities (including any option, warrant or other right
to acquire any of the foregoing) of, make or permit to exist any loans or
advances to, Guarantee any obligations of, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date hereof (or in respect of which a
binding commitment to make such investment exists on the Effective Date)
and set forth on Schedule 6.04;
100
(c) investments by CCSC and its Subsidiaries in Equity Interests in
Subsidiary Loan Parties and investments by Subsidiaries that are not
Subsidiary Loan Parties in Equity Interests in other Subsidiaries that are
not Subsidiary Loan Parties; provided that (i) any such Equity Interests
--------
held by a Loan Party shall be pledged pursuant to a Pledge Agreement
(subject to the limitations applicable to Equity Interests of a Foreign
Subsidiary referred to in Section 5.11) and (ii) the aggregate amount of
investments by Loan Parties in, and loans and advances by Loan Parties to,
and Guarantees by Loan Parties of Indebtedness of, Subsidiaries that are
not Loan Parties (excluding all such investments, loans, advances and
Guarantees existing on the Effective Date) shall not exceed $100,000,000 at
any time outstanding;
(d) loans or advances made by CCSC to any Subsidiary and made by any
Subsidiary to CCSC or any other Subsidiary; provided that the amount of
--------
such loans and advances made by Loan Parties to Subsidiaries that are not
Loan Parties shall be subject to the limitation set forth in clause (c)
above;
(e) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that the aggregate principal amount of Indebtedness of
--------
Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party
shall be subject to the limitation set forth in clause (c) above;
(f) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(g) investments in joint ventures in an aggregate amount (including
the value of all assets contributed to or held by any Subsidiary which
merged or consolidated with any Person in order to form such joint
venture), on a cumulative basis subsequent to the Effective Date, not
exceeding the sum of (i) $50,000,000, plus (ii) the aggregate amount of
dividends, interest, principal payments and returns of capital received
from time to time subsequent to the Effective Date by CCSC and its
Subsidiaries in respect of investments made under this clause (g), provided
--------
that (A) the aggregate amount invested in joint ventures subsequent to the
Effective Date (excluding amounts invested in reliance upon clause (ii)
above) shall not at any time exceed $50,000,000 and (B) for purposes of
determining compliance with the foregoing limitations, any Guarantee by
CCSC or any Subsidiary of Indebtedness or other monetary obligations of a
joint venture shall be deemed to constitute an investment therein in an
amount equal to the Indebtedness or other monetary obligations so
Guaranteed;
101
(h) loans and advances to employees of CCSC or its Subsidiaries in the
ordinary course of business (including, without limitation, for travel,
entertainment and relocation expenses);
(i) investments consisting of the purchase of the Equity Interests of
any Person, if the purpose and effect of such investment is the
acquisition, directly or indirectly, of fixed or capital assets, and such
investment is made in lieu of the purchase or construction by CCSC or its
Subsidiaries of such fixed or capital assets;
(j) investments to the extent that the consideration paid by CCSC and
its Subsidiaries is capital stock of CCSC;
(k) other loans, advances and investments not in excess of $75,000,000
outstanding at any time, provided that the total amount of Net Cash
--------
Proceeds received from Prepayment Events described in clause (a) of the
definition thereof since the Effective Date and applied in accordance with
Section 2.05(d)(i) or 2.12(c) exceeds $500,000,000;
(l) notes or other evidence of Indebtedness acquired as consideration
in connection with a sale, transfer, lease or other disposition of any
asset by CCSC or any of its Subsidiaries, to the extent permitted by
Section 6.05; and
(m) investments in Equity Interests in any Receivables Subsidiary and
loans, advances, Guarantees and investments arising pursuant to any
Permitted Receivables Financing.
SECTION 6.05. Asset Sales. CCSC will not, and will not permit any of its
-----------
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset,
including any Equity Interest owned by it, nor will CCSC permit any of it
Subsidiaries to issue any additional Equity Interest in such Subsidiary, except:
102
(a) sales of inventory or used, surplus, obsolete, outdated,
inefficient or worn out equipment and other property in the ordinary course
of business;
(b) sales, transfers and dispositions to CCSC or a Subsidiary;
provided that any such sales, transfers or dispositions involving a Loan
--------
Party and a Subsidiary that is not a Loan Party shall be made in compliance
with Section 6.09;
(c) sales in connection with sale-leasebacks permitted under Section
6.06;
(d) sales of Permitted Investments;
(e) sales and other dispositions of accounts receivable pursuant to
any Permitted Receivables Financing;
(f) sales, transfers and dispositions of the business units specified
on Schedule 6.05; and
(g) sales, transfers and dispositions of assets (other than Equity
Interests of a Subsidiary) not otherwise permitted under this Section;
provided that the aggregate fair market value of all assets sold,
--------
transferred or otherwise disposed of in reliance upon this clause (g) shall
not, in the aggregate, exceed $10,000,000 during any Fiscal Year;
provided that all sales, transfers, leases and other dispositions permitted
- --------
hereby (other than those permitted by clauses (a), (b) and (e) above) shall be
made for fair value and (x) for at least 80% cash consideration, in the case of
sales, transfers, leases and other dispositions permitted by clause (g) and (y)
for 100% cash consideration in the case of sales, transfers, leases and other
dispositions permitted by clauses (c), (d) and (f).
SECTION 6.06. Sale and Leaseback Transactions. CCSC will not, and will not
-------------------------------
permit any of its Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby it shall sell or transfer any property, real or personal,
used or useful in its business, whether now owned or hereinafter acquired, and
thereafter rent or lease such property or other property that it intends to use
for substantially the same purpose or purposes as the property sold or
transferred, except for any such sale of any fixed or capital assets that is
made for cash consideration in an amount not less than the cost of such fixed or
capital asset and is consummated within 90 days after CCSC or such Subsidiary
acquires or completes the construction of such fixed or capital asset.
103
SECTION 6.07. Hedging Agreements. CCSC will not, and will not permit any of
------------------
its Subsidiaries to, enter into any Hedging Agreement, other than Hedging
Agreements entered into in the ordinary course of business to hedge or mitigate
risks to which CCSC or any Subsidiary is exposed in the conduct of its business
or the management of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of Indebtedness. (a)
------------------------------------------------------
CCSC will not, and will not permit any Subsidiary to, declare or make, or agree
to pay or make, directly or indirectly, any Restricted Payment, or incur any
obligation (contingent or otherwise) to do so, except (i) Subsidiaries may
declare and pay dividends ratably with respect to their Equity Interests, (ii)
CCSC may make Restricted Payments at such times and in such amounts, not
exceeding $1,000,000 during any Fiscal Year, pursuant to and in accordance with
stock option plans or other benefit plans for management or employees of CCSC
and its Subsidiaries and (iii) CCSC may, subject to Section 6.01(b), make
dividends consisting solely of shares of its capital stock.
(b) CCSC will not, and will not permit any Subsidiary to, make or
agree to pay or make, directly or indirectly, any payment or other
distribution (whether in cash, securities or other property) of or in
respect of principal of or interest on any Indebtedness, or any payment or
other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any
Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness;
(iii) refinancings of Indebtedness to the extent permitted by
Section 6.01;
(iv) payment of secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing
such Indebtedness;
104
(v) payment by Loan Parties of Indebtedness owed to Loan Parties
and payment by Subsidiaries which are not Loan Parties of Indebtedness
owed to CCSC and its Subsidiaries;
(vi) payment of Indebtedness under revolving credit facilities
permitted under clause (ix) of Section 6.01(a);
(vii) repurchases of any Public Debt that is scheduled to mature
prior to December 8, 2003; and
(viii) payment of Indebtedness created pursuant to any Permitted
Receivables Financing.
SECTION 6.09. Transactions with Affiliates. CCSC will not, and will not
------------------------------
permit any Subsidiary to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) transactions that are at prices and on terms and conditions not less
favorable to CCSC or such Subsidiary than could be obtained on an arm's-length
basis from unrelated third parties, (b) transactions between or among CCSC and
the Subsidiary Loan Parties not involving any other Affiliate and transactions
among Subsidiaries not involving any Loan Party, (c) any Restricted Payment
permitted by Section 6.08 and (d) pursuant to any Permitted Receivables
Financing.
SECTION 6.10. Restrictive Agreements. CCSC will not, and will not permit
-----------------------
any Subsidiary to, directly or indirectly, enter into, incur or permit to exist
any agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of CCSC or any Subsidiary to create, incur or
permit to exist any Lien upon any of its property or assets, or (b) the ability
of any Subsidiary to pay dividends or other distributions with respect to any of
its Equity Interests or to make or repay loans or advances to CCSC or any other
Subsidiary or to Guarantee Indebtedness of CCSC or any other Subsidiary;
provided that (i) the foregoing shall not apply to restrictions and conditions
- --------
imposed by law or by any Loan Document, (ii) the foregoing shall not apply with
respect to assets encumbered by Liens permitted by Section 6.02 as long as such
restriction applies only to the asset encumbered by such permitted Lien, (iii)
the foregoing shall not apply to restrictions and conditions existing on the
date hereof not otherwise excepted from this Section 6.10 identified on Schedule
6.10 (but shall apply to any amendment or modification expanding the scope of
any such restriction or condition), (iv) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary (or the assets of a Subsidiary) pending such sale, provided
such restrictions and conditions apply only to the Subsidiary that is to be sold
(or whose assets are to be sold) and such sale is permitted hereunder, (v)
clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness, (vi) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof and (vii) the foregoing shall not apply to restrictions and
conditions imposed by the terms of any Permitted Receivables Financing.
105
SECTION 6.11. Amendment of Material Documents. CCSC will not, and will not
-------------------------------
permit any Subsidiary to, amend, modify or waive, in a manner adverse to the
Lenders, any of its rights under (a) its Organic Documents or (b) any indenture
or other document evidencing or governing any of the Public Debt.
SECTION 6.12. Interest Expense Coverage Ratio. CCSC will not permit the
---------------------------------
ratio of (a) Consolidated EBITDA to (b) Consolidated Net Interest Expense, in
each case for any period of four consecutive Fiscal Quarters ending on any date
during any period set forth below, to be less than the ratio set forth below
opposite such period:
- --------------------------------------------------------------------------------
Period Ratio
- --------------------------------------------------------------------------------
June 30, 2001 through March 30, 2002 1.65 to 1.00
- --------------------------------------------------------------------------------
March 31, 2002 through March 30, 2003 1.70 to 1.00
- --------------------------------------------------------------------------------
March 31, 2003 and thereafter 1.75 to 1.00
- --------------------------------------------------------------------------------
106
SECTION 6.13. Leverage Ratio. CCSC will not permit the Leverage Ratio as of
--------------
any date during any period set forth below to exceed the ratio set forth
opposite such period:
- --------------------------------------------------------------------------------
Period Ratio
- --------------------------------------------------------------------------------
June 30, 2001 through March 30, 2002 6.75 to 1.00
- --------------------------------------------------------------------------------
March 31, 2002 through March 30, 2003 6.25 to 1.00
- --------------------------------------------------------------------------------
March 31, 2003 and thereafter 6.00 to 1.00
- --------------------------------------------------------------------------------
SECTION 6.14. Asbestos Payments. CCSC will not, and will not permit any
------------------
Subsidiary to, make any Asbestos Payments that would result in the aggregate
amount of Asbestos Payments made in any period of four consecutive Fiscal
Quarters ending prior to the Revolving Credit Maturity Date exceeding
$200,000,000 (calculated on a pre-tax basis).
SECTION 6.15. Debt Repayment Funds. CCSC will not make, or permit any
----------------------
Subsidiary to make, any payment (whether at maturity or pursuant to any
redemption, repurchase, acquisition or otherwise) in respect of the principal of
the 6.75% Senior Notes due 2003 unless, after giving effect thereto, the
aggregate amount of all such payments made since the Effective Date would not
exceed the sum of (a) Consolidated EBITDA for the period from March 1, 2001
through the end of the most recent month for which financial information is
available, minus (b) Consolidated Net Interest Expense, the cash portion of tax
-----
expense actually paid and Non-Cash Charges, in each case to the extent added to
Consolidated Net Income for purposes of determining Consolidated EBITDA for such
period, minus (c) the sum of all additions to property, plant and equipment and
-----
other capital expenditures of CCSC and its consolidated Subsidiaries that would
be set forth in a consolidated statement of cash flow of CCSC for such period
prepared in accordance with GAAP, minus (d) Asbestos Payments made during such
-----
period plus (e) the excess, if any, of (i) the aggregate amount of Net Cash
----
Proceeds received during the period from March 1, 2001 to the date of such
payment from Prepayment Events described in clause (a) of the definition of the
term "Prepayment Event" over (ii) the sum of (A) all Term Loans prepaid pursuant
to Section 2.05(d) and all Revolving Credit Commitments reduced pursuant to
Section 2.12(c), in each case to the extent attributable to such Net Cash
Proceeds, plus (B) $350,000,000.
107
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, LC Disbursements or Letters of Credit are outstanding,
and (ii) an "Event of Termination", if no Loans, LC Disbursements or Letters of
Credit are outstanding.
(a) Any Borrower shall default (i) in the payment when due of any
principal of any Loan or any reimbursement obligation in respect of any LC
Disbursement, (ii) in the payment when due of any interest on any Loan (and
such default shall continue unremedied for a period of three Business
Days), or (iii) 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 2.11 or of any other amount (other than an
amount referred to in the foregoing clauses (i) and (ii)) payable under
this Agreement or any other Loan Document.
(b) Any representation or warranty of CCSC or any other Loan Party
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 other
Loan Party to the Administrative Agent, the Issuing Bank or any Lender for
the purposes of or in connection with this Agreement or any such other Loan
Document is or shall be incorrect in any material respect when made or
deemed made.
(c) CCSC shall default in the due performance and observance of any of
its obligations under clause (e), (f) or (i) of Section 5.01, clause (a) of
Section 5.02 (with respect to the maintenance and preservation of CCSC's
corporate existence) or Article VI.
(d) CCSC or any other Loan Party shall default in the due performance
and observance of any agreement (other than those specified in paragraphs
(a) through (c) above) 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 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
Material Indebtedness or (ii) in the performance or observance of any
obligation or condition with respect to any Material Indebtedness if the
effect of such default referred to in this clause (ii) is to accelerate the
maturity of any such Material Indebtedness or that enables or permits (with
or without the giving of notice, the lapse of time or both) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or
their behalf to cause any such Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof, prior
to its scheduled maturity; provided, that this clause (ii) shall not apply
--------
to any default under any such Material 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 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 any such Material Indebtedness of an
Immaterial Subsidiary.
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(f) Any judgment or order (or combination of judgments and orders) for
the payment of money equal to or in excess of $50,000,000 shall be rendered
against CCSC or any of its Subsidiaries (or any combination thereof) 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 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.
(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
109
(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 Subsidiaries (other than Immaterial
Subsidiaries) shall (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
such 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 such
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
such 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 such
Subsidiaries, and, if any such case or proceeding is not commenced by
CCSC or such Subsidiary, such case or proceeding shall be consented to
or acquiesced in by CCSC or such 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 such 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
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(v) take any corporate or partnership action (or comparable
action, in the case of any other form of legal entity) authorizing, or
in furtherance of, any of the foregoing.
(j) The obligations of CCSC under Article IX or the obligations of any
other Loan Party under the Guarantee Agreements shall cease to be in full
force and effect or CCSC or any such other Loan Party shall repudiate its
obligations thereunder.
(k) Any Lien purported to be created under any Security Document shall
fail or cease to be, or shall be asserted by any Loan Party not to be, a
valid and perfected Lien on any Collateral, with the priority required by
the applicable Security Document (subject to the terms of the Intercreditor
Agreement), except as a result of (i) the Collateral Agent's failure to
take any action reasonably requested by CCSC in order to maintain a valid
and perfected Lien on any Collateral or (ii) any action taken by the
Collateral Agent to release any Lien on any Collateral.
SECTION 7.02. Action if Bankruptcy. If any Event of Default described in
--------------------
clauses (i) through (v) of Section 7.01(i) shall occur, the 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, all of which are hereby waived by the Borrowers.
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 (v) 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 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 Commitments shall terminate.
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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 CCSC and the Lenders (except if an Event of
Termination described in clauses (i) through (v) of Section 7.01(i) shall have
occurred, in which case the Commitments (if not theretofore terminated) shall,
without notice of any kind, automatically terminate) declare their Commitments
terminated, and upon such declaration the Lenders shall have no further
obligation to make any Loans hereunder. Upon such termination of the
Commitments, all accrued fees and expenses shall be immediately due and payable.
ARTICLE VIII
The Agents
----------
In order to expedite the transactions contemplated by this Agreement, The
JPMorgan Chase Bank is hereby appointed to act as Administrative Agent and
Collateral Agent on behalf of the Lenders. Each of the Lenders and each assignee
of any such Lender, hereby irrevocably authorizes each of the Agents to take
such actions on behalf of such Lender or assignee and to exercise such powers as
are specifically delegated to such Agent by the terms and provisions hereof and
of the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto. Each 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 any of the Borrowers of any
Default specified in this Agreement of which such 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 such Agent.
Neither Agent nor any of its Related Parties shall be liable to the Lenders
as such for any action taken or omitted by any of them except for its or his or
her 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 any Loan Party of any of the
terms, conditions, covenants or agreements contained in any Loan Document. The
Agents 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. Each Agent shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with written instructions signed by the Required Lenders (or, when expressly
required hereby, all the Lenders) and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each 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 any Agent nor any of its Related Parties shall
have any responsibility to the Loan Parties 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 Loan Parties of any of their respective obligations
hereunder or under any other Loan Document or in connection herewith or
therewith. Each Agent may execute any and all duties hereunder by or through any
of its Related Parties or any sub-agent appointed by it 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.
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The Lenders hereby acknowledge that neither Agent shall be under any duty
to take any discretionary action permitted to be taken by it pursuant to the
provisions of any Loan Document unless it shall be requested in writing to do so
by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as provided
below, either Agent may resign at any time by notifying the Lenders, the Issuing
Bank 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 Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a
successor 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 an Agent hereunder
by such a successor bank, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After an 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 an Agent.
113
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as an Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
such 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 an Agent.
Each Lender acknowledges that it has, independently and without reliance
upon either 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 enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon either 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. Each Lender hereby
authorizes the Administrative Agent to enter into the Intercreditor Agreement on
behalf of such Lender and to exercise its rights and perform its obligations
thereunder.
ARTICLE IX
Guarantee
---------
SECTION 9.01. Guarantee. In order to induce the Administrative Agent, the
---------
Issuing Bank and the Lenders to execute and deliver this Agreement and to make
or maintain the Loans and to issue Letters of Credit hereunder, and in
consideration thereof, CCSC hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety, to the Agents, for the ratable
benefit of the Issuing Bank and 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 Agents, the Issuing Bank or any Lender 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 all Letters of Credit issued for the account of any
Subsidiary Borrower have terminated, the Subsidiary Borrower Obligations are
paid in full and the Commitments are terminated, notwithstanding that from time
to time prior thereto any Subsidiary Borrower may be free from any Subsidiary
Borrower Obligations.
114
CCSC agrees that whenever, at any time, or from time to time, it shall make
any payment to either Agent, the Issuing Bank or any Lender on account of its
liability under this Article IX, it will notify such Agent, the Issuing Bank 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 either
Agent, the Issuing Bank 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 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 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 Agents, the
Issuing Bank or any Lender may be rescinded by the Agents, the Issuing Bank 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 Agents, the Issuing Bank 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 Agents, the Issuing Bank or any Lender for the payment of
the Subsidiary Borrower Obligations may be sold, exchanged, waived, surrendered
or released. Neither the Agents, the Issuing Bank 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.
115
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 Agents, the
Issuing Bank or any Lender upon the guarantee contained 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 Agents, the
Issuing Bank 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 Agents 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 or any other Loan Document,
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 either Agent, the Issuing Bank 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 Agents, the Issuing Bank 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 either Agent, the
Issuing Bank or any Lender is pursuing its rights and remedies under this
Article IX against CCSC, either Agent, the Issuing Bank or any Lender may, but
shall be under no obligation to, pursue such rights and remedies as it may 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 either Agent, the Issuing Bank
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 Agents, the Issuing Bank and the Lenders against CCSC.
116
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 either Agent, the
Issuing Bank 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 Issuing Bank or the relevant
Lender(s), in Dollars or in the applicable Alternative Committed Currency (if
applicable) at the applicable office of the Administrative Agent specified in
Section 10.01.
117
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 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.
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 One Crown Way, Philadelphia, Pennsylvania
19154, attention of Mr. Michael B. Burns; (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 either Agent (x) at its London office to JPMorgan Chase
Bank, London, 9 Thomas More Street, London E1W 9YT, Attention of Stephen
Clarke (Telecopy No. 44-207-777-2360 or 2085), with a copy to JPMorgan
Chase Bank, Agency Services Group, One Chase Manhattan Plaza, 8th Floor,
New York, New York 10081, Attention of Sonia Rosario-Cancar (Telecopy No.
(212) 552-5658) and (y) at its New York office to JPMorgan Chase Bank,
Agency Services Group, at its address in (x) above, with copies to (A)
JPMorgan Chase Bank, at 270 Park Avenue, New York, New York 10017,
Attention of Douglas Ogle (Telecopy No. (212) 270-5120) and (B) JPMorgan
Chase Bank, London, at its address in (x) above;
118
(iv) if to the Issuing Bank, to it at JPMorgan Chase Bank, at 270 Park
Avenue, New York, New York 10017, Attention of Charles Freedgood (Telecopy
No. (212) 622-4834); and
(v) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or its Administrative Questionnaire 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.
(b) CCSC shall forthwith on demand indemnify each Lender against any
loss or liability which that Lender incurs (and that Lender shall not be
liable to any 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 any Borrower having in fact been sent by a
Person other than such 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 other parties hereto and shall survive the making
by the Lenders of the Loans and issuance of any Letters of Credit, regardless of
any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, the Issuing Bank or any Lender
may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, 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 or any Letter of Credit is outstanding
and so long as the Commitments have not been terminated. The provisions of
Sections 2.16, 2.17, 2.18 and 10.05 and Article VIII shall survive and remain in
full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Letters of Credit and the Commitments or the termination of this
Agreement or any provision hereof.
119
SECTION 10.03. Binding Effect. Subject to Section 4.01, 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 (including any Affiliate of
the Issuing Bank that issues any Letter of Credit); and all covenants, promises
and agreements by or on behalf of the Borrowers, the Agents or the Lenders that
are contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, solely to
the extent expressly contemplated hereby, the Affiliates of each of the Agents,
the Issuing Bank and the Lenders and each of their respective directors,
officers and employees) any legal or equitable right, remedy or claim under or
by reason of this Agreement.
120
(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 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 a Lender Affiliate, CCSC and the Administrative Agent (and, in the case
of any assignment of a Revolving Credit Commitment or any Lender's
obligations in respect of its LC Exposure or Swingline Exposure, the
Issuing Bank and the Swingline Lender) must give their prior written
consent to such assignment (which consent shall not be unreasonably
withheld, it being agreed that neither CCSC, the Issuing Bank nor the
Swingline Lender will be deemed to act unreasonably if it shall withhold
consent on the basis of reasonable concerns relating to a proposed
assignee's creditworthiness or reputation), (ii) the amount of the
Commitment or Loans 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 (x) $4,350,000 or (y) if the adjustments set forth in Section 2.12(f)
have occurred, $4,500,000 (or, in either case, (A)if the aggregate amount
of the Commitment or Loans of the assigning Lender is a lesser amount, the
entire amount of such Commitment or Loans, or (B) in any other case, such
lesser amount as CCSC and the Administrative Agent otherwise agree), (iii)
each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender's rights and obligations under this
Agreement, except that this clause (iii) shall not be construed to prohibit
the assignment of a proportionate part of all the assigning Lender's rights
and obligations in respect of one Class of Commitments and Loans, (iv)
except in the case of the assignment to an Affiliate of such Lender or an
assignment required to be made pursuant to Section 2.21, 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, (v) the assignee, if it shall not be a Lender, shall deliver
to the Administrative Agent an Administrative Questionnaire and (vi) the
Tranche B Revolving Lenders may only make such assignment to a Person
qualified to carry out banking activities in the European Union; provided
--------
further that any consent of CCSC otherwise required under this paragraph
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shall not be required if an Event of Default under Section 7.01 has
occurred and is continuing. Subject to 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, and (B) the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and
Acceptance, be 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 2.16, 2.17, 2.18 and 10.05, as
well as to any Fees accrued for its account and not yet paid). Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with paragraph (f) of this
Section.
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(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 Commitment, and the outstanding balances of
its Loans and participations in Swingline 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
either 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 each Agent
to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to such 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.
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(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
Commitment of, and principal amount of the Loans and LC Disbursements, and
participations in Swingline Loans, owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). Except to the extent
--------
inconsistent with Section 2.08(d), the entries in the Register shall be
conclusive and the Borrowers, the Agents, the Issuing Bank 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, the Issuing Bank 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, the Issuing Bank, the Swingline Lender 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).
123
(f) Each Lender may without the consent of CCSC, the Swingline Lender,
the Issuing Bank or the Administrative Agent sell participations to one or
more banks or other entities (each, a "Participant") in all or a portion of
-----------
its rights and obligations under this Agreement (including all or a portion
of its 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 the other parties hereto for
the performance of such obligations, (iii) each Participant shall be
entitled to the benefit of the cost protection provisions contained in
Sections 2.16, 2.17 and 2.18 and the provisions of Section 5.01 to the same
extent as if they were Lenders and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 10.04 (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 unless such transfer to such
Participant is made with CCSC's prior written consent, except that this
proviso shall not apply to any Tranche A Revolving Lender which is a
Participant in a Tranche B Revolving Loan), and (iv) the Borrowers, the
Agents, the Issuing Bank 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 (except in the case of a Participant
that is a Tranche A Revolving Lender and holds a participation in the
Tranche B Revolving Credit Commitment or Tranche B Revolving Loan of a
Tranche B Revolving Lender) 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 Loan
Documents and to approve any amendment, modification or waiver of any
provision of the Loan Documents (other than, without the consent of the
Participant, amendments, modifications or waivers described in the first
proviso of Section 10.08(b) that affect such Participant) except
JPMorgan Chase Bank, London may allocate any proportion of its Tranche
B Revolving Credit Commitment or Tranche B Revolving Loans in order to vote
separate portions thereof in accordance with the direction of any
Participant that (x) purchased any such portion on or before the Amendment
and Restatement Effective Date and (y) was a Tranche B Revolving Lender
immediately prior to such purchase. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.06 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.20 as though it were a Lender.
(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 CCSC and its Subsidiaries
furnished to such Lender by or on behalf of any of the Loan Parties;
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 pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to
a Federal Reserve Bank and this Section 10.04 shall not apply to any such
pledge or assignment of a security interest; provided that no such pledge
--------
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto. In order to facilitate such a pledge or
assignment, 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.
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(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
and a Subsidiary Borrower Closing Certificate (modified to reflect an
assignment rather than the making of a Loan) 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, and upon delivery
of a Subsidiary Borrower Closing Certificate (modified to reflect an
assignment rather than the making of a Loan)) 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 were 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 2.11 or Article
IX.
SECTION 10.05. Expenses; Indemnity. (a) The Borrowers jointly and severally
-------------------
agree to pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Collateral Agent and their respective Affiliates,
including the reasonable fees, charges and disbursements of Cravath, Swaine &
Moore, counsel for the Administrative Agent, in connection with the syndication
of the credit facilities provided for herein, 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
(whether or not the transactions hereby contemplated shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent, the Issuing
Bank, or any Lender in connection with the enforcement or protection of their
rights in connection with this Agreement (including its rights under this
Section), the other Loan Documents or the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit, and, in connection with any such enforcement or protection, the
reasonable fees, charges and disbursements of any other counsel for the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender,
provided, however, that the Borrowers shall not be obligated to pay for expenses
- -----------------
incurred by a Lender in connection with the assignment of Loans to an assignee
Lender (except pursuant to Section 2.21) or the sale of Loans to a participant
pursuant to Section 10.04.
125
(b) The Borrowers jointly and severally agree to indemnify the
Administrative Agent, the Collateral Agent, the Issuing Bank, each Lender,
each Affiliate of any of the foregoing Persons and each of their respective
Related Parties (other than agents or advisors) (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 hereto or 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 or Letters of Credit (including any refusal by
the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly
comply with the terms of such Letter of Credit), (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 CCSC or any of the Subsidiaries, or any Environmental Liability
or 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) or (b)
by reason of the Indemnitee's gross negligence or wilful misconduct.
126
(c) To the extent that any Borrower fails to pay any amount required
to be paid by it to either Agent, the Issuing Bank or the Swingline Lender
under paragraph (a) or (b) of this Section, each Lender severally agrees to
pay to such Agent, the Issuing Bank or the Swingline Lender, as the case
may be, such Lender's pro rata share (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount (other than syndication expenses); provided that the
--------
unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against
the applicable Agent, the Issuing Bank or the Swingline Lender in its
capacity as such. For purposes hereof, a Lender's "pro rata share" shall be
determined based upon its share of the sum of the total Revolving Credit
Exposures, outstanding Term Loans and unused Commitments at the time.
(d) To the extent permitted by applicable law, no Borrower shall
assert, and each hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or Letter of
Credit or the use of the proceeds thereof.
(e) 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 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 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 or Event of
-----------------
Termination 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 such 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 by such Borrower 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 and the Administrative Agent after making any
such setoff.
127
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 either Agent,
------------------
the Issuing Bank 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 Agents, the Issuing Bank and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or
remedies which 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.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether an Agent, any Lender or the Issuing Bank may have
had notice or knowledge of such Default at the time. 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.
128
(b) Neither this Agreement, any other Loan Document, the Intercreditor
Agreement nor any provision hereof or thereof may be waived, amended or
modified except, in the case of this Agreement, pursuant to an agreement or
agreements in writing entered into by the Borrowers and the Required
Lenders or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Agent and the Loan
Party or Loan Parties or other Persons that are parties thereto, in each
case with the consent of the Required Lenders; provided, however, that no
------------------
such agreement shall (i) decrease the principal amount of any Loan or LC
Disbursement, or extend the maturity of or any scheduled principal payment
date or date for the payment of any interest on any Loan or the required
date of reimbursement of any LC Disbursement, or waive or excuse any such
payment or any part thereof, or decrease the rate of interest on any Loan
or LC Disbursement, or postpone the scheduled date of termination of any
Commitment, without the prior written consent of each Lender affected
thereby, (ii) change or extend the Commitment or decrease the Facility Fee
or LC Fee of any Lender without the prior written consent of such Lender,
(iii) amend or modify the provisions of Section 2.14, the provisions of
this Section, the definition of "Required Lenders", or any other provision
of any Loan Document specifying the number or percentage of Lenders (or
Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder
without the prior written consent of each Lender (or each Lender of such
Class, as the case may be), (iv) release any Loan Party from its Guarantee
under Article IX or a Guarantee Agreement (except as expressly provided in
this Agreement or such Guarantee Agreement), or limit its liability in
respect of such Guarantee, without the written consent of each Lender, (v)
release all or any substantial part of the Collateral from the Liens of the
Security Documents (except as expressly provided in this Agreement or the
Security Documents) or materially and adversely affect allocations due to
the Lenders under the Intercreditor Agreement, without the written consent
of each Lender, (vi) change any provisions of any Loan Document in a manner
that by its terms adversely affects the rights in respect of payments due
to Lenders holding Loans of any Class differently than those holding Loans
of any other Class, without the written consent of Lenders holding a
majority in interest of the outstanding Loans and unused Commitments of
each affected Class or (vii) change any provision of any Loan Document in a
manner which by its terms adversely affects the rights of Term Lenders to
receive prepayments on Term Loans and distributions in respect of
Collateral prior to Revolving Lenders without the written consent of each
Term Lender; provided further that no such agreement shall amend, modify or
----------------
otherwise affect the rights or duties of either Agent, the Issuing Bank or
the Swingline Lender hereunder or under any other Loan Document without the
prior written consent of such Agent, the Issuing Bank or the Swingline
Lender, as the case may be. Notwithstanding the foregoing, any provision of
this Agreement may be amended by an agreement in writing entered into by
the Borrowers, the Required Lenders and the Administrative Agent (and, if
their rights or obligations are affected thereby, the Issuing Bank and the
Swingline Lender) if (i) by the terms of such agreement the Commitment of
each Lender not consenting to the amendment provided for therein shall
terminate upon the effectiveness of such amendment and (ii) at the time
such amendment becomes effective, each Lender not consenting thereto
receives payment in full of the principal of and interest accrued on each
Loan made by it and all other amounts owing to it or accrued for its
account under this Agreement.
129
(c) A Tranche B Revolving Lender may allocate any proportion of its
Tranche B Revolving Credit Commitment or Tranche B Revolving Loans with
respect to any waiver, amendment, modification, consent or any other action
pursuant to this Section 10.08 or any other Loan Document in order to vote
separate portions thereof differently with respect thereto.
SECTION 10.09. Interest Rate. (a) 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
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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
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.
(b) Effective Global Rate. In order to fulfill the obligations imposed
---------------------
by articles L. 313-1 and L. 313-2 of the French Consumer Code ("Code de la
Consommation"), JPMorgan Chase Bank, London represents to the French
Borrowers, who accept such representation, that the effective global rate
("taux effectif global") calculated in accordance with the articles
referred to above, on the basis of a 365-day year, is 4.70191% per annum.
The effective global rate ("taux effectif global") was calculated on the
basis of utilization of the Total Tranche B Revolving Credit Commitment, on
February 28, 2001 and LIBO for an Interest Period of six months on February
28, 2001 of 4.70191%. Such rate is given on an indicative basis and shall
not be binding on the Lenders in the future.
130
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 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.
131
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 the
Administrative Agent, the Collateral Agent, the Issuing Bank or 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 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 referred to in
paragraph (a) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
132
(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 or any other Loan Document 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 appoints CCSC at
its offices at One Crown Way, Philadelphia, Pennsylvania, 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 and the other Loan
Documents (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 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.
133
SECTION 10.17. Confidentiality. Each of the Agents, the Issuing Bank and
---------------
the Lenders agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its and its
Affiliates' investment advisors, directors, officers, employees and agents,
including accountants, legal counsel and other advisors and any direct or
indirect contractual counterparty in swap agreements entered into in connection
with a Lender's outstanding Loans from time to time or to such contractual
counterparty's professional advisor (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential and, in the
case of any such contractual counterparty or its professional advisor, such
persons shall agree in writing to be bound by the provisions of this Section
10.17), (b) to the extent requested by any regulatory authority, (c) to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d) to any other party to this Agreement, (e) in connection with
the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of CCSC or (h)
to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than CCSC or one of its Subsidiaries.
For the purposes of this Section, "Information" means all information received
-----------
from CCSC relating to it or its business, other than any such information that
is available to the Administrative Agent, the Collateral Agent, the Issuing Bank
or any Lender on a nonconfidential basis prior to disclosure by CCSC or one of
its Subsidiaries. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
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SECTION 10.18. Joint Liability of French Borrowers. Notwithstanding
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anything to the contrary, each French Borrower shall be jointly and severally
liable ("codebiteur solidaire") for all the other Subsidiary Borrower
Obligations of the French Borrowers.
[Remainder of page intentionally left blank]
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 /s/ Alan W. Rutherford
-----------------------------
Name: Alan W. Rutherford
Title: Vice Chairman of the Board,
Executive Vice President and
Chief Financial Officer
Attest:
[Corporate Seal]
by /s/ Rose Haselroth
----------------------
Name: Rose Haselroth
Title: Assistant Secretary
JPMORGAN CHASE BANK, individually
and as Administrative Agent,
by /s/ Charles Freedgood
--------------------------------
Name: Charles Freedgood
Title: Managing Director
J.P. MORGAN EUROPE LIMITED
by /s/ K. Crooks
--------------------------------
Name: K. Crooks
Title: Associated
by /s/ C. Walsh
--------------------------------
Name: C. Walsh
Title: Associated
EACH OF THE SUBSIDIARY BORROWERS
LISTED ON SCHEDULE I HERETO,
by /s/ Alan W. Rutherford
---------------------------------
Name: Alan W. Rutherford
Title: Authorized Signatory